R. v. Y.G., 2020 MBPC 8

CITATION: R. v. Y.G. , 2020 MBPC 8 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) Erika Dolcetti and Lianni Nair for the Crown ) - and - ) ) ) Y.G. ) ) Saheel Zaman for the Accused ) ) ) ) Judgment delivered: February 5, 2020 E R R A T U M A correction has been made to the above noted decision at page 9, paragraph 33.

Restriction on publication: By court order under Sections 110(1) and 111(1) of the Youth Criminal Justice Act prohibits the publication of any information that may identify the young person having been dealt with under this Act and the victim and witness involved in this proceeding. C.A DEVINE, P.J. [ 1 ] I convicted Y.G. of manslaughter after trial ( R. v. Y.G. , 2019 MBPC 57 ). The Crown has brought an application pursuant to

section 64 of the Youth Criminal Justice Act to have the young person sentenced as an adult. The Crown wishes to adduce evidence from a police officer gang expert at the adult sentence application. The Defence is opposed to the admission of that evidence.

This is my decision about whether the proposed expert evidence and expert meet the threshold criteria for admissibility. [ 2 ] The opinion evidence that the Crown wishes to tender is set out as follows in an exhibit filed in the voir dire : Expert in the TFN (The/m Fucking Niggaz) and MMM (Money Makin Malis) Street gang, their mode of operation, their geographic territory, their signs and identifiers and the drug trade.

She will be asked to provide the opinion that Y.G. was an active TFN gang member at the time of the homicide of Tyler Ranville and remained so when being charged and ultimately detained for the homicide. [ 3 ] It was conceded by the Crown that because proof of gang membership or involvement is an aggravating factor in sentencing and is therefore subject to the criminal standard of proof, the standard of proof of gang membership should also be beyond a reasonable doubt at the adult sentence application.

THE ADMISSIBILITY OF EXPERT EVIDENCE [ 4 ] As a general rule, witnesses are not permitted to testify about their opinions. The trier of fact draws inferences and comes to decisions based on the factual observations and other types of evidence that witnesses provide in court. The general prohibition concerning opinion evidence rests on that type of evidence’s unreliability and irrelevance. There is a category of opinion evidence that is an exception to the general exclusionary rule however, and that is expert opinion evidence.

Justice Doherty explained the general rule and exception to the rule most cogently in R. v. Abbey , 2009 ONCA 624 ( Abbey #1 ) :

It is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using thatevidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from theirown work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference thatshould be drawn from that material.

The trier of fact must then decide whether to accept or reject the expert's opinion as to theappropriate factual inference. (at para. 71) [5] Expert opinion evidence, as a subset of opinion evidence, is still presumptively inadmissible. It must meet threshold standardsto be admitted and is subject to rigorous consideration throughout. Justice Doherty continued in that same paragraph in Abbey #1: Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently,expert opinion evidence is presumptively inadmissible.

The party tendering the evidence must establish its admissibility on the balanceof probabilities: Paciocco and Stuesser, at pp. 184, 193; Hon. Jus. S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams'Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2009), at para. 12:30.10. (at para. 71) [6] The governing principles and tests for the admission of expert opinion evidence are set out in R. v. Mohan, (SCC), 1994 CarswellOnt 66 (S.C.C.), Abbey #1, R. v. Abbey, 2017 ONCA 640 (Abbey #2) and R. v.

White Burgess Langille Inman v.Abbott and Haliburton Co., 2015 SCC 23 (White Burgess), which is the most recent treatment of expert opinion evidence by theSupreme Court of Canada. [7] A shift in the law with respect to expert opinion evidence has occurred since the mid-1990’s. Prior to that, the threshold foradmissibility of expert opinion evidence was understood as being very low, with the bulk of the analysis being left to a determination ofhow much weight it should be given.

Justice Cromwell, writing for the Supreme Court in White Burgess, discussed this shift in the law: Since at least the mid-1990s, the Court has responded to a number of concerns about the impact on the litigation process of expertevidence of dubious value.

The jurisprudence has clarified and tightened the threshold requirements for admissibility, added newrequirements in order to assure reliability, particularly of novel scientific evidence, and emphasized the important role that judges shouldplay as “gatekeepers” to screen out proposed evidence whose value does not justify the risk of confusion, time and expense that mayresult from its admission. (at para. 16) [8] The tightening of the admissibility requirements followed several cases of wrongful convictions and miscarriages of justicewhere judges and juries relied on flawed scientific evidence and unreliable expert evidence. (The Honourable Stephen T.

Goudge(Commissioner), Inquiry into Pediatric Forensic Pathology in Ontario (“The Goudge Report”) (2008), Vol. p. 47). Therefore, thethreshold for admissibility of expert opinion evidence is higher and the evidence remains under scrutiny throughout the hearing. [9] Consideration of the proposed evidence can be roughly broken into two stages. At the first or threshold stage, the proponent ofthe evidence must satisfy the court on a balance of probabilities that the evidence is relevant, necessary, would not be subject to anyother exclusionary rule of evidence and will be tendered by a properly qualified expert.

If the evidence is novel science or the applicationof science for a novel purpose, the evidence is subject to additional scrutiny. [10] If the evidence meets the threshold tests, the expert may testify, but the court continues to play a gate-keeping function todetermine admissibility: the court continues throughout, to determine the probative versus prejudicial value of the evidence, continuingto assess whether particular portions of the expert’s evidence are relevant, necessary, otherwise excluded, and whether the expert istestifying within the scope, purpose and parameters that were allowed and delineated at the threshold stage of analysis. [11] This decision concerns the threshold admissibility of proposed expert evidence. [12] The Crown’s proposed witness is Constable Kimberley Schmeichel of the Winnipeg Police Service Guns and Gangs Unit andmember of the Winnipeg Police Service Gang Expert Program.

THRESHOLD ADMISSIBILITY OF EXPERT EVIDENCE [13] The threshold at this stage of the analysis with respect to the admission and treatment of expert evidence should not be confusedwith the ongoing assessment of the scope and propriety of the opinion evidence for the purpose of determining its probative value versusits prejudicial value.

Justice Laskin, writing for the Ontario Court of Appeal in Abbey #2, set out the new analytical framework for the admission of expert opinion evidence (adopting the outline of the test of Professor Lisa Dufraimont, (2015), 18 C.R. (7th) 312-313),stating: The modern Canadian law on the admissibility of expert evidence began with the judgment of Sopinka J. in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9 (S.C.C.). But in the last two decades since Mohan was decided the law on expert evidence has changedsignificantly.

In Abbey #1 itself - on the Crown’s appeal from the acquittal at the first trial - my colleague Doherty J.A. reformulated theMohan test for admissibility to make it easier to apply. And recently in White Burgess Langille Inman v. Abbott and Haliburton Co.,2015 SCC 23, [2015] 2 S.C.R. 182 (S.C.C.), Cromwell J. adopted with “minor adjustments” Doherty J.A.’s reformulation of Mohan.2. The test in White Burgess is now the governing test for the admissibility of expert evidence.

It adopts a two-stage approach, firstsuggested in Abbey #1: the first stage focuses on threshold requirements of admissibility; the second stage focuses on the trial judge’sdiscretionary gatekeeper role. Each stage has a specific set of criteria. The test may be summarized as follows: Expert evidence is admissible when:

(1) It meets the threshold requirements of admissibility, which are: a. The evidence must be logically relevant; b. The evidence must be necessary to assist the trier of fact;

c. The evidence must not be subject to any other exclusionary rule; d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert’s duty to the court to provide evidence that is: i. Impartial, ii. Independent, and iii. Unbiased. e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose, and

(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as: a. Legal relevance; b. Necessity; c. Reliability; and d. Absence of bias. In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission.

If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements. ( Abbey #2 at paras. 46 – 49) [ 14 ] Although the Defence stated that he is opposed to the admission of the evidence on all four of these bases, his main arguments focused on the qualifications of the proposed expert. 1. Logically relevant to an issue in the trial [ 15 ] At this stage, we are referring to logical, as opposed to legal relevance.

As Justice Doherty explained in Abbey #1 : When I speak of relevance as one of the preconditions to admissibility, I refer to logical relevance.

I think the evaluation of the probative value of the evidence mandated by the broader concept of legal relevance is best reserved for the " gatekeeper " phase of the admissibility analysis. (at para. 84) (Emphasis added.) [ 16 ] The proposed opinion evidence of the expert is that the young person was a member of the TFN gang at the time of the manslaughter on August 18, 2017 and shortly after that, when he was charged and detained in custody for the homicide. [ 17 ] Gang membership and association is a personal characteristic or lifestyle that is logically relevant to the issues set out in

section 72 of the Youth Criminal Justice Act , that is, whether the Crown can rebut the presumption of reduced moral culpability for young persons and whether a youth sentence would be of sufficient length to hold the young person accountable. Where the young person engages in a high degree of intentional risk taking, this would tend to show increased moral culpability.

Therefore, membership in a gang that is engaged in criminal activity, violence towards other gangs and drug dealing would be relevant to a determination of whether a person should be sentenced as a youth or as an adult. [ 18 ] Gang involvement was an important factor in determining that a youth sentence would not be appropriate in R. v. Bone (20 August 2015), MBPC at 8, and (22 September 2015), MBPC.

Judge Heinrichs noted that the young person was exhibiting adult behavior and decision-making at the time of the shooting, was AWOL from his home, never being there except to shower, his whereabouts were unknown most of the time, and he was hanging out with and doing missions for gang members. There was gang involvement in the homicide and Bone gave the gun to the person who shot the deceased. [ 19 ] Gang lifestyle was also taken into account by the youth court judges in R. v. H(CT) 2015 MBCA 4 (see paras. 28 and 34) and R. v.

McClements , 2017 MBCA 104 (at para. 65 ), where the Court of Appeal took this factor into account in the appeal. [ 20 ] I am satisfied that Constable Schmeichel’s evidence about whether Y.G. was a gang member at the material time is logically relevant to my determination about whether an adult sentence is necessary. 2. Necessity [ 21 ] It is not sufficient that the opinion evidence is helpful to the trier of fact; it must be necessary.

The question I have to ask is whether I would be able to come to a conclusion about whether Y.G. was a member of a gang, without Constable Schmeichel’s evidence, assessing the various indicia of gang membership and involvement that she has collected in her work and investigation. [ 22 ] In Mohan , Justice Sopinka stressed that although mere helpfulness is not sufficient to warrant the inclusion of expert opinion evidence, the threshold to meet the criteria of necessity should not be too strict: This precondition is often expressed in terms as to whether the evidence would be helpful to the trier of fact.

The word “helpful” is not

quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that theopinion be necessary in the sense that it provide information “which is likely to be outside the experience and knowledge of a judge orjury”: as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact toappreciate the matters in issue due to their technical nature. In Kelliher (Village) v.

Smith, (SCC), [1931] S.C.R. 672, at p.684, this court, quoting from Beven on Negligence (4th ed. 1928), p. 141, stated that in order for expert evidence to be admissible, “[t]hesubject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by personswith special knowledge.” More recently, in Lavallee, supra, the above passages from Kelliher and Abbey were applied to admit expertevidence as to the state of mind of a “battered” woman.

The judgment stressed that this was an area that is not understood by the averageperson. (at para. 26) [23] I would not be able to interpret and understand much of the source material that Constable Schmeichel has relied on, because ofher specialized knowledge and experience studying the TFN gang. The hand signals, hair colour, clothing, language, symbols and modesof communication, and advertising of the TFN gang are all beyond my experience and knowledge as the trier of fact.

Without the opinionevidence of Constable Schmeichel, I would not be able to come to a determination about Y.G.’s membership and involvement in thegang. 3. The Absence of an exclusionary rule [24] The Defence takes issue with the timing of the tendering of this evidence, arguing that the Crown had a choice to lead evidenceat trial about whether the manslaughter was gang-related and whether the young person was in a gang when he committed the offence.Defence was not able to provide any case law or authority that would prevent me from receiving the evidence at this stage of theproceedings.

If this was at the trial stage, it may be excluded as bad character or propensity evidence, however, the jeopardy ofconviction does not exist at the sentencing stage. [25] A sentencing judge has discretion to decide additional facts where it is necessary to do so for the purposes of determining aproper sentence. (R. v. Ferguson, 2008 SCC 6 at para. 17, and s. 724(2)(

a) of the Criminal Code.) I have already determined that gangmembership and the nature and extent of that involvement for a person under the age of 18 is relevant to the issue of whether they shouldbe sentenced as a youth or as an adult. I am not being asked to admit new facts about the homicide, but rather, evidence about thecharacteristics and lifestyle of the offender.

I am also not being asked to consider evidence that is contrary to the evidence I heard at trialand the findings of fact I made in my trial decision. [26] I have determined that there is no bar to prevent me from hearing evidence of the young person’s gang membership at this stageof the proceedings, which is a determination of whether he should be sentenced as a youth or as an adult. [27] Other than the presumptive exclusionary rule disallowing opinion evidence, there are no other exclusionary rules preventing theadmissibility of this evidence. 4.

A Qualified, Independent, Unbiased Expert [28] The general principle involving the qualification of an expert to provide opinion evidence is set out by the Supreme Court inMohan, ...the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience inrespect of the matters on which he or she undertakes to testify. (at para. 27) [29] The most recent statement of law with respect to expert opinion evidence, White Burgess, dealt at length with the issue of anexpert’s qualifications.

Whereas in the past, the tendency was to admit the evidence of virtually any proffered expert, and deal with theirtestimony as a matter of weight, courts over time have taken a stricter approach. The Supreme Court decided in White Burgess that one ofthe basic threshold requirements for admissibility relates to the expert’s independence and impartiality. (at para. 1) [30] The Defence is opposed to Constable Schmeichel’s qualification as an expert for the court on two main bases.

First, he cites herrelative lack of experience compared to other police officers who may have knowledge about the TFN and MMM gangs, that she hasnever been qualified as an expert in court before, her relative lack of knowledge about the court process generally, her lack of academictraining in the field of street gangs, and the lack of peer review of her report. He is also opposed on the basis that she cannot provideunbiased, independent and fair evidence to the court.

The Evidence as to Constable Schmeichel’s Qualifications [31] The Crown filed Constable Schmeichel’s curriculum vitae and a history of the TFN and MMM gangs that she wrote andcompiled, which sets out the material on which some of her knowledge is based. She also testified in the voir dire on her qualifications. [32] Constable Schmeichel has not been proffered or qualified as a gang expert in court previously. [33] She obtained an Honours Bachelor degree in Legal Studies in 2010. She worked as a WPS cadet from 2010 to 2013. Shebecame a constable in the WPS in 2013.

After initial station duty which every constable must take, she moved to General Patrol in thedowntown Division 11, where she worked from 2014 to 2018. [34] The east-west boundaries of Division 11 are Lipton Street to the west and Waterfront and the Forks to the east. The north-southboundaries are Logan Avenue to the north and Assiniboine Avenue to the south. It includes the downtown area of Central Park andUniversity of Winnipeg and most of the city’s areas where poverty, street gangs, drug use and trafficking are significantly present. Hermandate was to respond to 911 calls.

She testified that a lot of the calls and problems stem from drugs and gang feuds. [35] During the period of 2014 to 2018 in General Patrol with Division 11, Constable Schmeichel was singled out and assigned tothe Smart Policing Initiative (SPI) 189 car, or “SPI Car” as she referred to it in court. The purpose was to have a highly visible police

presence on the streets in Division 11. She conducted curfew checks, which gave her the opportunity to go to gang member and associates’ homes and speak with their families, go over release conditions with young people and their families, and see how everything was going for them. [ 36 ] At that time she started noticing a lot of young men congregating and calling themselves TFN; more and more calls for service were related to this gang. [ 37 ] She was asked to apply to become a member of the Street Crimes Unit prior to the usual five years of minimum service.

She became a member of the Street Crimes Unit in April 2018. [ 38 ] In June 2018, she was asked to join the Gang Expert Program within the WPS and be the expert for the TFN and MMM gangs. The Gang Expert Program involves police officers of various ranks who have been identified by the Organized Crime Unit as having more experience and knowledge about street gangs, by reviewing intelligence reports of those officers and knowing about their work. It involves additional annual training and continuing education. [ 39 ] In April 2019 the name of the unit was changed to Gangs and Guns.

Constable Schmeichel remains in that unit. All the work is downtown and in the North End. In the unit, she and her partner are the TFN and MMM Gang Experts. Members of the Gang Expert Program are expected to do additional research and work. [ 40 ] Members of the Gangs and Guns unit are not required to answer 911 calls. They cultivate informants and investigate and make gang and gun arrests.

Constable Schmeichel testified about the degrees of informants she has cultivated, from informal informants and community members who simply wish to provide information to the police, to registered informants whose confidentiality and information is subject to strict policies and procedures. She has been cultivating informants since 2015 to provide her information on crimes generally, firearms, gangs, and drug trafficking.

She has had both registered and informal informants with respect to TFN since her work in the SPI car. [ 41 ] She also has regular contact with Manitoba Corrections, in order to stay abreast of gang membership and status. [ 42 ] She has conducted between 50 and 60 arrests of TFN and MMM gang members. [ 43 ] She has taken additional training at several courses, conferences and ride-alongs with gang experts in Toronto, Miami, Minnesota and Winnipeg, including an Ontario Gang Investigations Association conference in Toronto, Miami Dade County Police Department Narcotics conference, Advanced Undercover Techniques course in Orlando Florida, Undercover Operator Firearm course (WPS), Informant Handling course (WPS), and Drug Investigator Techniques course (WPS).

Her additional training has been in the areas of: - gang indicia, culture, language and subculture, and coded language used by gang members; - gang investigation techniques and past gang investigations and case law; - gang expert testimony reports, previous cases involving expert gang testimony, procedures and court experience; - drug trafficking and drug buys, including language used in the culture for drugs and trafficking, recognizing various types of drugs, how drugs are processed, behaviours often associated with drug trafficking, how drugs are hidden in vehicles, etc.; - firearms; and - confidential informants and practices, and standards for confidential informants. [ 44 ] She has developed an expertise in the TFN and MMM gangs and has lectured on these two gangs ten times since 2018, to WPS officers, the WPS Communications Centre, WPS Civilian Staff, Manitoba Prosecutions Gang Unit, the Central Intelligence Service of Manitoba (CISM), the WPS Academy, and Child and Family Services.

Only she and her partner lecture on the TFN gang. She has not published any papers on her expertise with TFN or MMM. [ 45 ] Constable Schmeichel testified about the “Schedule A” filed in the voir dire along with her C.V. It is titled “History of the ‘Them Fuckin Niggaz’ and ‘Money Makin Malis’ Street Gangs” and is a condensed version of the information and knowledge she has gained about the two gangs on which she will base her opinion about Y.G.’s gang membership.

Although much of the evidence is relevant to the factual underpinning for her opinion, some parts of it are relevant to determine her qualification to testify as a gang expert. [ 46 ] She outlined the sources of her information about gang membership and association through the WPS Niche Record Management System, which includes any documented occurrence or arrest involving a person, setting out their name, address and the gang to which they belong or are associated with, the WPS Bureau of Police Records, and Canadian Police information Centre (CPIC) records, which includes any court orders and prohibitions, tattoos and cautions for violence about a person.

She also includes information from her own and other police officers’ investigations that relied on information from Manitoba Justice, CSIC, Canada Border Services Agency, Criminal Intelligence Services of Canada and Manitoba, Manitoba Corrections, and Probation Services and Parole Services. [ 47 ] She reviews intelligence reports about TFN and MMM daily. [ 48 ] She also regularly consults all social media, such as Instagram, Facebook and Google.

She testified that increasingly, street gangs in Winnipeg rely on communication, advertising and “tagging” via social media platforms rather than reliance on wearing particular clothing, “flashing” gang signs on the street, and using graffiti to set out territory and challenges. This is at least in part to evade detection and to avoid harsher sentences. Social media seems to be the exception to the practise of keeping their visibility low. On social media gang members brag about their affiliations, their drug operations, their access to weapons and firearms and challenges to their rivals.

[49] Constable Schmeichel captured several screenshots from various Instagram accounts. The photos show the date the photos areposted to the Instagram account. They do not show the date the photos were taken. [50] Her knowledge is also drawn from her daily contact with members of the African Mafia (AM), TFN, and MMM over the pastseveral years. [51] As the TFN and MMM Gang Expert, Constable Schmeichel receives information daily from other officers who haveencountered or received information about TFN and MMM gang activity and membership. [52] Her expert report was peer reviewed by two other WPS Gang Experts.

Detective Sergeant Howanyk is the coordinator of theGang Expert Program, an expert in the African Mafia gang, and has been accepted as an expert in Manitoba courts. Constable Butland isanother member of the Gang Expert Program, an expert in the Mad Cow gang and has also been accepted as an expert in Manitobacourts. Both officers stated in the peer review that they agreed with Constable Schmeichel’s opinion that the TFN and MMM continue tobe criminal organizations in the City of Winnipeg, and that these opinions are also consistent with the findings of judges in cases wherethey have testified.

Although it appears the report was peer reviewed within a day, the nature of the material and proposed opinion aresuch that I am not concerned with the short turnaround time. [53] Constable Schmeichel provided a skeletal history of the gangs. The Mad Cow street gang appeared in Winnipeg in the summerof 2004. When an African member of the Mad Cow gang was murdered by a rival gang, and the leadership of Mad Cow did not retaliate,other African members of the Mad Cow became upset.

Divisions between the Winnipeg-born and African-born members grew, and in2005 many African members left Mad Cow and created the African Mafia (AM) street gang. By 2015, many arrests of Mad Cow andAfrican Mafia gang members released the stronghold on the crack cocaine market in the West End/downtown area of Winnipeg. Thatsummer, TFN appeared as a splinter group of former members of the African Mafia and Mad Cow.

In the summer and fall of 2017, afurther splinter group from TFN appeared, the MMM, who became more brazen, violent, and visible in public to the police. [54] Constable Schmeichel illustrated how gang members use their gang signs and challenge other gangs in several Instagramphotos. She was able to illustrate the gang hand signs of TFN, Mad Cow, African Mafia and MMM and how gang members will use thehand sign of a gun pointing at a rival gang hand sign to illustrate enmity towards the other gang.

She was able to explain what variouswords mean in the language of the gangs and their drug dealing. [55] She testified about the colours of clothing worn by various gangs, but noted that because all members wearing the same colourtend to bring unwanted police attention, the TFN has moved away from all members conspicuously wearing red. Wearing red AirJordans is common, but not required, among members of the TFN. Another identifier of TFN membership is having a blond streak ordyed blond portion in their otherwise black hair.

Constable Schmeichel described it as a sign of unity and a sign to memorialize adeceased gang leader. [56] Constable Schmeichel demonstrated the various hand signs for TFN, MMM, AM and Mad Cow.

Some TFN members continueto include an AM sign, as African Mafia was the progenitor of TFN. [57] Constable Schmeichel testified about how the TFN gang operates and identified many of the members of the gang,demonstrating much of the above information in Instagram photographs and police incident or arrest reports. [58] In the summer of 2017 she was working in the SPI car patrolling the West End and downtown and she interacted with TFNmembers daily.

She testified that these were a new wave of males who were newcomers to Canada, of African descent, and teenagersunder the age of 18. [59] It should be noted that Constable Schmeichel presented significantly more evidence about the TFN and MMM gangs in herqualifying testimony, including the source and basis of that information. I have not included it in the consideration of her qualifications atthis stage of the analysis, but nonetheless would subject all her evidence to an admissibility analysis. I will say more about this later inthis judgment.

Analysis of Constable Schmeichel’s Qualifications [60] Constable Schmeichel was examined and cross-examined over two days. She presented the evidence about her qualificationsand the basis of her knowledge about the TFN and other gangs professionally and credibly and did not claim more than she knew. [61] The basis of Constable Schmeichel’s expertise to testify about the TFN and MMM gangs and whether Y.G. is or was a memberof those gangs is her work as a police officer, first in Division 11, then in the SPI car program, and subsequently as a recognized expertin those gangs in the WPS Gang Expert Program.

It is her interaction with investigation and arrests of members of these gangs that hasgiven her the expertise she has. [62] She demonstrated considerable knowledge and expertise about the gangs, their history, how they operated, how members canbe identified, their signs, symbols, clothing and hair styles and modes of communication. [63] As the Supreme Court determined in R. v.

Marquard, (SCC), [1993] 4 S.C.R. 223, the admissibility of expertevidence does not depend on the means by which the skill is acquired: As long as the court is satisfied that the witness is sufficiently experienced in the subject-matter at issue, the court will not be concernedwith whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given tothe evidence. (at para. 7) [64] Suffice it to say there is no “gang” program at any university or college to which counsel has referred.

Constable Schmeichel’sknowledge is derived from her work as a gang specialist within the Winnipeg Police Service and the additional training and conferencesshe has attended in Canada and the United States with respect to gangs and drug investigation.

[65] I am satisfied that Constable Schmeichel has the requisite knowledge, experience and skill to provide expert opinion evidence tothe court on these gangs and whether Y.G. was a member. [66] The Defence also argued that Constable Schmeichel is not non-partisan and is biased, because of the fact she is a WPS officerand because her work has brought her into contact with members of the TFN gang, including Y.G., and some of the contact with gangmembers has been unpleasant. [67] In White Burgess, Justice Cromwell set out the additional threshold requirement for an expert witness to qualify: Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance.

A proposed expert witness who isunable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.

Lessfundamental concerns about an expert’s independence and impartiality should be taken into account in the broader, overall weighing ofthe costs and benefits of receiving the evidence. (at para. 2) [68] Constable Schmeichel testified under oath that she was aware of her duty to the Court to provide fair, objective and non-partisanevidence and testified that she was willing to carry out her duty as an expert to provide me evidence in an unbiased, impartial andindependent manner.

This was as a result of the questions I asked her at the conclusion of direct examination and cross-examination, asoutlined in White Burgess at paragraphs 47 and 48. [69] That of course does not end the inquiry, where, as in this case, the Defence is challenging the ability of the proposed expert toprovide objective, non-partisan evidence. [70] Constable Schmeichel also testified under oath that she is capable of separating her role as a police officer investigatingmembers of the TFN and MMM gangs from her role as an expert witness, that she can provide unbiased evidence to the Court and thatshe is willing to do so. [71] Courts at all levels across Canada have received expert evidence from gang experts for decades.

Most of those experts arepolice officers. In R. v. MacLeod (12 February 2012), (transcript of proceedings) MBCA, the Manitoba Court of Appeal accepted theevidence of a detective from the WPS Organized Crime Unit in a bail hearing pending appeal to provide expert opinion evidence aboutthe Hells Angels, Zig Zag Crew and two other criminal organizations. [72] In R. v. Alcantara, 2012 ABQB, Justice Greckol accepted the qualifications of a retired RCMP officer to testify about the HellsAngels. Her decision was upheld on appeal in 2015 ABCA 259 (at paras. 170-176).

I note that the basis of the officer’s knowledge andexperience was similar to that of Constable Schmeichel: Mr. Lemieux agreed that the process he has employed in forming his opinion on the HAMC has included talking to other police officers,informants and agents; reading magazines, books, intelligence reports from provincial, national and international sources andinvestigative reports from different parts of Canada, including Alberta; and from his first-hand knowledge through surveillance,participation in searches and listening to wiretap interceptions.

He reviewed the minutes of HAMC meetings identifying guidelines fordispute resolution. (at para. 49)[Emphasis added.] [73] In R. v. Sekhon, 2014 SCC 15, a police officer involved in approximately 1,000 cases involving the importation of cocainetestified as an expert about the customs of the drug trade. In the dissent (on other issues), Justice LeBel noted the law’s acceptance ofpolice officers’ ability to provide expert evidence about matters relating to their knowledge and experience as police officers: In argument before us, the appellant did not challenge the use of a police officer’s expert evidence as such.

A substantial body of caselaw supports the admission of evidence from experienced police officers on such subjects as the organization of the illegal drug trade,methods of transporting and selling drugs, methods for avoiding the detection of drugs, and drug jargon: R. c. Joyal (1990), (QC CA), 55 C.C.C. (3d) 233 (C.A. Que.); R. v. Ballony-Reeder, 2001 BCCA 293, 88 B.C.L.R. (3d) 237 (B.C. C.A.); R. v.Klassen, 2003 MBQB 253, 179 Man. R. (2d) 115 (Man. Q.B.).

Although the admissibility of expert evidence must be assessed by the trial judge on a case-by-case basis, I am satisfied that Dohm J.made no error in principle in finding that the expert evidence of experienced drug investigators is capable of satisfying the criteria —relevance, necessity, absence of any exclusionary rule, and a properly qualified expert — identified in Mohan. The customs of the illegaldrug trade will generally be relevant to the matters at issue in drug trials.

Such customs are likely to be outside the knowledge of the trierof fact, so evidence about them will be necessary to assist him or her in assessing the other evidence that has been adduced. Moreover, itis open to a trial judge to conclude that a police officer is qualified to give expert evidence on the basis of the officer’s experience andtraining in the investigation of drug-related crimes. (at paras. 73 – 74) [74] In R. v. Sandham, 2009 CarswellOnt 6607 (ONSCJ), a detective with the Ontario Provincial Police was qualified as an expert totestify about the Bandidos and other outlaw motorcycle gangs.

Similar to Constable Schmeichel, he was assigned to specifically trackone gang and as a result, received intercepts, documents and information from informants about the Bandidos. (at paras. 11 – 12) [75] In R. v. Valentine, 2009 CarswellOnt 8872 (ONSCJ), a police officer was qualified to testify about urban street gang language.In that case, Justice Pardu also noted that experienced police officers have been allowed to express opinions about gang activities,language and symbols in many cases. (at para. 7: R. v. Grant, [2005] O.J. No. 5891 (Ont. S.C.J.), United States v. Hankey, 203 F.3d 1160(U.S.

C.A. 9th Cir. 2000) — referred to, R. v. Ly, [1992] N.J. No. 354 (Nfld. C.A.), R. v. Ma, [1978] O.J. No. 1425 (Ont. C.A.), R. v.McLeod, [1982] O.J. No. 59 (Ont. C.A.), R. v. Pangman, [2000] M.J. No. 91 (Man. Q.B.), R. v. Lindsay, (ON SC),[2004] O.J. No. 4097 (Ont. S.C.J.). [76] In R. v.

Howe, 2017 NSSC 213, 2017 CarswellNS 596 (NSSC), a former police officer was qualified to testify about therelationship between two outlaw gangs, the evolution of those gangs specifically, and outlaw motorcycle gangs in general. [77] The Defence also argued that Constable Schmeichel would be unable to provide unbiased, non-partisan evidence not only

because she is a police officer but also because she has had some dealings with Y.G. In support of its argument, the Defence filed the case of R. v. Myran, Ryle and Coaster (10 November 2008), Winnipeg (Man.Prov.Ct.). In that case, the Crown tendered the evidence of a witness at a preliminary hearing to provide an opinion on the Native Syndicate Gang and its operation at Stony Mountain Institution around the time of the homicide. The basis of the witness’s opinion was casual interaction with suspected gang members and internal intelligence sharing.

Judge Chartier rejected the evidence on the basis it did not meet the Mohan criteria. None of the information on which the proposed expert based his opinion could be tested or verified, nor was it supported by admissible evidence. Moreover, the witness “was an integral part of the murder investigation team” so Judge Chartier would also have rejected his evidence on that basis. (at pp. 5 – 6) [ 78 ] Being a police officer per se and having had contact per se do not disentitle Constable Schmeichel from testifying. The legal test with respect to excluding an expert’s evidence on the basis of bias is strict.

There must be evidence of actual bias; apparent bias is insufficient: . . . The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent.

The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance. ( White Burgess , supra at para. 50 ) [ 79 ] The facts in White Burgess are demonstrative of the wide scope allowed to expert witnesses who have had some involvement in matters where apparent bias arises. In that case, the shareholders in a company were suing their auditors for negligence that they claimed resulted in financial loss to them. The auditors brought a motion for

summary judgement and in response the shareholders retained a forensic accountant to review the work of the auditors. Her opinion was that the auditors had not complied with their professional obligations to the shareholders. The auditors challenged the qualifications of the expert to testify on the basis that she was biased, because she and her firm could be exposed to liability if the court did not accept her approach, which gave her a financial interest in the outcome of the proceedings.

In applying the legal test and determining that the expert was not biased, Justice Cromwell stated: There was no finding by the motions judge that Ms. MacMillan was in fact biased or not impartial or that she was acting as an advocate for the shareholders: C.A. reasons, at para. 122. On the contrary, she specifically recognized that she was aware of the standards and requirements that experts be independent. She was aware of the precise guidelines in the accounting industry concerning accountants acting as expert witnesses.

She testified that she owed an ultimate duty to the court in testifying as an expert witness: A.R., vol. III, at pp. 75-76; C.A. reasons, at para. 134. To the extent that the motions judge was concerned about the “appearance” of impartiality, this factor plays no

part in the test for admissibility, as I have explained earlier. (at para. 57) [ 80 ] The threshold test and framework for determining that the proposed expert is fair, objective and non-partisan was set out in paragraphs 47 to 48 of White Burgess . I have summarized it as follows: 1. Can the expert attest or testify that they recognize and accept the duty of their role as an expert, which overrides their obligation to the party calling them as a witness to the court, to be fair, objective and impartial? Absent a challenge from the opposing party, this is sufficient to establish that the threshold is met. 2.

Where the opposing party challenges the admission of the evidence, the burden switches to them to show that there is a realistic concern that the expert is unable or unwilling to comply with their duty. 3. If the concern is realistic, the burden remains with the party proffering the witness to show on a balance of probabilities that the witness will be fair, objective and non-partisan. 4.

If the party cannot satisfy the Court on a balance of probabilities that the witness cannot meet that threshold, all the evidence or the parts of it that are tainted by lack of independence or impartiality should be excluded. [ 81 ] Constable Schmeichel was not involved in the investigation of the manslaughter of Tyler Ranville. During that investigation, homicide detectives called her in to view a segment of video from Habesha Convenience Store, located in the area where she works. She was asked if she recognized anyone in the video. She was not aware that it was related to this homicide investigation.

She recognized and identified some of the people in the video. Although she has had some contact with Y.G., including one arrest on a Provincial Offence Notice, for obstructing traffic as a pedestrian, her contact with him is incidental to and within the context of her work in the geographic area of the city where Y.G. was present. This does not rise to the level of bias in Myran .

I also note that Myran was decided years before the clear test of bias was articulated in White Burgess . [ 82 ] Justice Cromwell described the test for threshold admissibility on the issue of independence as “not particularly onerous” and observed that it would be “quite rare” that a proposed expert’s evidence would be ruled inadmissible at this threshold stage. [ 83 ] The determination that a proposed expert has the capacity and willingness to comply with their duty to provide fair, unbiased opinion evidence does not end at the threshold stage.

A decision to allow an expert to qualify is not a de facto admission of all the evidence they proffer. The admissibility of an expert’s evidence continues to be scrutinized. As Justice Cromwell stated in White Burgess : Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage.

At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. (at para. 54)

[ 84 ] I am satisfied on a balance of probabilities that Constable Schmeichel has the requisite knowledge and experience to provide expert evidence about the TFN and MMM gangs to the Court and Y.G.’s connection with those gangs. I am not satisfied that Constable Schmeichel is biased. [ 85 ] I am satisfied that she is aware of her duty to provide independent, unbiased and fair evidence to the Court, she has indicated her willingness to do so and I am satisfied that she is capable of doing so.

CONCLUSION ON THRESHOLD ADMISSIBILITY AND SCOPE AND PURPOSE OF THE EXPERT’S TESTIMONY [ 86 ] The Crown has proffered Constable Schmeichel to testify as follows: Expert in the TFN (The/m Fucking Niggaz) and MMM (Money Makin Malis) Street gang, their mode of operation, their geographic territory, their signs and identifiers and the drug trade.

She will be asked to provide the opinion that Y.G. was an active TFN gang member at the time of the homicide of Tyler Ranville and remained so when being charged and ultimately detained for the homicide. [ 87 ] I have concluded that Constable Schmeichel is qualified to provide this Court with expert evidence about the following: 1.

The history, nature and characteristics of the TFN and MMM gangs, including, but not necessarily limited to: - their mode of operation - their geographic territory - their gang signs and identifiers - their involvement in the drug trade - their communication methods and jargon, including on social media platforms 2. Whether Y.G. was an active member of the TFN gang at the time of the homicide of Tyler Ranville. 3.

Whether and for how long Y.G. remained a member of the TFN gang subsequent to his arrest for the homicide, including any evidence showing he left or tried to leave the gang. [ 88 ] Finding that Constable Schmeichel’s evidence meets the basic threshold does not end the inquiry. Concerns about the relevance, necessity, and qualifications, including independence and impartiality, will continue to be taken into account at the gatekeeping stage.

As Justice Cromwell stated in White Burgess at paragraph 54 : At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding sale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. “Original signed by:” C.A. DEVINE, P.J.

CITATION: R. v. Y.G. , 2020 MBPC 8 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) Erika Dolcetti and Lianni Nair for the Crown ) - and - ) ) ) Y.G. ) ) Saheel Zaman for the Accused ) ) ) ) Judgment delivered: February 5, 2020 Restriction on publication: By court order under Sections 110(1) and 111(1) of the Youth Criminal Justice Act prohibits the publication of any information that may identify the young person having been dealt with under this Act and the victim and witness involved in this proceeding. C.A DEVINE, P.J. E R R A T U M There is one correction in the above judgement, as follows:

Please note the following change to the above noted decision made on page 9, in paragraph 33. The paragraph should read: [33] She obtained an Honours Bachelor degree in Legal Studies in 2010. She worked as a WPS cadet from 2010 to 2013. She became a constable in the WPS in 2013. After initial station duty which every constable must take, she moved to General Patrol in the downtown Division 11, where she worked from 2014 to 2018. Dated this 4 th day of March 2020. “Original signed by:” C.A. DEVINE, P.J.