)) HER MAJESTY THE QUEEN Applicant – v. –, 2013 ONSC 1076

CITATION : R. v. Williams, 2013 ONSC 1076 COURT FILE NO.: 12-40000008-0000 DATE: 20130219 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Applicant – and – LAVARE WILLIAMS and CHAEL MILLS Respondents ) ) ) ) ) ) ) ) ) ) ) ) Patrick Clement and Mary Misener, for the Crown R.

Roots Gadhia, for the Accused, Lavare Williams Talman Rodocker, for the Accused, Chael Mills HEARD: January 14, 15, 17, 18, 21, 22, 23, 25, 28, 31, 2013 APPLICATION #7 ADMISSIBILITY OF EXPERT OPINION AND RELATED EVIDENCE REASONS FOR DECISION Clark J.: INTRODUCTION [ 1 ] On May 3, 2010, Mitchell Celise was shot to death in broad daylight on a Toronto street. The accused are charged with his murder. [ 2 ] The Crown alleges that the accused are members of “M.O.B.

Klick”, a street gang said to be affiliated with the Bloods, and killed Celise, who was a member of a rival gang, the Eglinton West Crips (“EWC”), to avenge the death of another M.O.B. Klick member a short time earlier. [ 3 ] The Crown applies to be permitted to call Detective Douglas Backus, of the Toronto Police Service (“TPS”), as an expert witness on the subject of street gangs. The defence strenuously resists the application. [ 4 ] Following the procedure discussed in R. v. Abbey , 2009 ONCA 624 , 97 O.R. (3d) 330 , leave to appeal ref’d, [2010] S.C.C.A.

No. 125, I dealt with this matter in separate phases. [ 5 ] I first considered whether expert evidence was necessary and, if so, whether Backus is qualified to give the evidence the Crown seeks to adduce. On January 23, 2013, in a brief oral pronouncement, I made known that I considered expert evidence to be necessary and, further, that I would permit Detective Backus to testify as an expert on the subject of street gangs.

I indicated that I would give reasons for that decision as soon as time permitted; those reasons are set out below. [ 6 ] I next considered what evidence the Crown could adduce as well as the nature and scope of Detective Backus’ opinions, both generally and in specific relation to that evidence. On January 31, 2013, although I had not completed my reasons for decision, in order to assist counsel with their trial preparation I released a provisional ruling [1] indicating what evidence Detective Backus could refer to and what limitations I would place on the opinions he could express.

I indicated that I would give more fulsome reasons for that ruling as soon as time permitted. Those reasons also follow. BACKGROUND [ 7 ] The street gang “M.O.B. Klick” is said to exist in the area of Vaughan Rd. and Oakwood Ave. in central Toronto. The gang is alleged to be comprised of younger members of another gang known to exist in the same area, the Vaughan Road Bloods. The

Vaughan Road Bloods and M.O.B. Klick are both said to be associated with what is referred to as the “Blood Nation”.[2] The EWCpurport to control an area that abuts the area over which M.O.B. Klick exerts control. [8] In addition to a general antipathy toward EWC that typifies relations between Bloods and Crips, there is evidence that, at thetime Celise was killed, members of M.O.B. Klick bore a particular grudge against EWC because they believed that a member of theEWC had recently shot and killed a M.O.B. Klick member, one Robert Flagiello, also known as “Bubba”.

POSITION OF THE APPLICANT [9] Counsel for the Crown concedes that the average prospective juror will be aware in a general way of the existence of streetgangs, but argues that the particular habits, customs, attitudes, argot, and likes and dislikes of members of street gangs will all likely beforeign to the jury. As such, the jury will need assistance to come to a correct conclusion with respect to the significance of the evidencethey will hear. That said, Ms. Misener takes the further position that Det.

Backus is amply qualified to provide the jury with theadditional information they require to properly consider the issues in this trial. POSITION OF THE RESPONDENT MILLS [10] In terms of Phase I of this application, in his written submissions on behalf of Mills,[3] Mr. Rodocker contended that expertevidence was not necessary in this case and, in the alternative, if it could be said to be necessary, while he conceded that Det.

Backus hassufficient qualifications to properly be considered an expert concerning street gangs, he went on to argue that Backus has nodemonstrated expertise to qualify him to opine on the issue of whether a criminal organization exists. Mr. Rodocker made no oralsubmissions during the Phase I argument. [11] When it came time to argue Phase II of the application, although Mr.

Rodocker began his oral submissions by indicating thathe did not challenge Backus’ expertise and did not quarrel with the Crown’s assertion that expert evidence on this subject could be said tobe necessary in this case, oddly enough he immediately went on to argue that Backus was both biased and reckless in formulating hisvarious reports, such that the court should not qualify Backus to give the opinions the Crown would have him impart to the jury.

I say“oddly enough” because it seems to me that this question goes directly to the issue of whether he should be qualified as an expert at alland not, with respect, to the secondary question of what he should be permitted to say and how he should be permitted to say it. [12] Mr. Rodocker’s principal objection at this second stage was to the evidence proffered by the Crown on the basis that, for themost part, it bespeaks bad character on the part of his client and therefore will invite propensity reasoning.

He also objected that noproper foundation had been laid upon which some of the Crown’s proffered evidence could be attributed to his client. Accordingly, itsprobative value is outweighed by its prejudicial effect. As for the opinions that Backus should be entitled to express, I will deal withthese complaints in some greater detail as I come to discuss the individual pieces of evidence upon which I have earlier ruled the Crownmay rely. POSITION OF THE RESPONDENT WILLIAMS [13] As for Phase I, on behalf of Williams, Ms. Gadhia, like Mr.

Rodocker, took the position that the jury is capable ofunderstanding the street gang phenomenon, such that there is no need for an expert witness. [14] In the alternative, Ms. Gadhia took the further position that the court ought not to be satisfied that Backus is a qualified expertbecause he is biased, because has no real knowledge of the particular gangs in question and because he was reckless in his methodology.Counsel suggested that the fact that Backus had been qualified in the past did not mean that he ought necessarily to be qualified again. [15] As for Phase II, Ms.

Gadhia adopted essentially the same position as Mr. Rodocker that the probative value of the evidenceproffered by the Crown is eclipsed by its prejudicial effect. I will deal with some of her specific complaints as I come to discuss theevidence I have ruled admissible. DISCUSSION PHASE I QUALIFICATION OF THE EXPERT Is Expert Evidence Necessary? [16] Before a witness may be qualified to give expert evidence, the court must first determine that the expert’s evidence will notmerely be helpful to the jury, but, rather, that it is necessary to assist the jury to come to a proper determination of the case: R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9. [17] The jury will be asked to examine videos and still photographs of numerous things found in the area in which M.O.B. Klick issaid to exist and to examine many images of persons said to be members of the gang.

There is no doubt in my mind that most of whatBackus has to say about the significance of a great many of these things would simply not occur to the average juror. [18] The jury will also be asked to interpret numerous oral utterances from certain videos, as well as what is written in variousletters seized from custodial facilities and documents seized in the execution of a search warrant at 481 Vaughan Rd., the address of theaccused prior to their arrest. The unique argot used in street gang culture is replete with words and phrases that would not be intelligibleto the average person not steeped in that milieu.

The following are but a few of a great many examples found in the material the jury willhave to consider. [19] Dealing first with individual words, I am satisfied that the average person would not likely understand the word “Crab” (or“Crabe”) to be a derogatory term commonly used by members of the Bloods to refer to a person affiliated with the Crips. Likewise, the

average juror would not understand the word “Dblock” to refer to the Dufferin St. and Eglinton Ave. West area of Toronto, to which the EWC lay claim. [ 20 ] By way of another example, Backus will say that gang members routinely deliberately misspell words containing the letter “c” by inserting the letter “k” immediately after the “c”.

Given the appallingly bad orthography and syntax displayed in most of the documents attributed to the accused that the jury will see, I very much doubt that the average juror would understand that the misspellings were intentional acts reflecting Bloods shorthand for the words “Crip Killer”. [ 21 ] Turning to an example of the many lyrics the jury will hear, both in the video evidence and in certain documents, in my opinion the average juror would not likely understand two lyrics spoken by Mills in a YouTube video (“Show you what my hood’s like, everything for a good price” and “M.O.B.’s the shit, heartless in the building run the building like a landlord”) to mean that Mills, who is known by the nickname “Heartless”, is, on Backus’

interpretation, boasting that he controls the sale of controlled substances in an area controlled by M.O.B.

Klick. [ 22 ] The jury will also require assistance to comprehend the significance of much of the imagery they will see in the videos and still photographs that will be adduced. [ 23 ] I suspect, for example, that something as innocuous as a young man pouring the contents of a beer bottle onto the ground would not be understood by the average person to be a gesture of respect for a deceased gang member. [ 24 ] Likewise, according to Backus, images of a street sign or an address on an apartment block that appear in a video are meant to be, at one and the same time, both an assertion of the gang’s control over the territory in which those places find themselves and a warning to members of other gangs to stay out of that area.

To my mind, that is not something that would be intuitively obvious to the average juror. [ 25 ] A screen capture from one of the videos the jury will see depicts a red bandana covering the lower part of a sign on the outside of a building. The bandana obscures what experience suggests is probably the word “PARKING”, leaving visible only the words “NO VISITOR”.

The average person might know that members of the Bloods tend to wear the colour red, but would not likely deduce, as Backus will opine, that this image is a message to members of rival gangs to stay out of the area. [ 26 ] Backus cites literally scores of such examples in the two reports he compiled for this case, which total in the aggregate nearly 130 pages; the handful mentioned above are merely illustrative of the basis upon which I have concluded that the jury could not properly assess the evidence they will hear and see without the assistance of someone with Backus’ specialized knowledge.

Indeed, it is, with respect, idle to suggest that expert testimony is not necessary in this case. [ 27 ] Accepting, then, that expert evidence is necessary, I turn to consider whether the proposed witness has the required expertise to warrant receiving his evidence. Is Detective Backus Suitably Qualified to be Ruled an Expert? [ 28 ] In 2012, in R. v. Gager , 2012 ONSC 388 , [2012] O.J. No. 259 , I qualified Det. Backus as a street gang expert.

Obviously, that does not preordain the same result in this trial, but I mention Gager because, in that case, I discussed at some length the law to be applied to the issue of expert evidence. Therefore, for the sake of brevity, rather than reproduce that discussion here, suffice it to say that, to the extent that they are applicable, I adopt and apply my reasons from Gager on the issue of Backus’ qualification in this case, as well as on the issue of the nature and scope of the opinions Backus may offer. [ 29 ] Det.

Backus’ qualifications are set out in his curriculum vitae , which forms part of the Crown’s Application Record , and were amplified by his viva voce evidence on this application. I do not propose to refer to the evidence of his qualifications in detail.

Suffice it to say, Backus has many years’ experience investigating street gangs from which he has gained a wealth of knowledge on their structure and workings, their raison d’etre, their customs and habits, the language they typically use, the concept of territoriality they espouse, the means by which they enforce such territorial claims, and the nature of their relations with other street gangs. [ 30 ] One of the principal complaints from counsel for both accused is that Backus is not impartial. As I indicated in Gager , at paragraph 188, and in R. v. Gager , 2012 ONSC 1472 , [2012] O.J.

No. 1027 (“ Gager No. 2 ”), at paragraph 67, while there is authority for the proposition that a trial judge has discretion to exclude an expert’s evidence where it appears the expert is biased, in my opinion the better view is that bias goes to weight, not admissibility. Even if bias were dispositive for disqualification of an expert, however, I do not agree that Backus exhibited bias. [ 31 ] According to Mr. Rodocker, Backus is “a hired mouthpiece”; according to Ms. Gadhia, he is “a hired gun”. In my opinion, as well as unflattering, both characterizations are unwarranted and unfair.

Neither counsel ever gave any convincing support to their bald accusations in this behalf. [ 32 ] Mr. Rodocker suggested that the mere fact that Det. Backus is a police officer suggests that he has an interest in the outcome of the case. I disagree. As I indicated in Gager , the mere fact that Backus is a police officer does not, a priori , bespeak bias. In criminal litigation, police officers are routinely qualified as experts in many diverse fields, including the area in which the Crown seeks to qualify Backus.

Nor does the fact that, when challenged on certain points in cross-examination, Backus was firm in his opinions equate with bias. In short, I saw no demonstrable bias on Backus’ part. I found that his written reports, which the Crown filed as part of its Application Record , were balanced and fair. Similarly, I found that, in his viva voce evidence in this hearing, Backus answered questions in a consummately fair-minded and helpful manner.

Moreover, he was quick to acknowledge the very few mistakes that counsel were able to find in his extensive written reports. [ 33 ] As for the suggestion that Backus is not qualified because he has no firsthand knowledge of the particular gangs in question, Ms. Gadhia made much of the fact that Backus had no direct investigative experience in which the target of the investigation was a Bloods gang; rather, all his experience was in relation to Crips gangs. But the fact is that Backus has extensive knowledge of the street

gang culture in general terms. Therefore, it strikes me that one cannot know a significant amount about one organization without havingsome awareness, certainly exceeding that of the average juror, of the culture of the other.[4] [34] In my opinion, this is no different than a person with no knowledge of auto mechanics asking a master mechanic to diagnosewhat is wrong with a make of automobile the mechanic has never been trained to repair. Just because the mechanic may not have dealtwith this particular make of car before, it does not follow that he suddenly ceases to be an expert in automobile mechanics.

Despitehaving no training with respect to the particular automobile, he is vastly better situated to diagnose the problem than the untutored personwho brought him the car. [35] I turn next to Mr. Rodocker’s suggestion that Backus was reckless. Counsel for Williams also criticized what she contendedwas Backus’ carelessness. These submissions are based principally on two facts. [36] The first fact, which the officer fairly acknowledged in cross-examination, was that he made two mistakes in the reports heprepared in this case. In my view, these mistakes[5] are inconsequential in the scheme of things.

Backus’ reports total 129 single-spacedpages and cover a wealth of material. In my opinion, two small errors in such a compendious body of work hardly merit Backus beingcharacterized as reckless.

On the contrary, I find that the officer was careful in the preparation of his written reports, just as he appearedto me to be when giving viva voce evidence on this hearing. [37] The second fact upon which defence counsel rely in order to characterize Backus as reckless is that, as the basis for some ofhis opinions, Backus relied on facts asserted in police documents known as Field Information Reports[6] (“FIRs”), but did not check theaccuracy of those facts by personally consulting the officers who authored the FIRs.

Three points are apposite. [38] First, this approach, to my mind, is no different than that taken by a great many experts who rely on information authored byothers and supplied to them by the party who retains them, but of which they themselves have no firsthand knowledge. In the vastmajority of such cases, the expert does not consult the author of any particular document before relying on it. [39] Second, even had Backus bothered to check with the officers in person, as defence counsel suggest he ought to have done, theinformation would still be secondhand out of Backus’ mouth.

Counsel suggest that Backus’ ability to be confident in the accuracy of theinformation he learned from the FIRs would have been enhanced by speaking firsthand with the authors of those reports. But, for themost part, and perhaps entirely, he would not have known the officers and therefore would have had little or no idea how reliable anyparticular officer’s information in fact was. So the distinction counsel seek to draw is illusory, in my opinion.

To the extent that hisopinion relies on information from FIRs, the strength of that opinion will be, in the final analysis, a function of the extent to which theCrown proves the underlying facts by calling the authors of those documents: R. v. Abbey, (SCC), [1982] 2 S.C.R. 24. [40] Third, even if I were persuaded that Backus had been reckless, which I am not, the nature of the recklessness argued here isnot such as to impinge on the reliability of the core of his evidence, nor does it diminish his experience and knowledge in this area. In R.v. Sappleton, 2010 ONSC 5704, [2010] O.J.

No. 5366, at paragraph 50, in deciding whether Backus would be qualified to give expertevidence, Trafford J. found that Backus had been careless in failing to adequately check certain facts upon which he relied for hisopinions, but held, nonetheless, that his evidence was admissible because his lack of care went to the probative value of his evidence, notits admissibility. [41] I am not, however, persuaded that Backus was reckless in the preparation of his reports and I would not exclude his evidenceon that basis. [42] In the result on this first phase, I am satisfied that expert evidence is necessary and, further, that Det.

Backus is a suitablyqualified expert. PHASE II PERMISSIBLE NATURE AND SCOPE OF THE EXPERT’S OPINIONS [43] I turn now to discuss the admissibility of some of the evidence upon which the Crown seeks to have Backus testify.

Followingthat, I will discuss certain limitations I will impose on the manner in which Backus may impart his knowledge and opinions to the jury. [44] Before turning to the specifics of Backus’ evidence, I wish to discuss, very briefly, the principal complaint the defencecounsel raise to the reception of the proffered evidence, namely, that much of it bespeaks bad character on the part of the accused. Thus,it is inadmissible on that ground alone because its probative value is outweighed by its prejudicial effect. [45] To begin, in R. v.

B. (L.) (1998), (ON CA), 35 O.R. (3d) 35 (C.A.), at pp. 54-55 and pp. 58-59, CharronJ.A., as she then was, said the following concerning the nature of prejudice in terms of deciding the admissibility of evidence: Identifying the issue in the trial to which the proposed evidence relates is particularly important given the prejudice which may arisefrom the admission of evidence of discreditable conduct. It is important to keep in mind what is meant by prejudice in this context.

Thedanger which must be guarded against is that the trier of fact, in relying on the evidence of discreditable conduct, may conclude that theaccused committed the offence with which he is charged based, not on the strength of the evidence which has a connection to the issuesin the case, but rather, on the strength of the evidence that he is "a bad person" who would have a tendency to commit this offence. … Evidence of discreditable conduct is inherently prejudicial. Indeed this feature forms the basis of the underlying rationale for the similarfact evidence rule.

Again, in assessing the prejudice of the proposed evidence, it is important to keep in mind what is meant by prejudicein this context. It is the effect this kind of evidence may have in compelling a trier of fact to find the accused guilty not on the strength ofthe evidence marshalled against him in relation to the offence with which he is charged, but on the strength of the evidence of his badcharacter. Therefore, it follows that, in general, the higher the probative value of the evidence, the lesser the prejudicial effect.

Conversely, any weaknesses which have been identified in the course of assessing the probative value of the evidence will generallyincrease the prejudicial effect. [46] As I indicated in R. v. Gager, 2012 ONSC 2697, [2012] O.J. No. 2085 (“Gager No. 3”), at paragraph 38 ff.: 38 It is axiomatic that evidence of bad character is inadmissible where it shows nothing more than that the accused is the type ofperson likely to have committed the offence: R. v. S.G.G., (SCC), [1997] 2 S.C.R. 716, at para. 63.

Having made thatobservation, however, Cory J. then set out the following three exceptions to the general prohibition: (1) where the evidence is relevant to an issue in the case: see, for example, Morris, (SCC), [1983] 2 S.C.R. 190, supra,at p. 202; B. (F.F.), supra, at p. 731. See also R. v. Lepage, (SCC), [1995] 1 S.C.R. 654, at pp. 672-74; R. v.

Hinchey, (SCC), [1996] 3 S.C.R. 1128, at para. 135, per Cory J. … 39 At paragraph 64 ff. of S.G.G., Cory J. then went on to state: Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown's theory of the case,such as motive, opportunity or means: see R. v. Davison (1974), (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.); Hinchey,supra, at para. 135. Evidence of motive, for example, is always relevant in that it makes it more likely that the accused committed thecrime, although it is not an essential element of criminal responsibility: Lewis v.

The Queen, (SCC), [1979] 2 S.C.R.821. Evidence which is directly relevant to the Crown's theory of the case is admissible even though it may also demonstrate the bad characterof the accused, as long as its probative value outweighs its prejudicial effect: B. (F.F.), (SCC), [1993] 1 S.C.R. 697,supra, at p. 731. [Emphasis added.] [47] In this case, much of the evidence the Crown seeks to adduce in connection with Backus’ opinions bespeaks bad character onthe part of the accused, but it is not being introduced to show bad character per se, but, rather, to show: (

i) that M.O.B. Klick is a street gang (and, by extension, a criminal organization); (ii) that the accused are members of M.O.B. Klick; and (iii) that, as members of the gang, the accused had a powerful motive to commit the crime with which they presently standcharged. In short, the vast bulk of the proffered evidence is highly relevant to motive. [48] Moreover, the evidence does not go solely to motive. Respecting Mills, in order to prove he committed first degree murder,contrary to s. 231(6.1) of the Criminal Code, the Crown must prove, as an essential element of the offence, that the M.O.B.

Klick is acriminal organization, as defined by s. 467.1(1) of the Code, and that Mills committed the murder for the benefit of, or in associationwith, that organization. Obviously, evidence showing the nature of the gang and Mills’ membership in it is central to the Crown’s abilityto prove murder by way of this subsection. Criminal Antecedents of Alleged Gang Members Not Before the Court [49] The Crown seeks to prove the criminal antecedents of persons not before the court said to be members of M.O.B. Klick as ameans by which to establish that the entity known as M.O.B. Klick is in fact a street gang.

The convictions of other alleged memberswould tend to establish, the Crown contends, that M.O.B. Klick is a gang because the crimes of which the third parties have beenconvicted are, according to the Crown’s expert, of a type typically committed by members of street gangs. For the following reasons, Irefused to permit the Crown to do that. [50] To begin, the manner in which the Crown sought to prove the prior bad acts of third party alleged gang members isproblematic.

Although the Crown acknowledges that, while the pleas constitute admissions by the persons who made them, they are notbinding, obviously, on the accused. The Crown contends that that difficulty is overcome by s. 23 of the Canada Evidence Act, whichprovides that transcripts of judicial proceedings may be admitted as proof of their contents.

While that is correct, the problem is that thetranscript only provides evidence of what took place in court and is no evidence of what actually occurred in the course of the incidentgiving rise to the charge being dealt with in the proceeding transcribed. [51] Even assuming one could prove the prior convictions, the problem with the Crown’s logic is that it ignores the fact that justbecause a crime is of the sort often committed by gang members it does not follow that any particular crime was committed inassociation with or for the benefit of the gang.

For this calculus to have any probative value in this case, then, it would be necessary toexplore the circumstances of each of the convictions to determine whether it would be reasonable to conclude that the third partycommitted the offence in question for the benefit of the gang. That would involve a series of mini-trials that would divert this trial andadd considerable confusion to the jury’s task. It is trite to observe that one basis upon which evidence will tend to cause the prejudicialeffect of evidence to outweigh its probative value is where it delays the proceedings and/or distracts the jury: R. v.

Cyr, 2012 ONCA 919,[2012] O.J. No. 6148, at para. 104. [52] In

summary, then, I find that the potential prejudice of evidence of the criminal antecedents of third parties outweighs itsprobative value.

Criminal Antecedents of the Accused [ 53 ] I move next to the criminal antecedents of the accused. (

i) Lavare Williams [ 54 ] Dealing first with Mr. Williams, the Crown seeks to adduce evidence that he has been convicted of possession of marijuana. He was originally charged, in 2009, with possession for the purpose of trafficking, but pleaded guilty to simple possession. [ 55 ] The Crown contends that Williams’ conviction reflects that he possessed of an amount of marijuana at a place said to be within the gang’s “turf”.

Further, the Crown asserts that the drugs in his possession were individually wrapped in small packages consistent with the way in which someone intending to traffic the drug would do and, in addition, that he was at the same time found in possession of one of the typical tools of a trafficker, namely, a digital scale. Moreover, according to Backus, only gang members are permitted to traffic narcotics on gang turf, such that an intention to traffic drugs in that territory is strongly indicative of the person being a member of the gang. [ 56 ] Admittedly, those circumstances suggest an intention to traffic.

Trafficking is an offence, so Backus would say, typically committed by members of street gangs. [ 57 ] The first problem with this evidence, however, is that it is dated. The probative value of one incident more than a year prior to the offence charged is slim at best. [ 58 ] The second problem is the circumstances surrounding the arrest of Mr. Williams on this charge. Williams was a passenger in a car and there is no evidence as to where the occupants of the car were bound when stopped and investigated by the police.

Although I appreciate that my so-called “gatekeeper function” involves only a limited ability to weigh the evidence, it is questionable, to my mind at least, whether the offence even suggests gang involvement. [ 59 ] Further, it is not admitted that the accused had the drugs for the purpose of trafficking, such that it will involve another mini- trial that would, in turn, distract the jury. [ 60 ] In the final analysis, I am satisfied that the probative value of the prior conviction is outweighed by its prejudice and the Crown is forbidden from adducing evidence of it in its case in chief. (ii) Chael Mills [ 61 ] Turning to Mills, the Crown seeks to adduce evidence of several of his prior convictions. [ 62 ] The accused has several drug related convictions from 2006.

The Crown concedes that these convictions do not relate in any way to M.O.B. Klick; rather he acquired them in Oshawa, Ontario. Therefore, they do not show that he is likely a member of M.O.B. Klick by virtue of having committed crimes typically committed by members of street gangs and, thus, they are not circumstantial evidence that he was a member of M.O.B. Klick. The Crown seeks to adduce them, nevertheless, to show that the accused is familiar with drug dealing, such that evidence of the convictions is relevant to show that he was likely a member of M.O.B.

Klick. [ 63 ] The accused is presently 23 years of age. In my view, given his age at the time he committed the drug offences, the convictions are too remote in time to be of any significant probative value and I would exclude them on that basis alone. Even if they were closer in time, I would still exclude them because, to my mind, the inference the Crown would seek to have the jury draw based on those convictions is so weak that it amounts to nothing more than evidence of bad character per se . [ 64 ] The Crown also seeks to adduce to adduce evidence of a prior conviction for assault with a weapon.

That conviction involved an incident on April 11, 2008, more than two years prior to the offence charged on this indictment, wherein Mills and another alleged gang member, one Floyd Francois, were passengers in a car driven by Mr. Mills’ godfather, a Mr. Dietrich. While driving within gang turf, they suddenly ordered Dietrich to pull over, whereupon Mills and Francois got out of the car and began to assault a young man standing at a bus shelter.

Mills is said to have stabbed the victim with a knife. [ 65 ] There are several problems with this incident being put before the jury. [ 66 ] First, there are problems of proof. It is unclear whether either the victim or Mr. Dietrich, the driver of the car, is available and, more importantly, willing to testify. [ 67 ] As for Francois, I am advised he has been deported and, even if he were available, I have grave doubts whether he would be willing to testify. [ 68 ] The Crown contends Francois’ unavailability is not a problem because it can prove the conviction by adducing a transcript of Mills’ guilty plea.

However, I am advised that the transcript does not mention Mr. Francois. The Crown hopes to overcome that difficulty by introducing into evidence, along with the Mills transcript, a certified copy of an indictment against Mr. Francois in respect of the offence, wherein he pleaded guilty to assault with a weapon on the same victim. Nowhere on the indictment, [7] however, is Mr. Mills mentioned. To link the two matters, then, the jury would have to infer that the victim was only assaulted once on the day in question.

The inference is not a quantum leap, perhaps, and if this were the only problem, I might admit the evidence. Unfortunately for the Crown, this is not the only problem with the proposed evidence. [ 69 ] Second, the stabbing incident is somewhat dated, thereby lessening its probative value.

[70] Third, although the incident shows Mills acting in concert with Francois, apart from the location of the assault being withinthe geographical area over which M.O.B. Klick endeavours to exert control, there is nothing about the earlier incident that shows in anyconvincing way that the assault was committed for the benefit of or in association with a criminal organization. [71] Fourth, although in this earlier incident Mills used a knife, whereas he is alleged to have used a gun to kill Mr.

Celise, theattacks were similar in the sense that, in each case, the victim had done nothing obvious, at least not at the time of the attack, to incur thewrath of Mr. Mills, but, rather, just happened to be present when Mills and a confederate set upon him. To observe that the stabbingincident is apt to characterize Mr. Mills in the eyes of the jury as a man predisposed to violence is to state the obvious. For the stabbingincident to show Mills’ connection to M.O.B.

Klick and, further, that he likely committed the offence for the benefit of, or in associationwith, a criminal organization would require something more than has been presented to me. In the absence of any such further evidence, Iam of the opinion that the probative value of the earlier stabbing incident is significantly outweighed by its obvious prejudicial effect. [72] Fifth, if I were to allow this evidence, it would amount to a mini-trial of sorts that would distract the jury to a degree thatwould exceed the probative value of the evidence in terms of the issue it is meant to prove in this case.

I say that bearing in mind that theprobative value is diminished by other admissible evidence tending to show that Mills is a member of M.O.B. Klick and that he mayhave shot Celise in association with, or for the benefit of, M.O.B. Klick. [73] On balance, then, I have concluded that the probative value of Mr. Mills’ prior convictions is outweighed by their potentialprejudice. In the result, none of Mills’ prior convictions are admissible in the Crown’s case in chief.

Letters Allegedly Authored by Floyd Francois [74] The Crown sought to adduce several letters allegedly authored by Floyd Francois (“the Francois letters”). As noted above, heis alleged to be a M.O.B. Klick member. The letters are meant to show the existence of M.O.B. Klick as a criminal organization.[8] [75] Counsel for Mr.

Mills objects to the admission of the letters on the following grounds: [76] The objection that the letters are not authenticated is based on the fact that there is no direct evidence of authorship and theletters were signed in what the Crown contends were false names for the purpose of avoiding detection by the authorities.[9] As for theintended recipients, the Crown contends that all of the letters it proffers were, for the most part, addressed to a person other than theintended recipient. [77] In response to this objection, the Crown says that it can show circumstantially that Francois was the author of the letters byreliance on the following evidence: [78] In R. v.

Evans, (SCC), [1993] 3 S.C.R. 653, at pp. 664-65, Sopinka J. held, relying on McCormick onEvidence, that authentication is not a question of fact upon which admissibility depends, but, rather, provided there is a prima facieshowing, the ultimate question of authenticity is for the jury.

On the strength of the aforementioned evidence, I am satisfied that there isa sufficient body of circumstantial evidence upon which the jury could reasonably attribute the letters to Francois. [79] To the objection that the letters are hearsay, Crown counsel contends that the letters are not hearsay because they are notbeing adduced for their truth.

In the alternative, Crown counsel asserts that, if they are hearsay, they are nonetheless admissible as: [80] Dealing first with the principled approach to the rule against hearsay, Crown counsel asserts that the necessity criterion ismade out with respect to the Francois because he has been deported. However, in R. v. O’Connor (2002), (ON CA),170 C.C.C. (3d) 365 (Ont.

C.A.), the court held that, to establish necessity, the Crown must do more than merely show that a witness isout of the jurisdiction and, hence, not compellable; rather, it must demonstrate that it made suitable efforts to obtain or preserve thewitness’ evidence, but was unable to do so. [81] Likewise, in R. v. Heath, 2010 ONSC 3161, [2010] O.J.

No. 2276, at paragraph 13, Pomerance J. refused to admit thestatement of a witness who was out of the jurisdiction because the Crown had not taken reasonable steps to preserve his evidence prior tohis deportation. [82] In this application, no evidence was called to explain why the Crown did not take any of the steps suggested in O’Connor topreserve the evidence. In the final analysis, I am not persuaded that necessity has been established. Therefore the documents are notadmissible via this route. [83] As for the statements amounting to oral acts, I am not persuaded that that exception applies here.

As Fuerst J. pointed out in R.v. Lindsay, (ON SC), [2005] O.J. No. 61 (S.C.J.), at paragraph 119, quoting Wigmore on Evidence, ChadbournRevision, vol. 6, at p. 267, a verbal act is an utterance that “accompanies conduct to which it is desired to attach some legal effect. Theconduct or act has intrinsically no definite significance, or only an ambiguous one, and its whole legal purport or tenor is to be moreprecisely ascertained by considering the words accompanying it.” Here there is no act that the words accompany.

Rather, it is the wordsthemselves that are important, at least to the extent that they were written; that is to say, there is no other act that the words explain orclarify. [84] Turning to the exception for statements reflecting the declarant’s state of mind, in Lindsay, one of the questions before thecourt was whether the Hells Angels was a criminal organization.

Fuerst J. held that the statements of persons not before the court,although not admissible to show the state of mind of anyone other than the declarant, were nonetheless admissible because they reflectedthe state of mind of the declarant, which was relevant to the issue of whether the declarant was a member of a criminal organization. [85] Similarly, in R. v. Sandham, (ON SC), [2009] O.J. No. 4527 (S.C.J.), Heeney J. held that the lettersauthored by certain persons not before the court were relevant to show the states of mind of those persons.

Their respective states ofmind were, in turn, some circumstantial evidence of a state of affairs that existed among certain motorcycle gangs. The nature of thoserelations was central to proving the motive underlying the murders being tried.

[ 86 ] In R. v. Violette , 2008 BCSC 422 , [2008] B.C.J.

No. 2781 , another case involving allegations of persons committing criminal offences for the benefit of a criminal organization, Romilly J., relying on Lindsay , stated, at paragraph 48 , “When it comes to ascertaining the collective nature of an organization, it is only reasonable that the beliefs and states of mind of individuals who comprise that organization will have relevance in that regard.” Romilly J. then went on to hold, at paragraph 50, that “statements that pertain to the knowledge and beliefs of members as to the criminality of their colleagues and of the EEHA itself ... are relevant to the issue of whether the EEHA is a criminal organization.” [ 87 ] In this case, I am of the view that the statements of Francois fall into the same category as the statements in the cases cited above.

They are evidence of the state of mind of the writer; his state of mind is, in turn, some circumstantial evidence of the existence of the criminal organization the Crown alleges. Accordingly, with the exception of the letter earlier alleged to be addressed to Francois, but now alleged to have been addressed to Richard Steele, the other Francois letters are admissible. [13] [ 88 ] At paragraphs 38 through 40 of its factum on this issue, the Crown concedes that certain portions of some of the letters should be redacted. These include: [ 89 ] Turning to the prejudicial effect of which Mr.

Rodocker complains, it must be remembered that the Crown must prove that the accused belonged to a criminal organization and that the organization is an enduring entity with some structure to it: R. v. Venneri , 2012 SCC 33 , at para. 35 . The letters tend to show the state of mind of Francois in relation to the gang and, as the authorities discussed above indicate, his state of mind is some circumstantial evidence of the actual existence of the gang. Therefore, I consider the evidence of these letters to be highly probative. [ 90 ] The proffered letters say little, if anything, about Mr.

Mills, so there is nothing that is directly discreditable about them. It is fair to say, of course, that Francois repeatedly addresses Mr. Mills in the letters in a way that suggests that Mr. Mills is a gang member, but I will instruct the jury that they may not use those forms of address as any evidence that Mr. Mills is in fact a gang member because that would be a hearsay use of the letters. However, provided that the jury is given a proper instruction in that behalf, I do not see the letters as being prejudicial. [ 91 ] As for references in the letters to Mr.

Williams, the Crown agrees that it must redact any and all such references. That being said, the introduction of the letters for the limited purpose of showing Francois’ state of mind, as some circumstantial evidence of the existence of M.O.B. Klick, creates no prejudice to Mr. Williams. [ 92 ] In the final analysis, apart from the redactions mentioned above, I hold that, other than the Steele letter, the letters attributed to Francois are admissible.

Letters Allegedly Authored by Mills [ 93 ] As with the Francois letters, there are problems of proof for the Crown in establishing that Mills was the actual author of several letters the Crown attributes to him (“the Mills letters”). [ 94 ] In the case of the Mills letters, while none of them purport to be signed by Mills, the Crown also has a group of documents seized during the execution of a search warrant at 481 Vaughan Rd. in Toronto, where Mills is said to have resided before his arrest.

While those documents are not admitted to be authored by Mills, there is circumstantial evidence from which that inference might be drawn. The Crown has used that set of documents as a control sample for purposes of having a handwriting analyst compare them to the letters attributed to Mills. I am satisfied that there is sufficient evidence from which the jury could reasonably conclude that Mr.

Mills authored the letters. [ 95 ] If the jury were to find as a fact that the letters were written by Mills, then, in the same way as the Francois letters, they would be potentially probative, as against both accused, of the existence of M.O.B. Klick as a gang. By extension, as against Mills, the letters would also be some evidence of his membership in M.O.B. Klick. Turning to Williams, the jury will have to be cautioned, of course, that, as distinct from their being some circumstantial evidence of the existence of M.O.B. Klick, the Mills letters are no evidence that Williams is a member of M.O.B.

Klick. [ 96 ] Counsel for Mills does not dispute the probative value of the letters, but contends that it is outweighed by their prejudicial effect on the jury. I disagree. [ 97 ] The Crown has redacted significant portions of the letters to remove certain passages that are unnecessary to its case and that tend to portray Mills in a negative light. For example, the letters contain numerous unflattering references to women. Much of what is left after redaction also portrays Mills in a negative light, but the negative information relates directly to the issue of whether he is a member of M.O.B.

Klick, whether M.O.B. Klick is a street gang and, by extension, whether it is a criminal organization. I am of the opinion that the probative value is potentially high and I am satisfied that any prejudice the letters engender can be overcome by proper instruction. [ 98 ] Counsel for Williams objected to certain references to her client in the Mills letters, but the references to Williams are centrally important to make clear that that Mills is speaking at certain points about the killing of Mr. Celise.

To remove the references to Williams would be to rob the letters of a vitally important aspect of their overall probative value to the Crown in its case against Mr. Mills. Obviously, at the risk of repetition, beyond the limited use they may have to enable the Crown to establish that M.O.B. Klick exists, the letters are otherwise no evidence against Williams.

The jury must be told that in very clear terms, both at the time the letters are introduced and again in my final instructions. [ 99 ] I turn now to the specific proposals for redaction. [ 100 ] Respecting the letter putatively written by Dennis DaSilva to Francois, Mr. Rodocker seeks to add a passage [14] to the portion that the Crown agrees it must redact. Mr. Rodocker objects to the passage going before the jury because it refers to Mills being in a fight in the jail.

I agree with the Crown, however, that it is important to include this passage because the dispute between Mills and the other person appears to have been predicated on that person’s gang affiliation such that the passage amounts to some circumstantial evidence

tending to show Mills’ interest in gangs and gang rivalry. Jury members are not so naive as not to recognize that jail is a place wherethere are often disputes and that sometimes those disputes result in physical combat. To the extent that Det. Backus interprets the portionof the letter to be Mills saying he beat up the other man, even if Mills was the aggressor, that level of violence is a long way fromshooting a man to death. I am confident that, with the benefit of an instruction in this behalf, the jury will not misuse this evidence.[15] [101] Respecting the letter putatively written by J.

Syring to Francois, I agree with the Crown’s proposed redactions. I disagree withMr. Rodocker that the content he complains of (which, on one

interpretation, shows Mills had more than one girlfriend at the same time)must be redacted. It is not even clear to me that Mills acknowledges having more than one girlfriend at the same time. Even if that is afair

interpretation, that is not the sort of character evidence that is apt to persuade, or even help to persuade, a jury that Mills is thereforepredisposed to violence, such that he is more likely guilty of murder as a function of what Mr. Rodocker characterized as “hisphilandering”. On the other hand, the reference to his girlfriend is important to show that he declined a visit with her in order to have avisit from persons the Crown contends are his fellow gang members, to whom he refers in the letter as “da Mobdem”. [102] Respecting the letter putatively sent by Tommy Stephens to Francois,[16] Mr.

Rodocker had no complaint with the Crown’sproposed redaction. Ms. Gadhia was concerned that Mills mentions her client, but, as I have noted above, the reference can be the subjectof an instruction that it is no evidence against Williams. [103] Respecting the birthday card putatively sent by Daniel Omari to Francois, the card is probative in at least two ways. First, itshows a proclivity for using Blood gang symbols. Second, it refers to Francois as “THE GENZ”, which is said to be short for “theGeneral”. In the Blood argot that term, according to Det. Backus, refers to the leader of a gang. [104] Mr.

Rodocker objects to the admissibility of the card because there is no handwriting analysis by means of which to attributethe letter to Mills; two points are apposite. [105] First, the common law provides that lay triers of fact are entitled to make their own comparisons of handwriting unassisted byexpert testimony. It is incumbent, of course, upon the trial judge to give the jury instructions, inter alia, about the quality of theparticular questioned example, and the need for special care in the absence of expert evidence: R. v.

Abdi (1997), (ONCA), 34 O.R. (3d) 499 (C.A.). [106] The court in Abdi made clear that, for purposes of such an exercise by the jury, there must be an authenticated or genuineexample of handwriting against which to which to compare the questioned writing. In this case, while there is no direct evidenceidentifying what I have referred to as the control samples, there is, as noted above, a body of circumstantial evidence from which the jurymight reasonably conclude that Mills was the author of the documents seized at 481 Vaughan Rd.

There are official documents thatassociate Mills to that address and handwritings seized during the execution of the search warrant contain lyrics to songs that Mills singsin the various rap videos that the Crown has tendered and I have indicated the jury may see. [107] In this case, I note that it is not just the comparison of the handwriting on the card to other samples of handwriting upon whichthe jury can rely.

In addition, assuming the jury decides that certain of the Mills letters were in fact written by him, the text of thebirthday card (as distinct from the handwriting) constitutes some circumstantial evidence of the identity of the author. I refer to the factthat the author refers to Francois as “THE GENZ”, which can be compared to the use in the DaSilva letter of the expressions “daGenerally’s [sic]...” and “my General da [sic] Boss...”, which Backus will say are also terms used in gang terminology to refer to the bossof a gang.

Similarly, in the Stephens letter, toward the bottom of the third page, the author wrote, “Freedom Is a must.” The author of thecard wrote, “You ALREDY [sic] KNOW Freedom IS A MUST!” The use of the same expression is some circumstantial evidence from which one might deduce that the author of the card was referring to the remark he made in an earlier letter.[17] [108] Respecting the second letter purportedly written by Stephens to Francois,[18] Mr.

Rodocker has no complaint concerning itscontent, but rests his objection to its admissibility on the fact that there is no handwriting analysis to identify it as having been written bythe same author as the control documents. My earlier comments in this behalf apply equally to this letter. [109] In

summary on this issue, I am satisfied that, redacted as per the Crown’s proposals, the probative value of the Mills lettersoutweighs any prejudicial effect they may have; hence, they are admissible. Graffiti [110] The Crown also seeks to adduce evidence of certain graffiti found in two locations. [111] The first instance upon which the Crown wishes to rely is the words “M.O.B. Klick” that are scratched into a wall in thewashroom of an establishment known as the Town Talk Restaurant and Bar, situate on Vaughan Road in Toronto, within the area said tobe controlled by M.O.B. Klick.

Inasmuch as someone took the trouble to scrawl the graffiti on the wall, it is a piece of physical evidencethat has some limited circumstantial value in terms of demonstrating that M.O.B. Klick in fact exists. [112] The second instance is the same name scrawled on the wall of a washroom at the courthouse at 1000 Finch Ave. West inToronto. That courthouse is where criminal charges laid by officers of 13 Division of the TPS are initially returnable. The territory ofM.O.B. Klick is said to be within 13 Division.

Therefore, the graffiti has the same potential probative value as that found in therestaurant. [113] Defence counsel complain that it will prejudice their respective clients because their preliminary inquiry was held at 1000 FinchAve. West. I disagree. Provided that the jury is instructed that, in the absence of any evidence linking either of the accused to the creationof the graffiti, the most it can tend to prove is the existence of the gang and not membership of either accused in the gang, I can see noprejudice. [114] Mr.

Rodocker argues that the graffiti is not admissible because there is no evidence as to when the graffiti was created. Heargues that, for the graffiti to be admissible, it must first be shown that the time it was created “relates to the time of the offence.”

[115] In a similar vein, Ms. Gadhia argues that the graffiti is not admissible because the author is unknown. [116] These arguments are ill conceived. The object of introducing the graffiti is as some circumstantial evidence of the existence ofM.O.B. Klick. In this case, the mere presence of the graffiti is a circumstance from which, taken together with other evidence, theexistence of the gang can be inferred.

Proof of authorship is not a necessary condition for the graffiti to have probative value in thatregard, nor, at the risk of stating the obvious, is proof that the graffiti was created at the same time as the offences here charged tookplace. With respect, these arguments are tantamount to saying that hieroglyphics amount to no evidence of the existence of ancientEgyptian civilization because there is no evidence to establish precisely when any particular example was created or by whom. [117] Mr.

Rodocker also complained that the photograph showing the graffiti in the courthouse washroom is of a very poor quality.Provided, however, that someone can attest to having seen what the photograph purports to depict, any inadequacy in the photograph is amatter going to weight and not admissibility. [118] Both of the above mentioned instances of graffiti are admissible. [119] The Crown also sought to adduce evidence of a bed sheet seized from a custodial facility in which Floyd Francois was aninmate and documents seized from a cell occupied by Francois.

Both the bed sheet and the documents were said to have graffiti on themsuggesting the existence of M.O.B. Klick. The documents had some writing to the same effect. [120] The bed sheet was originally said to have been seized from a cell occupied by Francois, but later the Crown advised that thesheet was seized from a common range to which many prisoners had access. As with the graffiti in the restaurant and courthouse, it wasnot absolutely necessary to prove that Francois possessed the bed sheet or the documents for them to have some probative value inestablishing the existence of the gang. However, (

i) given the change in the Crown’s position in the latter stages of this application andthe lack of opportunity for the defence to prepare a cogent response, and (ii) the limited probative value of the items, especially whenmeasured against considerable other evidence pointing toward the existence of the gang, I exercised my discretion to exclude them. Video Evidence Proffered by the Crown [121] In the course of their investigation, the police downloaded from the Internet, specifically YouTube, more than 70 videosdepicting M.O.B. Klick. Of those, the Crown initially sought to play ten videos for the jury.

After considering the matter, I indicatedthat I was prepared to allow some, but not all, of the proposed videos to go before the jury. That decision was predicated not on lack ofrelevance or the potential prejudice of any particular video, but, rather, solely on my concern for the cumulative effect of the number ofvideos the Crown proposed to adduce. I gave the Crown an opportunity to reassess which videos would be the most probative of theexistence and nature of M.O.B. Klick, as well as the membership of the accused in it. In response, the Crown reduced the number ofvideos it sought to adduce to six.

I then heard further argument as to whether any of the reduced number should go to the jury and, if so,which ones. [122] Mr. Rodocker conceded that the videos have some probative value, but argued that the prejudicial impact of the videos is“overwhelming”. For her part, while agreeing with Mr. Rodocker that the videos are highly prejudicial, Ms. Gadhia argued that thevideos have no probative value.

I disagree. [123] As for probative value, in my view, all the videos are, in varying measure, probative of the existence and nature of M.O.B.Klick and the accused’s membership in it. [124] As for potential prejudice, the imagery includes weapons and hand gestures reflecting the use of weapons. The lyrics frequentlyconcern drug dealing and violence. To say, then, that in the mind of any right thinking person the videos are unbecoming the accused isto state the obvious. To say that they are prejudicial is, however, another matter.

As noted above, the essence of the Crown’s case is thatthis murder was driven by gang rivalry and, more specifically, by a desire to avenge the death of a M.O.B. Klick member at the hands ofan EWC member. Moreover, to prove first degree murder against Mills, the Crown must prove that he killed Celise in association with,or for the benefit of, a criminal organization. [125] In these videos, the accused are heard repeatedly exalting the sale of cocaine.

On the one hand, quite obviously, the jury is aptto find that the accused, inasmuch as they repeatedly sing the praises of this pernicious activity, are persons of low moral character. Thatwill certainly not assist them in their defence. On the other hand, one of the core businesses of street gangs is the sale of illegal narcotics.Therefore, the audio and visual proof that the accused purport to sell drugs for M.O.B. Klick is highly probative of the Crown’scontention that M.O.B.

Klick is a criminal organization and that the accused are members of it. [126] As for violence, the accused repeatedly refer to carrying and using firearms. Again, the videos are damaging to the accused.However, Backus will say that the possession of firearms is a central part of gang life, enabling the gang to instill fear in persons withinwhat they consider to be their turf and, most importantly, perhaps, potential competitors in the form of rival gangs. [127] There are very few Canadian authorities on point. [128] In R. v. Alvarez, (ON SC), [2009] O.J.

No. 3825 (S.C.J.), Molloy J. dismissed a defence application to setaside an authorization to intercept private communications where the authorizing judge relied, in part, on a video available on YouTubeentitled “Rapsheet” that, according to the police, portrayed members of a Toronto gang known as the Doomztown Crips brandishinghandguns and boasting of their criminal activities. In R. v. Willis, 2007 ONCJ 605, [2007] O.J. No. 5691, Pringle J. considered the samevideo, Rapsheet, as did Watson J. in R. v. Argueta, 2011 ONCJ 576, [2011] O.J. No. 5195.

These cases are of no utility on the issuebefore me, however, because in none of them was the court obliged to consider the impact of the video on a jury. [129] In R. v. D.S., 2010 ONSC 7254, [2010] O.J. No. 5747, A. O’Marra J. held that a video could be introduced at the instance ofthe accused to show, in aid of a defence of self-defence, that the deceased was a member of a street gang.

O’Marra J. refused theapplication to play the video on the basis that “[t]he music with violent gang/rap lyrics playing throughout video has little probativevalue and great prejudicial effect.” He held, however, that certain individual photographs were potentially relevant and probative to

confirm the involvement of others with EWC. [130] Given the paucity of Canadian authorities dealing with the introduction of video evidence in cases involving street gangs, Iconsulted various authorities from other jurisdictions, mainly the United States. Before discussing some of those cases, I wish to makethree initial points. [131] First, I appreciate that one must be careful in applying American jurisprudence to Canadian situations: R. v. Rahey, (SCC), [1987] 1 S.C.R. 588, at p. 639; R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697, at p. 740.

Although Rahey andKeegstra dealt with the applicability of American constitutional jurisprudence in the Charter context, caution is also required when, ashere, considering the admissibility of evidence. That is so because, whereas in this country admissibility is governed by the commonlaw, in the United States it is, for the most part, governed by statute. [132] With that caution in mind, I note that in People v. Narciso Torres, 2012 Cal. App. Unpub. LEXIS 2714, at pp. 13-14, the Court of Appeal of California (4th App.

Dist.) pointed out that the prejudice s. 352 of the California Evidence Code is designed to avoid is “notthe prejudice or damage to a defense that naturally flows from relevant, highly probative evidence” (citations omitted in the original),but, rather, the misuse of information for an illegitimate purpose based on the jurors’ emotional reaction to that information. For astatement of the same principle in the Canadian context, see B. (L.), where at pp. 46-47, speaking for the court, Charron J.A. stated: It is important to define what is meant by prejudice in this context.

In its widest sense, any evidence that tends to prove guilt can be saidto be prejudicial to the accused since it is detrimental to his or her position. Obviously that is not the kind of prejudice that calls forspecial evidentiary rules. Professor Delisle defines the meaning of prejudice in this context succinctly as follows: Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidencemight be improperly used by the trier of fact.

It is one thing for evidence to operate unfortunately for an accused but it is quite anothermatter for the evidence to operate unfairly. The trier who learns of the accused's previous misconduct may view the accused as a badman, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presentlymarshalled against him.

Comparing the definition set out in Narciso Torres and the other American cases I have considered to the aforementioned passages fromB. (L.), I am confident that the meaning the American authorities ascribe to “prejudice” in this context is, for all intents and purposes, thesame as the definition employed in this country.

That said, because the provisions of the various Evidence Codes closely mirrorCanadian common law in this respect, I am confident that the American authorities to which I refer below are useful comparators inweighing the probative value of the evidence proffered in the case at bar against its potential prejudice.[19] [133] Second, where I have cited cases decided in American federal courts, one must bear in mind that the review of state appellatedecisions by federal courts turns on the right of due process guaranteed to defendants by the Fourteenth Amendment to the United StatesConstitution, which has, quite obviously, no application to the instant case.

Accordingly, I have only cited cases in which the reviewingfederal court has expressly approved of the decision in the court(

s) below, where, as noted above, the considerations governing theadmissibility of evidence are effectively the same as in Canada. [134] Third, some of the cases to which I refer are “unpublished”.[20] [135] Bearing those caveats in mind, I propose to examine the response of some of the American authorities to the argumentsadvanced by counsel in the case at bar. [136] Defence counsel argue that the videos proposed for admission in this case are of limited probative value and such value as theymight have is eclipsed by what counsel contend is the profound prejudicial effect they will have on the jury.

With one exception, towhich I will momentarily refer, faced with comparable video evidence, American courts, at least in the cases I have reviewed, by andlarge do not support this view. [137] The exception is Commonwealth v. Gray, 436 Mass. 731. In Gray, the appellant was convicted of first degree murder. Oneground of appeal was that the trial court erred in admitting a rap video that depicted the appellant, along with others, wearing “‘gangsta’clothing” with bandanas over their faces.

The Supreme Judicial Court of Massachusetts described the video as being “replete with wordsand images that appear[ed] to glorify violence (‘we have pills, perps, pistols and powder. It’s a P-Thang’)” (at p. 744).

The courtacknowledged, at p. 752, that “[i]n the circumstances of an apparently random shooting on a public sidewalk, evidence of the feudbetween H-Block and Heath Street, and of the defendant’s membership in Heath Street, was relevant to provide a reason for an otherwiseinexplicable killing.” Nonetheless, the court reversed the conviction because it considered that the prejudicial effect of the videooutweighed its probative value.

It is important to note, however, that Gray had not otherwise contested that he was a gang member and,although he had not formally done so, he had offered to stipulate at trial that he was member of the gang in question, such that theprobative value of the video was greatly reduced.

No such offer, much less a formal admission, has been made in the case at bar. [138] In Narciso Torres, at p. 12, the court agreed with the appellant’s submission that a YouTube video introduced at his trialportrayed members of the gang to which he was said to belong as “violent, dangerous, misogynistic, and crude” and tended to show thatthey intended to kill others.

Nonetheless, the court upheld the conviction on the basis that “the probative value of the video was verystrong”, because it established a clear motive for the appellant to commit the crime and because it provided “compelling evidence thatthe crimes were gang-related.” The court held that, because a motive is ordinarily the incentive for criminal behaviour, generallyspeaking the probative value of evidence of motive will outweigh any attendant prejudice. [139] In People v. Panfilo Torres, 2012 Cal. App. Unpub. LEXIS 6236, the appellants appealed their convictions for murder andassault with a firearm.

The Court of Appeal of California (3rd App. Dist.) upheld the admission of three videos in the trial of theappellants on charges of having committed murder for the benefit of a criminal street gang. One video showed a gang fight taking placeamong a number of women while a group of men stood by making gang hand signs; a codefendant displayed a gun. The second videoshowed a number of men making gang hand signs, break dancing and swearing. Two men in that video were displaying guns. The third

video included a codefendant, who was seen to be carrying a handgun. In that video, men were dancing to rap music, showing their tattoos, drinking beer and flashing hand signs. The court held that inasmuch as they demonstrated that the men used common identifying symbols, wore gang attire and used a common slang, the videos were probative of the existence of the gang in question and the fact that it consisted of at least three people, as the California statute [21] requires in order for a group to constitute a criminal street gang. [ 140 ] In U.S. v. Mejia (2008), 280 Fed.

Appx. 32 (U.S.C.A. 2 nd Circ.), an appeal from convictions for murder and conspiracy to commit murder, both in aid of racketeering, the court upheld the trial judge’s decision to admit a video tape of members of a gang known as MS-13 attending a wake for a deceased gang member.

Despite the appellant’s complaint that the prejudicial impact of the tape “far outweighed” its probative value, the court held, at p. 33: The significant probative value of this videotape is clear: it confirmed the existence of the MS-13 gang and corroborated the testimony of the government’s expert witness with respect to the gang’s practices and conduct. This evidence went directly to the issue of whether Mejia’s criminal conduct was related to a racketeering enterprise. [ 141 ] In White v. Texas , 2011 Tex. App. LEXIS 8118 (not designated for publication), the appellant had been convicted of murder.

It was alleged that the appellant was a member of a street gang called “Hated By Many” (“HBM”). The trial judge admitted two videos. The first, a surveillance video from a local hospital, showed the appellant and other HBM members assaulting an individual (not the victim of the murder) at the hospital. The second was a YouTube video which showed the appellant and other members of HBM “throwing gang signs”, holding AK-47s and MAC-10s, and tagging property with graffiti.

The Court of Appeals of Texas (8 th Dist.) upheld the trial judge’s decision on the basis that the video evidence “strongly tended to prove” that the appellant acted with “intent to participate in a criminal street gang” (at pp. 25-26). As in the case at bar, at least as it relates to Mr. Mills, that was one of the elements the prosecution in White had to establish to prove two of the counts charged. [ 142 ] In Marroquin v. Uribe , 2010 U.S. Dist. LEXIS 23984, the defendant was convicted of robbery for the benefit of a criminal street gang.

The trial court admitted a video that the defendant complained portrayed him as a “violent and contemptible gang leader” and was “laden with gang lingo, slang, and screaming.” On reviewing the decision on constitutional grounds, the District Court expressly approved of the California Court of Appeal’s decision that the video was admissible to show motive for the crime. [ 143 ] In People v. Mireles , 2008 WL 588937 (unpublished), the California Court of Appeal (2 nd App.

Dist.) upheld the appellant’s convictions for first degree murder and discharging a firearm, both for the benefit of and in association with a criminal street gang. The appellant argued that the trial court had erred by admitting a portion of a National Geographic program concerning the Mara Salvatrucha (“MS”) gang that had previously aired on national television. A police gang expert testified that he could identify the appellant on the video.

The video was played for the jury with the voice-over narrative deleted, but leaving in certain things said by gang members, including the person identified by the police officer as the appellant.

The court held that the video was properly admitted because certain admissions by the appellant were “highly relevant” because they “not only showed [the] appellant’s adherence to the gang’s territory but also included direct evidence that [the] appellant possessed the intent necessary to render him an aider-abetter [ sic ] and principal to the murder.” The court went on to say that the video was prejudicial “only in respect of establishing facts and elements of an admittedly violent case” and did not “gratuitously elicit a bias against [the] appellant, unconnected to his acts” (at p. 5). [ 144 ] In Carrillo v.

Gonzalez , 2010 U.S. Dist. LEXIS 48463, the trial court admitted what was referred to as “a general Colonia video” by a rapper known to make videos for a particular street gang, the “Colonia Chiques”. The video depicted a number of tattooed members of the gang making gang signs, talking about guns and simulating different types of crimes they commit with firearms. The petitioner was not involved in the video.

The United States District Court for the Central District of California expressly agreed with both the trial and appellate courts that the video was relevant to show the existence of the Colonia Chiques as a criminal street gang. [ 145 ] In R. v. O. , [2010] EWCA Crim 2985, the appellant was convicted of possessing a firearm and possessing ammunition, each count alleging an intent to endanger life, contrary to s. 16 of the Firearms Act , 1968. The trial judge admitted a music video downloaded from YouTube.

A local police officer, “with knowledge of the area and possible insight as to street language but [who] was not put forward as an expert and [who] denied being one”, [22] identified the appellant as being the main person depicted in the video (at para. 10).

The officer testified that the purpose of a gang making such a video and of posting it on YouTube was to incite violence among gangs and explained her understanding of certain phrases and lyrics in the video, including the terms “Mack” and “Nine”, which were slang for firearm. [ 146 ] The English Court of Appeal (Criminal Division), at paragraph 17, considered that “[it was] plain … that the video was left to the jury as a matter going to a disposition or propensity of the appellant as a gang member to use gun violence for the purposes of endangering life.

Therefore, if that evidence was accepted on that basis, it would have made it more likely that the appellant was guilty of the offence of possessing the weapon with the intent alleged.” [ 147 ] The court upheld the trial judge’s decision, on the basis that “the judge was entitled to admit this evidence at any rate under gateway (d).” (Gateway (

d) provides for admission of evidence where “it is relevant to an important matter in issue between the defendant and the prosecution.” [23] ) The court held that the evidence was “relevant to the important matter in issue of whether the gun found at his feet but not mentioned to the taxi driver was in his possession with the intent to endanger life.” Although the court found that the trial judge did not advert to s. 101(3) of the Criminal Justice Act , [24] as he was obliged to do, the court considered that it was harmless error inasmuch as, “prejudicial as such evidence necessarily is, it would not have such an adverse effect on the fairness of the proceedings that the court ought not to admit it” (at paras. 21-26). [ 148 ] The obvious differences between English and Canadian evidentiary law cause me to consider this case with some caution.

Nonetheless, despite those differences, I find that the case is useful in the limited sense that it confirms my opinion that a properly instructed jury can make proper use of evidence of this nature without it overcoming their ability to decide the case in a reasoned and dispassionate manner. [ 149 ] As well as being probative of both motive and an essential element of s. 231(6.1) , the videos are also probative in two other ways.

[ 150 ] First, the videos provide support for the identification evidence of the eye witness to the shooting, Vernon Flavius. To the extent that the videos associate the accused with M.O.B. Klick, they will tend to enhance Flavius’ identification of Mills as the man who shot Celise and Williams as his accomplice. See People v. Ross , 2012 Cal. App. Unpub. LEXIS 8431, where the California Court of Appeal (2 nd App.

Dist.) held that, as well as being relevant to motive, a video demonstrating the appellant’s membership in the Lynwood Neighborhood Crips was “also relevant to corroborate [the witnesses’] identification of [the] defendant” (at p. 60). In that case, in fairness, this secondary relevance was more compelling because the State’s witnesses actually first identified the defendant from the YouTube video. [ 151 ] In this case, the shooting occurred in M.O.B.

Klick territory and appears to have been the result of the shooter and his companion taking issue with the fact that the deceased was wearing a blue bandana in an area controlled by a Blood-affiliated gang. That said, the fact that the videos portray the accused as being members of M.O.B. Klick tends, albeit to a lesser degree than in Ross , to support circumstantially what I understand will be Flavius’ identification of Mr. Mills as the shooter and Mr. Williams as his accomplice. [ 152 ] Second, the proffered videos are also probative in that they tend to support the evidence of Det.

Backus. [ 153 ] In Mejia , court held that it was “clear” that the video tape introduced by the prosecution had “significant probative value” because “it confirmed the existence of the MS-13 gang and corroborated the testimony of the government’s expert witness with respect to the gang’s practices and conduct” (emphasis added). Likewise, in Panfilo Torres , the court noted the trial judge’s finding that “the videos would support expert testimony” in several respects (at pp. 20-21). See also R. v. O. [ 154 ] In the case at bar, it must be remembered, the defence takes strenuous issue with Det. Backus’ expertise.

In light of the position taken by both accused respecting what they contend is Backus’ lack of proper qualification, it should be open to the prosecution, in my view, to support Backus’ testimony by visually depicting the actual phenomena that Backus asserts suggest the existence of a street gang and, further, to depict the defendants engaging in behaviour that Backus will say typifies membership in such a gang. [ 155 ] Defence counsel further assert that the prejudice of the proposed evidence is so grave that no judicial instruction can offset the damage. Again, I disagree. [ 156 ] In People v.

Carrillo , 2008 Cal. App. Unpub. LEXIS 2882, the appellant appealed his conviction for murder and discharging a firearm, both for the benefit of a criminal street gang. A music video entitled “Gangsta Games” was introduced by the prosecution to prove that the gang qualified as a criminal street gang. [25] In dismissing the appellant’s claim that the video was unduly prejudicial, the Court of Appeal of California (2 nd App. Dist.) referred to the trial judge’s observation that “ unless the jurors are properly instructed , … [the video] could be quite prejudicial” (at p. 8; emphasis added). [ 157 ] In Carrillo v.

Gonzalez , the United States District Court agreed with the courts below that a limiting instruction would suffice to overcome any prejudice the video in that case might engender. [ 158 ] In Panfilo Torres , at p. 23, the appellate court noted that the trial judge “solicited a draft limiting instruction from each of the defendants, suggesting an appropriate manner in which the jury could consider the [video] evidence”, but went on to note that no such instruction appeared in the record.

I take from those comments, and the fact that the appeal was dismissed despite the apparent absence of a limiting instruction, that the court was of the view that any prejudice that might arise from the introduction of the video evidence was certainly capable of being overcome by appropriate instruction. [ 159 ] In White , at p. 26, the appellate court held that “any potential to create undue prejudice would have been counteracted by the trial court’s limiting instruction”. [ 160 ] In Mejia , at p. 33, the court expressed the following view of the efficacy of instruction in overcoming possible prejudice: Balanced against this substantial probative value is the danger that the videotape of a young man’s wake – possibly the result of gang violence – would unfairly prejudice the jury against Mejia.

We find this risk of unfair prejudice vanishingly small, particularly in light of the District Court’s limiting instructions , and see no abuse of discretion in the Court’s decision to admit the evidence. [Emphasi

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