R. v. Howe, 2017 NSSC 210

SUPREME COURT OF Nova Scotia Citation: R. v. Howe, 2017 NSSC 210 Date: 20170809 Docket: CRH No. 441632 Registry: Halifax Between: Her Majesty the Queen v. Duayne Jamie Howe, Patrick Michael James, and David John Pearce Restriction on Publication:

Section 486.5 Judge: The Honourable Justice Peter RosinskiHeard: July 31, 2017, in Halifax, Nova ScotiaWritten decision: August 09, 2017Counsel: Glen Scheuer, for the Crown Patrick Atherton for the Defence Trevor McGuigan for the Defence Patrick MacEwen for the Defence By the Court: Introduction [1] The Crown alleges that each of the individual defendants are full patch members of the Bacchus Motorcycle Club, which itselfis a criminal organization as defined in s. 467.1 Criminal Code. That definition was elaborated upon in R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211, per Fish J.; and in R. v.

Beauchamp, 2015 ONCA 260. The Crown wishes to introduce the criminalrecords of each of the defendants at trial. This voir dire decision addresses the dispute. All written arguments had been filed by July 28,2017. Position of the parties [2] The Crown argues that the criminal records of each of the defendants is admissible in this trial. It recognizes that the generalrule is that the Crown is not permitted to present character evidence of an accused person for the purpose of proving that they are thetype of person likely to have committed the offences in question (e.g. s. 12 CEA – R. v.

Corbett, (SCC), [1988] 1 S.C.R.670 and its progeny, including most recently, R. v. Borden, 2017 NSCA 45, at paras. 154-55). However, it reiterates to the court thelong-standing general exception that such evidence is admissible if it is relevant to an issue in the case, and the probative value thereof isnot overborne by the prejudicial effect of admitting the evidence on the fair trial rights of the defendants- e.g. R. v.

FFB, (SCC), [1993] 1 S.C.R. 697. [3] The Crown points out that the exceptional admission of criminal record evidence against the defendants here may be justifiedon the basis that the defendants individually are all charged with having committed these offences (i.e. ss. 264(2), 264.1, 346 and 423Criminal Code) while also representing or publicly wearing the very distinctive regalia of the Bacchus Motorcycle Club, andconsequently charged with commission of those offences “for the benefit of, at the direction of, or in association with” the criminalorganization that is the Bacchus Motorcycle Club – s. 467.12 Criminal Code.

They rely on, inter alia: R. v. Hobbs, 2008 NSSC 206(affirmed, 2010 NSCA 53); R. v. Cazzetta,(2003) (QC CA), 173 CCC (3d) 144 (Que CA); R. v. Morin, 2009 QCCA1131 (leave to appeal refused November 19, 2009) at paras. 205-216; R. v. Pangman, [2000] MJ No. 91 (QB) - (see also footnote 4 in R.v. Howe, 2016 NSSC 267, specifically in reference to Mr. James regarding the evidence of SH); R. v. Terezakis, 2007 BCCA 384, atpara. 46 (regarding whether the criminal organization offence sections were overly broad or vague).

[4] The defence argues that, while criminal records of non-accused third parties alleged to be members of the same criminalorganization may be received in evidence (e.g. R. v. Lindsay (ON SC), [2005] O.J. No. 2870 (SC) per Fuerst J.) here,the prejudicial effect of the admission of the defendants’ criminal records outweigh any probative value thereof – R. v. Borden, 2017NSCA 45, at paras. 154 – 55 and 178. Why, as a general proposition, the criminal records of the defendants are admissible [5] I observe here that, the defendants may yet make a so-called Corbett application - s. 12, Canada Evidence Act.

I conclude thatthe court must consider the concerns in the Corbett decision at this juncture in any event. [6] All accused persons are entitled to a fundamentally fair trial. For present purposes, this means a trial at which the Crown islimited to presenting relevant evidence, whose probative value outweighs any prejudicial effects to the fair trial rights of the defendants,and which is not excluded on any other basis – e.g. a rule, principled (simple or constitutional), or statutory basis. [7] The defendants rely on general principles, and cited only one authority directly: R. v.

Borden, supra. [8] Counsel did not present any cases dealing with the specific issue in question here: are the individual defendants’ criminalrecords admissible as against them, as part of the Crown’s case-in-chief, where the allegations include that they committed offences “forthe benefit of, at the direction of, or in association with” a criminal organization (the Bacchus Motorcycle Club)? [9] There is no dispute about the general principles.

The dispute is centred on the application of those principles to thecircumstances of this case, and specifically whether the probative value of the proposed “bad character” evidence outweighs theprejudicial effect of the admission of that evidence on the defendants’ fair trial rights. [10] The Crown will attempt to qualify as an expert witness, Staff Sgt. Leonard Isnor. He has previously been qualified by this courtin an earlier voir dire as an expert witness in relation to the Hells Angels Motorcycle Club.

The proposed qualification regarding theBacchus Motorcycle Club is in identical language: As an expert in the area of organized crime – outlaw motorcycle gangs, able to give opinion evidence in relation to the Hells AngelsMotorcycle Club and Bacchus Motorcycle Club in the following areas: 1 - The general nature and characteristics of the clubs; 2 - The history, organization, structure and hierarchy of the clubs; 3 - The culture, values and practices of the clubs [including the main purposes/activities of the clubs; and 4 - The language and symbols of the clubs. [11] The criminal records of the defendants may therefore arguably be relevant to providing a foundation for the expert opinionevidence (if qualified) of Staff Sgt.

Isnor, as well as to the specific charges pursuant to s. 467.12 Criminal Code. The evidence canreasonably be expected to be probative (i.e. logically relevant and material to the issues in this case). I say this because counsel have notyet disclosed to the court the nature and extent of the defendants’ criminal records. [12] The defendants did not identify with any great precision what prejudice they argue would arise from admission of the proposedevidence. I infer that they did not want me to see the criminal record information before ruling herein that they are admissible.

Theytook a similar position regarding Staff Sgt.

Isnor’s expert when I was asked to consider whether he is properly qualified to give opinionevidence regarding the BMC. [13] Although not entirely failsafe, I would respectfully suggest that the fact that this is a judge alone trial, greatly diminishes thedanger that the criminal record evidence, if admitted, would be misused by the court as succinctly discussed at paras. 2-4, in R. v.Granados-Arana, 2017 ONSC 2113, per K L Campbell J. [14] I intend throughout the remainder of the trial to carefully respect the boundary between the permissible and impermissible usesof the defendants’ criminal records, in light of the dangers of misuse associated therewith.

It may yet turn out that the records are of noprobative value, or that their probative value is outweighed by the prejudicial effect of considering them (partially or wholly) to the fairtrial rights of the defendants. [15] I expect that the defendants’ experienced counsels will interject if they believe questioning in relation to the criminal records isinappropriate, and make interim and closing submissions regarding the permissible uses of the defendants’ criminal records.

Conclusion [16] I find that the probative value of the defendants criminal records outweighs any prejudicial effect upon their fair trial rights, andrule them generally admissible, and provisionally admit them as evidence. Rosinski, J.