M. Misener

The Crown applied under section 123 of the Youth Criminal Justice Act for access to youth records of A.B., who was convicted of a gang-related assault in 2007.

The Crown sought to use these records to assist its expert witness in establishing that the accused in a 2010 murder case were associated with gang members who committed gang offences in rival gang territory.

The application was dismissed.

The court found that access to A.B.'s records was not necessary for the proper administration of justice, as the Crown had access to records of adult co-offenders from the same incident.

The temporal remoteness of the 2007 assault to the 2010 murder, combined with minimal evidence of A.B.'s continuing gang involvement or connection to the accused, rendered the records insufficiently probative.

The court also found that A.B.'s privacy interests outweighed the Crown's interest in the records.

In a joint first‑degree murder trial arising from a gang‑related shooting, the court considered whether the accused had put his character in issue through testimony denying gang affiliation and explaining incriminating letters written while in custody.

The court held that the accused’s narrative about his upbringing and alleged reluctance to join a gang implicitly asserted good character and therefore opened the door to cross‑examination on prior criminal conduct and gang‑related activity.

The court also ruled that certain previously redacted portions of letters written by the accused from custody could be admitted after reconsideration of a pre‑trial ruling, because the accused’s testimony materially altered the probative value of the evidence and risked misleading the jury.

The court concluded that the probative value of the additional passages outweighed their prejudicial effect and that severance of the co‑accused was not required.

The accused, Jermaine Gager, brought an application for a mistrial during his joint trial for first-degree murder with co-accused Corey Smelie.

The application was based on the closing address of counsel for the co-accused, who improperly commented on his client's failure to testify and suggested he was afraid of retribution from the moving party.

The court found the remarks were improper but concluded that the resulting prejudice was not irremediable.

The court dismissed the mistrial application, holding that a specific curative instruction to the jury would be sufficient to ensure trial fairness.

In a first degree murder prosecution involving alleged gang rivalry, the accused applied to qualify a sociologist as an expert witness on street gangs.

The Crown opposed the qualification, arguing that the proposed expert lacked sufficient knowledge of the specific Toronto gangs at issue and that aspects of his methodology and impartiality were problematic.

The court conducted the two‑stage admissibility analysis for expert evidence under Mohan and Abbey, expressing significant concerns about the expert’s methodology, potential bias, inflated data samples, and limited familiarity with Toronto gangs.

Despite these reservations, the court held that the threshold for excluding defence expert evidence was not met and qualified the witness as an expert in limited areas relating to gang culture and behaviour.

The court then set detailed restrictions on the permissible scope of the expert’s testimony, particularly preventing opinions that would approach the ultimate issue of gang membership.

In a first-degree murder trial involving alleged street gang members, the Crown applied to qualify a police detective as an expert on Toronto street gangs.

The defence brought parallel applications seeking further disclosure of police records, including confidential informant databases, debriefing notes, training presentations, and wiretap intercepts from other investigations.

The court ordered redacted disclosure of the debriefing notes and presentations but denied access to the informant database and the massive wiretap files, finding the latter to be third-party records that did not meet the threshold for likely relevance.

The court qualified the detective as an expert but strictly limited the scope of his permissible opinion evidence to prevent him from usurping the jury's fact-finding function, particularly regarding whether specific individuals were gang members or whether a 'gang war' existed.