R. v. Howe, 2017 NSSC 213

SUPREME COURT OF Nova Scotia Citation: R. v. Howe , 2017 NSSC 213 Date: 20170810 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 Rosinski Heard: July 31 and August 1, 2017, in Halifax, Nova Scotia Written decision: August 10, 2017 Counsel: 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 defendants are charged with offences against R.M., namely: threats, harassment, intimidation and extortion ( ss. 264.1 , 264 , 423 and 347 Criminal Code ) individually, and as members of the Bacchus Motorcycle Club [“BMC”], an alleged criminal organization, contrary to s. 467.12 Criminal Code [ 2 ] At their trial, the Crown wishes to introduce the expert opinion evidence of Detective Staff Sergeant Leonard Isnor, Operations Coordinator of the Biker Enforcement Unit [“BEU”], which is part of the Organized Crime Enforcement Bureau of the Ontario Provincial Police.

The Crown requests that the court qualify him: As an expert in the area of organized crime – outlaw motorcycle gangs, able to give opinion evidence in relation to the Hells Angels Motorcycle Club and the 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. [ 3 ] The Crown elaborated that if qualified, Sgt.

Isnor would testify about: the relationship between the HAMC and the BMC; the evolution of so-called “outlaw motorcycle gangs” [OMGs] [1] in general and BMC specifically; a comparison between the HAMC and the BMC over time; it will be suggested that the BMC was modelling itself after the HAMC - that they were “what the BMC wanted to become and what it [now] is”. [ 4 ] The defendants say Staff Sergeant Isnor “is not qualified to give expert opinion evidence as it relates to the BMC as he has had no experience with them prior to the allegations currently before the court.

Furthermore, the defence takes the position that any opinion evidence given in relation to the Hells Angels Motorcycle Club [HAMC] is irrelevant and highly prejudicial to the accused in this matter

who are not members thereof.” [ 5 ] Defendants’ counsels argue that the court should not qualify Sgt. Isnor as an expert in relation to the BMC because, inter alia: 1. If one excises from his CV all the references to the HAMC and outlaw motorcycle gangs generally, it shines a spotlight on how minimal his expertise is in relation to the BMC; 2.

Most of the information he has available to him regarding the BMC is hearsay or outdated, as it arose from the time period before (2008 – 2015) he became 50% seconded to the Criminal Intelligence Service of Canada (CISC) [while the remaining 50% of his time was still to be spent as the team leader of the Ontario Provincial Police (OPP) BEU], where although he was dealing on a daily basis with national OMGs issues, and he would have had less personal direct knowledge about the BMC; 3.

In contrast to the HAMC, where he had the benefit of detailed information, between 2005 and 2007 from members Stephen Gault of the Oshawa

chapter and David Atwell of the downtown Toronto chapter, he has no “inside information” from wiretaps, or gleaned from informants or agents who were members of the BMC; 4. At the time of the charges here (2012), there were no Ontario chapters of the BMC [although three chapters of the Red Devils patched over to BMC in 2014, one of which later in 2015 patched over to the Outlaws]; 5.

That the defendants were all members of the Nova Scotia BMC (Hants County chapter), and construction of their clubhouse was not completed by September 20, 2012 when they were arrested (though I note this group had previously had their clubhouse in Fall River, Halifax County, Nova Scotia until then, and had only existed since the patch over to BMC by the East Coast Riders in January 2010); and that Sgt. Isnor was unaware of the circumstances of the individual defendants until 2012; 6.

That a significant amount of the available information to him (evidence and photographs) was obtained through search warrants executed at only two BMC clubhouses: (2005 and 2007 searches) at the Albert County, New Brunswick; and the September 20, 2012 search at the 9 Mile River/Hants County, Nova Scotia, partially constructed clubhouse. [ 6 ] In

summary, the defendants argue that Sgt. Isnor could only be qualified as proposed by the Crown if the reference to the BMC is removed. [ 7 ] I observe here that the defendants’ counsels did not reiterate their position that the evidence regarding the HAMC is irrelevant and highly prejudicial, nor did they clarify how it might be prejudicial to their clients right to a fundamentally fair trial. I am satisfied that it is not appropriate to exclude such evidence here on a probative value/prejudicial effect basis.

The general legal principles [ 8 ] According to An Etymological Dictionary of Modern English , [John Murray, Albemarle Street W., London, England, 1921], the word “expert”, as a noun, is a 19 th century creation. It is rooted in the French and Latin words which gave rise to the English words “experience” and “experiment”. [ 9 ] There are three general categories of expertise: scientific; technical; and “specialized knowledge”. In this case, Sgt.

Isnor is said to have “specialized knowledge” expertise, which can be acquired by education, proper training and experience – and in which cases a court’s focus is often on the threshold reliability of the opinion evidence. [2] [ 10 ] As I am the trier of fact, I find it helpful to consider how we instruct jurors: [3] Normally, witnesses may only testify about what they have seen or heard, and may not testify about their opinions.

In the case of a qualified expert, however, because of their special training, education and experience, they are permitted to give an opinion about… Although a properly qualified expert will be permitted to give their opinion, it is up to you to decide the extent to which you will rely on it. Here are some things to consider as the expert testifies: • The expert’s qualifications and experience; • The reasons given for the opinion; the suitability of the methods used [i.e. the reliability of the source(

s) of the information underlying the opinion]; • Whether the expert is impartial; and • The other evidence in the case. It is up to you to decide how much or little to rely on the expert’s opinion. A properly qualified expert may be asked to assume or rely on certain facts in giving their own opinion. Those facts may be the same or different from what you later find us facts on the basis of all the evidence in this case. The closer the facts assumed or relied on by the expert are to the facts as you find them to be, the more helpful the expert’s opinion may be to you.

To the extent that the expert relies on facts that you do not find supported by the evidence, you may find the expert’s opinion less helpful. [ 11 ] In R. v. Sekhon , 2014 SCC 15 , the court had to consider whether a properly qualified expert strayed beyond the proper scope of expert testimony. There, a police officer had been qualified as an expert able to give opinion evidence regarding the organization of the illegal drug trade, methods of transporting and selling drugs, methods for avoiding the detection of drugs, and drug jargon.

He testified that he had never encountered a so-called “blind” or innocent drug courier in such circumstances. The court concluded that although that

aspect of his opinion evidence was inadmissible, the conviction could be confirmed through use of the curative provison in s. 686(1)(b)(iii) Criminal Code. [12] Notably, Justice Moldaver for the majority stated: [4] Requirements for Expert Opinion Evidence 43 As set out R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, at pp. 20-23, and affirmed in R. v. J.-L.J., 2000 SCC 51, [2000]2 S.C.R. 600, and R. v.

D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, the admission of expert evidence depends on the following criteria: 1)relevance; 2) necessity in assisting the trier of fact; 3) the absence of any exclusionary rule; and 4) a properly qualified expert. 44 With respect to the "relevance" criterion, Mohan states that the judge must conduct a cost-benefit analysis to determine "whether itsvalue is worth what it costs" (p. 21, quoting McCormick on Evidence (3rd ed. 1984), at p. 544).

The cost-benefit analysis requires thejudge to balance the probative value of the evidence against its prejudicial effect (Mohan, at pp. 23-24). 45 As for the "necessity" criterion, Mohan holds that "[i]f on the proven facts a judge or jury can form their own conclusions withouthelp, then the opinion of [an] expert is unnecessary" (p. 23, quoting Lawton L.J. in R v. Turner, [1975] 1 Q.B. 834, at p. 841).

The Courtwent on to note that the concern "inherent in the application of this criterion [is] that experts not be permitted to usurp the functions ofthe trier of fact" (p. 24). 46 Given the concerns about the impact expert evidence can have on a trial -- including the possibility that experts may usurp the roleof the trier of fact -- trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence.

While these concernsare perhaps more pronounced in jury trials, all trial judges -- including those in judge-alone trials -- have an ongoing duty to ensure thatexpert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert'stestimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that,throughout the expert's testimony, the testimony remains within the proper boundaries of expert evidence. As noted by Doherty J.A. inR. v.

Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 62: The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scopeof the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, ifnecessary, the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process. Acautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted,are essential.

The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals onappeal. [Emphasis added; citations omitted.] 47 The trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of theevidence itself is properly the subject of expert evidence. [13] In R. v. Necroche, 2016 SKQB 211, Justice R.D. Maher provided an instructive recitation of the applicable principles: In R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9 [Mohan], the Supreme Court of Canada set out four requirements that must beestablished for an expert opinion to be admissible, they are: 1. Relevance; 2. Necessity in assisting the trier of fact; 3. Absence of an exclusionary rule; 4. A properly qualified expert. 2 Justice Cromwell in White Burgess Langille Inman v.

Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 [White v Abbott],viewed the principles set out in Mohan and made the following comments with regard to qualifying an expert at para. 19: 19 To address these dangers, Mohan established a basic structure for the law relating to the admissibility [page196] of expert opinionevidence. That structure has two main components.

First, there are four threshold requirements that the proponent of the evidence mustestablish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3)absence of an exclusionary rule; and (4) a properly qualified expert (Mohan, at pp. 20-25; see also Sekhon, 2014 SCC 15 ,[2014] 1 S.C.R. 272 at para. 43).

Mohan also underlined the important role of trial judges in assessing whether otherwise admissibleexpert evidence should be excluded because its probative value was overborne by its prejudicial effect - a residual discretion to excludeevidence based on a cost-benefit analysis: p. 21. This is the second component, which the subsequent jurisprudence has furtheremphasized: Lederman, Bryant and Fuerst, at pp. 789-90; J.-L.J., 2000 SCC 51 , [2000] 2 S.C.R. 600 at para. 28. 3 In para. 22 he accepted the premises established by Doherty J.A. in R. v.

Abbey, 2009 ONCA 624, 97 OR (3d) 330 [Abbey], whichset out a two-step inquiry process. Cromwell J. in White v Abbott then set out that an expert has a duty to the court to be fair, objectiveand non-partisan. He said the following at para. 32: 32 Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. Theexpert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand.

It must be independent inthe sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of thelitigation. It must be unbiased in the sense that it does not unfairly favour one party's [page201] position over another. The acid test iswhether the expert's opinion would not change regardless of which party retained him or her: P. Michell and R. Mandhane, "TheUncertain Duty of the Expert Witness" (2005), 42 Alta. L. Rev. 635, at pp. 638-39. These concepts, of course, must be applied to therealities of adversary litigation.

Experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not

undermine the expert's independence, impartiality and freedom from bias. He further stated an expert's independence and impartiality must be considered at the threshold as well as at the gatekeeping stages when he said the following at para. 34: 34 In this section, I will explain my view that the answer to both questions is yes: a proposed expert's independence and impartiality go to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty.

Once that threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role. 4 On the threshold test Cromwell J. made the following comments at para. 45, 47, 48, 49, 50, 53, and 54: 45 Following what I take to be the dominant view in the Canadian cases, I would hold that an expert's lack of independence and impartiality goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted.

That approach seems to me to be more in line with the basic structure of our law relating to expert evidence and with the importance our jurisprudence has attached to the gatekeeping role of trial judges.

Binnie J. summed up the Canadian approach well in J.- L.J.: "The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility" (para. 28). 47 Imposing this additional threshold requirement is not intended to and should not result in trials becoming longer or more complex. As Prof.

Paciocco aptly observed, "if inquiries about bias or partiality become routine during Mohan voir dires, trial testimony will become nothing more than an inefficient reprise of the admissibility hearing": "Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts" (2009), 34 Queen's L.J. 565 ("Jukebox”), at p. 597.

While I would not go so far as to hold that the expert's independence and impartiality should be presumed absent challenge, my view is that absent such challenge, the expert's attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. 48 Once the expert attests or testifies on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable and/or unwilling to comply with that duty.

If the opponent does so, the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence. If this is not done, the evidence, or those parts of it that are tainted by a lack of independence or impartiality, should be excluded.

This approach conforms to the general rule under the Mohan framework, and elsewhere in the law of evidence, that the proponent of the evidence has the burden of establishing its admissibility. 49 This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court.

For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern.

The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, [page208] assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court.

I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence.

Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence. 50 As discussed in the English case law, the decision as to whether an expert should be permitted to give evidence despite having an interest or connection with the litigation is a matter of fact and degree. 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. ... 53 In my opinion, concerns related to the expert's duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the "qualified expert" element of the Mohan framework: S.C. Hill, D.M.

Tanovich and L.P. Strezos, McWilliams' Canadian Criminal Evidence (5th ed. (loose-leaf)), at 12: 30.20.50; see also Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600 , 92 O.R. (3d) 97 , at para. 21 ; Lederman, Bryant and Fuerst, at pp. 826-27; Halsbury's Laws of Canada: Evidence, at para. HEV-152 "Partiality"; The Canadian Encyclopedic Digest (Ont. 4th ed. (loose-leaf)), vol. 24, Title 62 -- Evidence, at s.469. A proposed expert witness who is unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert.

Situating this concern in the "properly qualified expert" ensures that the courts will focus expressly on the important risks associated with biased experts: Hill, Tanovich and Strezos, at 12: 30.20.50; Paciocco,"Jukebox", at p.595. 54 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 [page210] 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.

5 He further commented at para. 10 the test for an expert as follows: 10 In my view, expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware ofthis duty and able and willing to carry it out. If they do not meet this threshold requirement, their evidence should not be admitted. Oncethis threshold is met, [page192] however, concerns about an expert witness's independence or impartiality should be considered as partof the overall weighing of the costs and benefits of admitting the evidence.

This common law approach is, of course, subject to statutoryand related provisions which may establish different rules of admissibility. 6 Cromwell J. further said at para. 20 that there is now a trend to tightening the admissibility requirements and to enhance the judge'sgatekeeping role. (See: R. v. Smith-Wilson, 2016 SKQB 33. And see: R. v. Giles, 2016 BCSC 294). 7 I have also considered R v Pham, 2013 ONSC 4903, 300 CCC (3d) 111 [Pham], where Durno J. set out a list of non-exclusivefactors to be followed when considering the qualifications of an expert when he said the following at para. 31: 31 In

summary, the following non-exhaustive list of factors assist in determining whether a tendered expert witness is qualified: * the manner in which the witness acquired the special skill and knowledge upon which the application is based; * the witness' formal education (i.e. degrees or certificates); * the witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons); * the witness' membership and participation in professional associations related to his or her proposed evidence; * whether the witness has attended additional courses or seminars related to the areas of evidence in dispute; * the witness' experience in the proposed area(s); * whether the witness has taught or written in the proposed area(s); * whether, after achieving a level of expertise, the witness has kept up with the literature in the field; * whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whetherthe previous evidence was contested; * whether the witness has not been qualified to give evidence in the proposed area(

s) and if so, the reason(

s) why; and * whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who mightgive the evidence. [14] Regarding the definition of a criminal organization, Justice Fish’s comments in R. v. Venneri , 2012 SCC 33 bear repeating: 36 Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-mindedfelons.

Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fosteringtrust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances,developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound tocapitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surroundingcommunity. 37 Counsel for Venneri suggests that the criteria outlined in R. v.

Lindsay, (Ont. S.C.J.), and considered inBattista, should be accepted by this Court as a means by which to gauge whether a given group has the necessary attributes of a criminalorganization (see paras. 854-62). The "common" characteristics of criminal organizations identified in Lindsay may well be "common" tohighly sophisticated criminal entities, such as notorious motorcycle gangs, Columbian drug cartels, and American "crime families". 38 Care must be taken, however, not to transform the shared attributes of one type of criminal organization into a "checklist" thatneeds to be satisfied in every case.

None of these attributes are explicitly required by the Code, and a group that lacks them all maynonetheless satisfy the statutory definition of "criminal organization". 39 The difficulty and disadvantage of setting out what may be perceived as a prescriptive "checklist" is aptly described by AlexandraOrlova and James Moore in the following passage: It is notable that while the definition of an "organized criminal group" refers to some elements that characterize such groups, otherequally valid elements, frequently discussed in legal and academic debates, are omitted.

For example, no references are made to thepotential for the utilization of violence and corruption, which are arguably some of the most commonly utilized methods by organizedcriminal entities. In part, the omissions are understandable as it is rather difficult and arguably not that useful to create a "check-list"definition of organized crime that incorporates all possible elements of organized criminal groups.

The challenge of creating acomprehensive "check-list" stems in part from the lack of consistency between organized criminal groups as well as their constantlychanging and evolving nature as a response to changes in legitimate societal structures. [Emphasis added; footnotes omitted.] ("'Umbrellas' or 'Building Blocks'?: Defining International Terrorism and Transnational Organized Crime in International Law" (2004-2005), 27 Hous. J.

Int'l L. 267, at p. 284) 40 It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more personsthat pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to thisdetermination must be considered in applying the definition of "criminal organization" adopted by Parliament. Groups of individuals that

operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime. 41 Courts must not limit the scope of the provision to the stereotypical model of organized crime -- that is, to the highly sophisticated,hierarchical and monopolistic model. Some criminal entities that do not fit the conventional paradigm of organized crime maynonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme. [15] I remind myself that in this case, if he is qualified, S/Sgt.

Isnor’s testimony is expected to lead to his opinion, and the inferencethat the BMC is a criminal organization. As Justice Cromwell pointed out in R. v. Villaroman, 2016 SCC 33: (ii) The Relationship Between Circumstantial Evidence and Proof Beyond Reasonable Doubt 25 The Court has generally described the rule in Hodge's Case as an elaboration of the reasonable doubt standard: Mitchell; John v.The Queen, (SCC), [1971] S.C.R. 781, per Ritchie J., at pp. 791-92; Cooper; Mezzo v. The Queen, (SCC), [1986] 1 S.C.R. 802, at p. 843.

If that is all that Hodge's Case was concerned with, then any special instruction relating tocircumstantial evidence could be seen as an unnecessary and potentially confusing addition to the reasonable doubt instruction. 26 However, that is not all that Hodge's Case was concerned with. There is a special concern inherent in the inferential reasoning fromcircumstantial evidence. The concern is that the jury may unconsciously "fill in the blanks" or bridge gaps in the evidence to support theinference that the Crown invites it to draw. Baron Alderson referred to this risk in Hodge's Case.

He noted the jury may "look for -- andoften slightly ... distort the facts" to make them fit the inference that they are invited to draw: p. 1137. Or, as his remarks are recorded inanother report, the danger is that the mind may "take a pleasure in adapting circumstances to one another, and even straining them alittle, if need be, to force them to form parts of one connected whole": W.

Wills, Wills' Principles of Circumstantial Evidence (7th ed.1937), at p. 45; cited by Laskin J. in John, dissenting but not on this point, at p. 813. 27 While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Aldersondescribed -- the danger of jumping to unwarranted conclusions in circumstantial cases -- remains real. When the concern aboutcircumstantial evidence is understood in this way, an instruction concerning the use of circumstantial evidence and the reasonable doubtinstruction have different, although related, purposes: see B. L.

Berger, "The Rule in Hodge's Case: Rumours of its Death are GreatlyExaggerated" (2005), 84 Can. Bar Rev. 47, at p. 60-61. 28 The reasonable doubt instruction describes a state of mind -- the degree of persuasion that entitles and requires a juror to find anaccused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented attrial: see, e.g. Schuldt v. The Queen, (SCC), [1985] 2 S.C.R. 592, at pp. 600-610.

A reasonable doubt is a doubt based on"reason and common sense"; it is not "imaginary or frivolous"; it "does not involve proof to an absolute certainty"; and it is "logicallyconnected to the evidence or absence of evidence": Lifchus, at para. 36. The reasonable doubt instructions are all directed to describingfor the jurors how sure they must be of guilt in order to convict. 29 An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawinginferences from circumstantial evidence: Berger, at p. 60.

This is the danger to which Baron Alderson directed his comments. And thedanger he identified so long ago -- the risk that the jury will "fill in the blanks" or "jump to conclusions" -- has more recently beenconfirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of acircumstantial evidence instruction: see, e.g., Boucher v.

The Queen, (SCC), [1955] S.C.R. 16 per Rand J., at p. 22; John,per Laskin J., dissenting but not on this point, at p. 813. 30 It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantialevidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language isrequired.

Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that suchevidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by tooquickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with anexample. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining.

But we maythen notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, andre-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanationsthan that it has been raining.

The inferences that may be drawn from this observation must be considered in light of all of the evidenceand the absence of evidence, assessed logically, and in light of human experience and common sense. … (iv) Whether the Inference Must Be Based on "Proven Facts" 35 At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rationalconclusions based on inferences drawn from proven facts" see R. v. McIver, (ON CA), [1965] 2 O.R. 475, at p. 479(C.A.), aff'd without discussion of this point (SCC), [1966] S.C.R. 254. However, that view is no longer accepted.

Inassessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4,[2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused toprove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence.

The issuewith respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferencesother than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. 36 I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by themere fact that it arises from a lack of evidence.

As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). A certain gap in the

evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. 37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonablepossibilities" which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff'd (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35.

I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused": R. v. Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. "Other plausible theories"or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation. 38 Of course, the line between a "plausible theory" and "speculation" is not always easy to draw.

But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty. 39 I have found two particularly useful statements of this principle. 40 The first is from an old Australian case, Martin v. Osborne, 55 C.L.R. 367, at p. 375: In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.

This means that,according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would beaccompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.] 41 While this language is not appropriate for a jury instruction, I find the idea expressed in this passage -- that to justify a conviction,the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative -- ahelpful way of describing the line between plausible theories and speculation. 42 The second is from R. v.

Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that "[c]ircumstantialevidence does not have to totally exclude other conceivable inferences;" that the trier of fact should not act on alternative

interpretationsof the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. 43 Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greaterclarity than it is in these passages. The evidence at the voir dire [16] Staff Sgt. Isnor was the only witness, though I will consider contextually some associated trial evidence.

He testified that heunderstood his duty to the court, to act not as an advocate, but that he was to assist the trier of fact, and emphasized that his evidencewould be fair, unbiased and objective. I find that it was. In an earlier voir dire, I similarly qualified him as an expert regarding theHAMC – 2017 NSSC 199. [17] His curriculum vitae is impressive. In his testimony, he elaborated upon that. He has been with the Ontario Provincial Policesince 1984. Between 1987 and 1991 he worked with the drug enforcement branch, mostly as an undercover officer.

By 1995 he becamepart of the so-called “special squad” which was part of the intelligence group of the Ontario Provincial Police. Their focus was on so-called outlaw motorcycle gangs or clubs (OMGs). During that time the unit covered all OMG events where members and their supportersattended. They also conducted investigations in relation to OMG members. During that time he refined the concept of “special supportgroups” (SSGs), which involved members from all Ontario major police forces being involved in traffic stops that were routine inrelation to OMG events - see for example, Brown v.

Durham (Regional Municipality) Police Force, (ON CA), [1998]O.J. No 5274 (Ont CA), affirming [1996] O.J. No. 1271 (SC) per DS Ferguson J. Coincidentally, one of the members of the Para-diceRiders Motorcycle Club involved in that litigation, was Tero Rampanen, who had by the early 2000s joined the Albert County, NBChapter of the BMC while living in Truro, Nova Scotia. In somewhat similar fashion: Matthew Foley, who had been a member of theSatans Choice MC in Ontario left in the year before the patch over to HAMC on December 29, 2000, and became a member of the St.John, New Brunswick

chapter of the BMC; Art “Kentucky” Belson who was also with the Para-dice Riders MC between 1995 and 2000became a member of the Albert County BMC; Clinton Murray who had been a member of the Loners MC in Ontario became a memberof the Albert County BMC.

Brian Schofield, who was a member of the Satans Choice MC Hamilton, Ontario, chapter, then the Keswickchapter, left Ontario before all of the remainder of the Satans Choice patched over to the HAMC on December 29, 2000, and became amember of the Albert County BMC. [18] As noted, on December 29, 2000, most of the major OMGs in Ontario patched over to become members of the HAMC, creatinga monolithic motorcycle club in Ontario overnight. Resources were dedicated in 2000 to the creation of a Biker Enforcement Unit (BEU)which was part of the larger OPP intelligence group, the Organized Crime Enforcement Bureau.

Between 2001 - 2008 he was the teamleader and responsible for between 40 to 100 full-time investigators. Though he had administrative duties as well, he was the operationalleader of the unit. In that capacity, he oversaw all investigations in Ontario into OMG’s, and reviewed all intelligence reports, which rawreports analysts reduced to reliable

summary materials available for dissemination to authorized law enforcement personnel. [19] Sgt. Isnor was the handler for informant Stephen Gault who was the secretary-treasurer of the Oshawa, Ontario HAMC chapter.Gault became an agent for the police, and as a result, for a period of 18 months in 2005- 2006 Sgt. Isnor “knew everything going on inhis life”. He debriefed with him on a daily basis, and videotaped statements were taken weekly in relation to everything that Gault hadseen and heard regarding OMGs that would be of interest to law enforcement. This led to operation “Develop” in Ontario at which time

the BMC also came to the attention of the OPP. The BMC-Ontario connection caused the RCMP to create operation “J – Develop”, which targeted the Albert County, New Brunswick, BMC chapter, and which was one of the few BMC chapters in existence at the time. Sgt. Isnor had the benefit of close communication and interaction with the investigators in project “Develop”, who were relying on an HAMC member informant, turned agent, David Atwell, however, Sgt. Isnor was not directly operationally involved therein. During the same time, Sgt.

Isnor was himself directly involved with Project “Tandem” in Ontario using Stephen Gault’s access to the inner workings of the HAMC to gain an understanding and insight into the collective operation of the HAMC in Canada. Sgt. Isnor also became involved in project “Legalize”, which targeted Dean Huggan, an Albert County, New Brunswick, BMC member living at that time in Charlottetown, Prince Edward Island, and running a “Route 81” HAMC support store.

In the summer of 2005, the sergeant travelled to Charlottetown in conjunction with, HAMC Ontario member Stephen Gault who was on a motorcycle “run” with others around the Maritime Provinces. The Sergeant visited the Route 81 store at that time. David Atwell (who had been a Para-dice Riders member until December 29, 2000 when he patched over to the HAMC) travelled with other HAMC members from Ontario to PEI, Nova Scotia and New Brunswick in the summer of 2006. During that trip, Atwell made many contacts in the Atlantic provinces, and met with the President of the Albert County BMC chapter, Charlie Burrell.

He reported to his handlers in the BEU that they engaged in conversation about the BMC supplying Percocet, cocaine, and marijuana, though none of these arrangements came to fruition. Charlie Burrell was arrested at that time, however, the charges were later stayed by the Crown. [ 20 ] Since at least 1996, there had been a national OMG law enforcement strategy, with representatives from every province/territory.

In his role at the BEU, he substantially contributed to a booklet for frontline law enforcement officers across Canada intended to provide guidance on how to deal with OMG members – he identified a true copy thereof (2006 edition), six of which copies were found at the home of Charlie Burrell in October 2007 – see Exhibit 43, page 83. The booklet contained the personal telephone numbers and names of all Tier 3 law enforcement liaison OMG investigators for each province/territory. A copy was also found at the residence of Rusty Hall in Barrs Settlement, Nova Scotia, in February 2010.

Hall was then Vice President of the BMC Halifax

Chapter - he and his wife were the victims of a double homicide. [ 21 ] Sgt. Isnor and Sgt. MacQueen were listed therein as the responsible persons for Ontario and Nova Scotia. Since 2001, Sgt Isnor was the Tier 3 contact (i.e. operationally the primary inter-provincial and intra-provincial contact person), for Ontario regarding OMG matters. Between 2008 and 2011, he had the responsibility in his position at the BEU, to review every search warrant and results of all OMG clubhouse searches in Ontario. Sgt.

MacQueen indicated that from approximately 2005 to 2014 he was the Tier 3 coordinator for Nova Scotia. [ 22 ] The Tier 3 provincial/territorial coordinators would keep each other advised of developments and share information weekly, and at a minimum monthly, although more often if circumstances required it. I am satisfied that this interaction and exchange of information was continuous, and sufficient to keep Sgt. Isnor apprised of the activities, membership, and characteristics of the BMC in Atlantic Canada. [ 23 ] Sgt.

Isnor also advised “the Americans are very interested in BMC because they travel into the USA”, and that he has had continual contact with his American counterparts. He noted that presently, in Canada, the BMC is the second-largest OMG based on membership. [ 24 ] He has routinely seen BMC representation at motorcycle runs throughout various parts of Canada – most recently, he saw them taking

part in the HAMC Canadian run in Calgary on July 21 – 23, 2017. [ 25 ] His CV, and testimony, clearly establish that he is a nationally and internationally recognized authority on OMGs in Canada.

He is a long-standing attendee and presenter, provincially and nationally at conferences in Canada, as well as internationally, regarding OMGs. [ 26 ] He developed, and continues to maintain an active role in, a cross-Canada training program to ensure qualified expert witness personnel regarding OMGs are available to testify in court. [ 27 ] Since April 2015, when he discontinued his 50-50% CISC/BEU dual role, he has returned to be Operations Manager of the BEU. [ 28 ] His CV outlines when and where he was qualified to present expert evidence on OMGs in Canada.

He has been previously qualified in similar manner to that proposed here, in relation to the HAMC, the Outlaws, Satans Choice and the Red Devils among others. [ 29 ] He has specifically been qualified to testify in a similar manner to that proposed here in relation to the BMC: by the preliminary inquiry judge herein, Provincial Court Judge Flora Buchan; and recently in the unreported decision in R. v. Casola , May 2 –4 2017, Provincial Court in Sudbury, Ontario, by the Honourable Judge Lalonde presiding.

His CV summarizes that he was “qualified to present expert testimony… in regards to the structure, organization, membership, and activities of Outlaw Motorcycle Gangs in general, and specifically regarding Bacchus Motorcycle Club, HAMC, Outlaws Motorcycle Club, and the Red Devils Motorcycle Club.… further qualified to testify on the interrelationships between the aforementioned clubs, their intelligence gathering activities, and the reasons for intelligence gathering.”.

Why Sgt Isnor is qualified to present expert opinion evidence in relation to the BMC [ 30 ] In essence, the defendants say that Sgt Isnor does not have sufficiently reliable “specialized knowledge” about the BMC; nor does he have sufficient education, training regarding, and experience with the BMC specifically, such that he can be considered to have the required “specialized knowledge”; therefore, he cannot give opinion evidence about the BMC. [ 31 ] I disagree with the defendant’s reasoning, I find Sgt. Isnor has specialized knowledge about so-called “outlaw motorcycle gangs/clubs”.

He has made a study of their general nature and characteristics, history, organization structure and hierarchy, culture, values and practices, including the main purposes and activities of the clubs, and their language and symbols.

[ 32 ] As I understand his proposed evidence based on his specialized knowledge, he has an understanding of these issues, which he could apply to the factual matrix available at trial regarding the BMC, and give opinion evidence about the significance of such matters individually and collectively [5] , such that it would be of assistance to this court in determining the issue, whether the BMC was in 2012 demonstrably a “criminal organization” as defined in s. 467.1.

So qualified, he could testify in this regard without having extensive personal knowledge regarding the BMC [6] . [ 33 ] However, in any event, he has an extensive personal knowledge and stores of reliable information received regarding the BMC (including specifically from the very extensive trial evidence of Sgt. MacQueen), inter alia : 1. The BMC mother

chapter in Albert County, New Brunswick, started operation in 1972; thereafter other chapters followed (the Cursed MC located in St. John New Brunswick became the St. John BMC

chapter in 2003; The Mariners MC located in St. George, New Brunswick area became the St. George BMC

chapter January 9, 2010, the same day that the East Coast Riders MC became the Halifax BMC Chapter. 2. The HAMC Halifax, Nova Scotia

chapter ceased operation in approximately 2002. There was some form of relationship between the HAMC and BMC in the years 2000 – 2002: see the Christmas card sent by the HAMC Halifax

chapter in 2001 to the Albert County BMC; the February 18, 2000 HAMC East Coast Canada minutes referencing “we [the Halifax chapter] have just formed a Atlantic coalition with other MC clubs in the Maritimes. Bacchus MC (NB), Highlanders MC (NS), CHC (PEI), Cursed MC (NB).” seized March 28, 2001; and the January 11, 2002, HAMC national meeting minutes - [under the Halifax HAMC

chapter report to the national meeting] “Bacchus MC from Moncton proposed for Prospect. If you charter votes No, send the votes to Michael within 30 days.

If there aren’t any No votes they will make them prospects” –seized February 26 2004; there is also photographic evidence in Exhibit 40 page 53 showing the BMC were a Hells Angels Hang Around Chapter; some form of relationship continued thereafter given the visible HAMC “support gear” and congratulatory plaques to the BMC, photographs showing members of the BMC and HAMC together (for example in the Sherbrooke, Québec HAMC clubhouse) , in calendars and otherwise, as found in searches of the Albert County BMC clubhouse in 2005 and 2007, and the Route 81 store in Charlottetown which was being run by Albert County BMC member, Dean Huggan; 3.

Sgt. Isnor became the Ontario Tier 3 coordinator in 2001 regarding the national OMG strategy, and would have thereafter received a continuous flow of information regarding OMG activities in Atlantic Canada; 4. Sgt.

Isnor was familiar with, and had personal dealings with members of OMGs in Ontario, who then moved to the Atlantic provinces and joined the BMC there - Tero Rampanen, Matthew Foley, Art Belson, Brian Schofield, Clinton Murray; he also had insights as a result of his close contacts with David Atwell and Stephen Gault, HAMC Ontario members who travelled to the Atlantic Provinces, and had connections with BMC; as well as the fact that the Ontario Red Devils had an association with BMC since 1995, and during the years 2005 – 2014, they wore respective affiliation badges, until the Red Devils patched over to HAMC in 2014; 5.

While serving on the CISC, Sgt. Isnor would have had even greater insights into the activities, characteristics and status of the BMC, including the vetting by analysts of raw data, so that only reliable information was generally disseminated; 6. Sgt. Isnor also reviewed the materials seized and photographed in the 2005 and 2007 searches of the Albert County BMC clubhouse, and the 2012 Hants County clubhouse search, as well as debriefed with Sgt. MacQueen (and others) who provided very extensive reliable, and first-hand information to assist Sgt. Isnor in formulating his opinion [7] ; 7. Sgt.

Isnor has personally attended in the Atlantic provinces to see some BMC clubhouses, and view their membership in person. Conclusion [ 34 ] I am very satisfied that Sgt. Isnor, has the necessary education, training, experience and specialized knowledge, to allow him to testify in this trial as suggested by the Crown’s proposed qualification wording. I will qualify him on that basis. I find no reasons to restrict or preclude his anticipated evidence on a probative value/prejudicial effect basis. Rosinski, J.