COURT OF APPEAL FOR ONTARIO DATE: 20200513 DOCKET: C63419

Strathy C.J.O., Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Thanh Tung Phan Appellant

Counsel: James Lockyer and Craig Zeeh, for the appellant Frank Au and Gerald Brienza, for the respondent

Heard: March 3, 2020

On appeal from the conviction entered on February 7, 2017 by Justice Brian O’Marra of the Superior Court of Justice, sitting with a jury.

Strathy C.J.O.:

A. OVERVIEW

[1] The appellant appeals his conviction for first-degree murder of Peter Nguyen. On February 4, 2012, two men shot Mr. Nguyen as he left the Wildfire Restaurant on Yonge Street in Toronto, after dinner with his girlfriend. The gunmen then jumped into a black Mercedes SUV, which sped from the scene.

[2] The appellant was the owner of the Mercedes. Coincidentally, police had been surveilling him as part of an investigation into drug trafficking. They had followed the Mercedes to Yonge Street, where they saw it park near the restaurant. They watched and waited. They became eye witnesses to Mr. Nguyen’s assassination.

[3] The Crown alleged that the appellant was the driver of the Mercedes and that he participated in the murder by locating the victim, alerting the killers to his departure from the restaurant, and facilitating their escape by driving the getaway car.

[4] The principal issue at trial was whether the appellant was the driver of the Mercedes. The jury did not have reasonable doubt on that issue.

[5] Mr. Phan’s appeal rests on two grounds. First, he asserts that the trial judge erred in his disposition of a Garofoli application: R. v. Garofoli, [1990] 2 S.C.R. 1421; second, he contends that the trial judge erred in admitting evidence of a history of violence between two gangs that the appellant and the deceased were alleged to be associated with, as the prejudicial effect outweighed the probative value.

[6] For reasons that follow, I find no error in the Garofoli ruling. I also find no error in the admission of evidence related to the history of violence. Accordingly, I would dismiss the appeal.

B. BACKGROUND

[7] I will begin by setting out some of the background facts. First, the facts relating to the judicial authorization; second, the facts relating to the surveillance of the appellant’s vehicle on the day of the shooting; and third, the appellant’s alleged gang affiliation. I will add additional detail when considering each ground of appeal.

(1) The Authorization

[8] On January 14, 2014, as part of a large-scale drug investigation into the activities of individuals including the appellant, Durham Regional Police obtained an authorization to intercept the appellant’s telephone communications pursuant to ss. 185 and 186 of the Criminal Code, R.S.C., 1985, c. C-46, and an authorization under s. 492.1(1) of the Criminal Code to install a tracking device on the appellant’s Mercedes.

[9] This authorization was the subject of a Garofoli application at the appellant’s trial. The appellant argued at trial that: (a) the authorization should be set aside because the affiant of the ITO deliberately deceived the authorizing justice; (b) he should be permitted to cross-examine the affiant and sub-affiants; and (c) he was entitled to disclosure of video evidence concerning a third party. The trial judge excised some portions of the ITO and permitted some cross-examination of the affiant but dismissed the other requests. The trial judge’s ruling on these matters is the subject of the first ground of appeal.

(2) Surveillance of the Appellant and the Shooting

[10] Pursuant to the authorization, police conducted surveillance of the appellant’s activities by placing an electronic tracking device on his Mercedes. They also intercepted some of his telephone communications.

[11] On January 22, 2014, police officers following the appellant observed him at a “SpyTech” store on Yonge Street. They later determined that he had purchased an electronic tracking device. They also subsequently intercepted a call between the appellant and a GPS service, seeking to purchase an upgraded tracking plan to enable him to more closely monitor the movements of his target. His target turned out to be the deceased’s girlfriend, Andrea Villareal.

[12] On the evening of the killing, February 4, 2014, police had followed the appellant’s Mercedes to Yonge Street, near the Wildfire Restaurant. About 90 minutes before the shooting, they observed the driver of the Mercedes get out of his vehicle, walk to Ms. Villareal’s BMW, which was parked nearby, kneel down and remove something from underneath. That “something” was later identified as the tracking device the appellant had purchased at “SpyTech”.

[13] The driver returned to the Mercedes and waited. Around 9:20 p.m., just as Mr. Nguyen and Ms. Villareal were leaving the restaurant, the officers saw the lights of the Mercedes turn on. The Crown alleged that this was a signal from the driver to the gunmen that it was time to act. As Mr. Nguyen and Ms. Villareal left the restaurant and walked towards her BMW, two men approached them and began shooting at Mr. Nguyen, who fell to the ground while the shooting continued. Mr. Nguyen died of multiple gunshot wounds. Ms. Villareal was not hit.

[14] The gunmen fled on foot. After a short distance, they got into the Mercedes, which stopped to pick them up and then sped from the scene. The gunmen were never identified or apprehended.

[15] Two police officers who had been conducting surveillance while the Mercedes was parked near the restaurant identified the appellant as the driver of the Mercedes.

(3) The Gang Evidence

[16] The Crown brought an application at trial to adduce evidence of a history of violent acts between two gangs: the “Chin Pac”, with which the appellant was alleged to be associated, and the “Asian Assassinz”, alleged to be a rival gang to which the deceased belonged. The evidence established connections between the appellant and other Chin Pac members, including his brother, Jerry Phan. It also chronicled a series of violent acts involving the gangs, including the shooting and wounding of Jerry Phan on January 1, 2013 and May 11, 2013, as well as his eventual fatal shooting on November 3, 2014, after the killing of Mr. Nguyen.

[17] The Crown contended that the gang evidence was admissible to establish that the appellant had a motive to participate in Mr. Nguyen’s killing. The Crown proposed to adduce the evidence through the testimony of police officers who were aware of the gang associations and of the specific acts of violence. The trial judge encouraged the Crown to adduce the evidence through a statement of facts not contested and this, in fact, took place.

[18] The trial judge’s admission of this evidence is the basis for the second ground of appeal.

C. ANALYSIS

(1) The Judicial Authorization

(a) Background

[19] The appellant claims that the affiant of the ITO deceived the authorizing justice and withheld information from him. He also argues that the trial judge should have excluded the evidentiary fruits of the judicial authorization, including all the evidence obtained by surveillance of the appellant, which would have eviscerated the Crown’s case.

[20] The judicial authorization, as it related to the appellant, came about in the following way. In December 2013, members of the Durham Regional Police Gun and Gang Enforcement Unit were conducting a large-scale drug investigation. Shawn Hussain was one of the targets of that investigation. On December 19, 2014, the police followed him to Cumberland Avenue in the Yorkville area of Toronto. Officers observed Mr. Hussain getting out of his car carrying a back pack and apparently talking on his phone as he paced up and down the street. Mr. Hussain got into the passenger seat of a black Mercedes SUV, later discovered to be registered to the appellant. About 20 seconds later, Mr. Hussain left the Mercedes and returned to his own car. Two officers conducting surveillance asserted that when Mr. Hussain got out of the Mercedes, he was carrying a different bag, rather than the back pack.

[21] After Mr. Hussain left the area, police followed the appellant’s car to an apartment building on Broadview Avenue, where they observed it enter the underground parking lot. They later discovered that the appellant lived in the building and the Mercedes was parked in his spot. Later that day, police followed the appellant in Toronto and to Brantford, Ontario, where he engaged in activities that they considered indicative of drug trafficking.

(b) The ITO and the Affiant’s Evidence

[22] The appellant’s core submission in relation to the judicial authorization is that the affiant of the ITO, D.C. Nathan Campbell, deliberately misled the authorizing justice and colluded with sub-affiants, creating the impression that the officers conducting the surveillance had actually seen the appellant engage in a drug transaction with Mr. Hussain. In fact, they had only observed Mr. Hussain get into and out of the appellant’s Mercedes, and they never actually saw the appellant in the vehicle. While officers later observed the Mercedes parked in the appellant’s spot at his apartment building, and still later observed the appellant get out of his car after following it to other locations, the appellant says they painted a misleading picture, if not outright lied, to make the case for authorization appear stronger than it was.

[23] D.C. Campbell based his statements in the ITO on two reports. One was a surveillance report prepared by D.C. Hilborn, the central note-taker for the five-member surveillance team on December 19, 2013. His report included the statement that the appellant “did a bag exchange” with Mr. Hussain. The other was an investigative report prepared by D.C. Capener, a member of the surveillance team. D.C. Capener stated in his report that he was conducting surveillance on Mr. Hussain “when he met with an Asian male”, later identified as the appellant.

[24] Based on this information, D.C. Campbell stated in the ITO:

I believe that association between HUSSAIN with PHAN … is for the sole purpose of drug trafficking and that they are all part of this drug trafficking network.

I believe that this meeting between HUSSAIN and PHAN was indicative of a drug transaction. This appeared to be a prearranged meeting that lasted for a very short period of time. The surveillance team also observed an exchange of bags between HUSSAIN and PHAN.

Thanh Tung PHAN has been identified as an associate of Shawn HUSSAIN. This has been established through surveillance. HUSSAIN and THANH were observed during surveillance conducting a clandestine meeting that lasted for a short duration of time. During this meeting HUSSAIN and PHAN conducted a bag exchange. I believe that this meeting was indicative of a drug transaction. I also believe that PHAN supplied drugs to HUSSAIN during this meeting. Through further surveillance conducted on PHAN he was observed conducting activity which I believe was indicative of drug trafficking. [Emphasis added]

[25] The trial judge granted the appellant leave to cross-examine D.C. Campbell on aspects of his affidavit, discussed below. The appellant claims that he erred in refusing to grant leave to cross-examine the sub-affiants.

(c) Disclosure: the video surveillance of Mr. Hussain

[26] The appellant also sought disclosure of video surveillance of Mr. Hussain at an apartment building located on Fort York Boulevard in Toronto.

[27] The issue arose in the following way. D.C. Hilborn’s surveillance report for December 19, 2014 described Mr. Hussain as leaving his own car with a “large school bag (black)”, getting into the appellant’s car, and shortly thereafter emerging with a “larger black bag”. D.C. Capener’s surveillance notes described the first bag as flat and empty, with zippers on the side, and the second bag as being a “different shape” with “zippers all over top”.

[28] D.C. Campbell included a photograph in the ITO, showing Mr. Hussain carrying a back pack two weeks earlier on December 4, 2013. In describing the “bag exchange” at the appellant’s car on December 19, 2013, D.C. Campbell said that “HUSSAIN has also been observed on a number of occasions, through surveillance and security videos to be in possession of a back pack … I believe HUSSAIN uses this back pack as a means to transport items that relate to drug trafficking”.

[29] After the meeting at the appellant’s car on December 19, 2013, the police tracked Mr. Hussain’s vehicle to a condominium tower on Fort York Boulevard in Toronto. Police subsequently obtained video evidence of Mr. Hussain at that location, but D.C. Campbell testified on his cross-examination that he did not review the video to determine whether Mr. Hussain was carrying a back pack or the more elaborate bag with zippers on the top, described by D.C. Capener.

[30] During the Garofoli application, the appellant requested disclosure of video recordings obtained by police from cameras at the Fort York Boulevard location, which would have captured Mr. Hussain’s movements on December 19, 2013. He argued then, as he does now, that if the video recordings showed the appellant carrying a plain back pack, rather than the zippered bag described by D.C. Capener, it would undermine D.C. Capener’s credibility with respect to the bag exchange. This request went hand-in-hand with the appellant’s request to cross-examine the sub-affiants, D.C. Capener and D.C. Hilborn, concerning the bag exchange. The trial judge rejected both requests.

(d) The Trial Judge’s Reasons ([R. v. Phan, 2017 ONSC 978](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc978/2017onsc978.html))

(i) Cross-Examination of the Affiant and Sub-Affiants

[31] The trial judge granted leave to cross-examine D.C. Campbell, the affiant of the ITO, applying the test in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 10, and the decision of this court in R. v. Green, 2015 ONCA 579, 337 O.A.C. 72. He limited the scope of the cross-examination to the basis of D.C. Campbell’s belief that the appellant was involved in a drug transaction with Mr. Hussain on Cumberland Avenue on December 19, 2013, for the purpose of establishing bad faith or negligence of the affiant. He declined to grant leave to cross-examine the sub-affiants, because the issues could be “fully and fairly” canvassed through D.C. Campbell’s examination.

(ii) Disclosure of Video Surveillance

[32] The trial judge refused the request for additional disclosure, including disclosure of the video of Mr. Hussain at Fort York Boulevard. Referring to R. v. McKenzie, 2016 ONSC 242, 26 C.R. (7th) 112, he observed, at para. 18, that “[o]nce the disclosure request reaches beyond materials placed before the authorizing justice and the contents of the investigative file, presumption of relevance is attenuated.” He added that in a case such as this, where the ITO has numerous targets, “the disclosure issues on the Garofoli hearing should focus on the information related specifically to the applicant and not the investigation at large.” The observations of Mr. Hussain at locations unrelated to the applicant were not relevant to the Garofoli hearing.

(iii) Reasonable and Probable Grounds

[33] The trial judge found that the ITO disclosed reasonable and probable grounds. In his written reasons, which were released after the cross-examination of D.C. Campbell, he noted the “narrow scope” of a Garofoli application, which focuses on the affiant’s “reasonable belief” in the requisite statutory grounds: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207. The trial judge framed the issue as whether the contents of the ITO “provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place”. Even where there has been material non-disclosure or misleading or false information presented in the ITO, the authorization is not automatically vitiated. Rather, these are factors to be considered and the “primary focus on review is whether the authorizing judge could have been satisfied that the order should issue.”

[34] The Crown conceded that the assertion that the appellant was actually seen interacting with Mr. Hussain was inaccurate and had to be excised from the ITO on review. The trial judge found D.C. Campbell’s cross-examination had exposed inaccuracies, informational gaps, and failures to follow up or seek corroboration on important issues. But the issue remained whether the affiant reasonably and honestly believed that a bag exchange had occurred between the appellant and Mr. Hussain, and whether there was a circumstantial basis on which the authorizing justice could have found that the appellant was involved in a drug transaction. He pointed out that “[t]he standard for naming a party on a Part VI [Criminal Code] application is far less than a balance of probabilities, let alone beyond a reasonable doubt” and that the standard could be met through circumstantial evidence.

[35] Ultimately, the trial judge admitted evidence derived from the tracking device and from surveillance footage of the appellant. Although the erroneous information about the appellant being observed in a bag exchange needed to be excised, there was sufficient evidence to conclude that the authorizing justice, acting judicially, could find reasonable and probable grounds to believe that an offence had been committed and that evidence of the offence would be found at the specified place.

[36] Even with the statement excised, there was sufficient circumstantial evidence to conclude that the appellant was in the vehicle when Mr. Hussain entered with a bag and quickly left, and that they likely engaged in a drug transaction. The trial judge reviewed the key circumstantial facts, at para. 37:

1. Hussain entered Phan’s vehicle with a bag at Cumberland and exited very shortly thereafter with a bag;
2. Phan’s vehicle was driven from Cumberland and parked at the parking spot reserved for Phan at his residence;
3. Phan was observed later in the day getting into and out of his car on more than one occasion; and
4. Nobody else was observed getting into or out of his car that day.

[37] Based on this evidence, the trial judge decided that the authorization was valid. However, the affiant should have said that he had concluded that the appellant was present during the bag exchange, rather than that the surveillance team had observed it.

(e) The Parties’ Submissions

(i) Appellant

[38] The appellant submits the trial judge erred in four respects:

1. refusing to exercise his discretion to set aside the authorization because D.C. Campbell, the affiant of the ITO, had deliberately deceived the authorizing justice;
2. refusing to permit cross-examination of the sub-affiants, particularly D.C. Hilborn and D.C. Capener, in order to enable the appellant to establish that they had conspired with D.C. Campbell to mislead the authorizing justice;
3. refusing to order production of video evidence of Mr. Hussain, which he says would have established that the sub-affiants’ description of Mr. Hussain’s bag was false, thereby undermining the claim that a drug transaction had taken place in the appellant’s Mercedes; and
4. concluding that the authorization could have been issued in the absence of a specific observation of the appellant on Cumberland Avenue.

[39] With respect to the first submission, the appellant characterizes D.C. Campbell’s actions as an example of “noble cause corruption” – perverting the course of justice in the pursuit of a cause perceived to be worthy. He says that D.C. Campbell, probably in conspiracy with the sub-affiants, bolstered the case set out in the ITO by making the evidence seem stronger than it actually was, by repeatedly describing a person-to-person meeting between the appellant and Mr. Hussain. He submits the trial judge failed to properly assess the evidence in order to determine whether deliberate deception had occurred.

[40] With respect to the second and third submissions, the appellant argues that cross-examination of the sub-affiants and disclosure of videos of Mr. Hussain at Fort York Boulevard could have undermined the affiant’s claim that there was a “bag exchange”, leading to a conclusion that all the officers had engaged in a scheme of deception. Disclosure of the surveillance evidence could have demonstrated the existence of such a scheme if it showed that Mr. Hussain still had his back pack with him at Fort York Boulevard after the alleged “bag exchange”.

[41] Finally, the appellant submits that the trial judge erred in concluding that the authorization could have issued in the absence of a specific and positive observation of the appellant on Cumberland Avenue. At the very least, he submits, had the improper statements been excised, the authorizing justice would have required that further inquiries be made to determine whether the appellant was actually involved.

(ii) Respondent

[42] The respondent submits that the trial judge did, in fact, address the issue of deliberate deception – he found that when D.C. Campbell swore the ITO, he reasonably believed that the appellant was present at a drug transaction with Mr. Hussain. This finding of fact was open to him. D.C. Campbell was entitled to rely on the investigative reports of members of the surveillance team and had no reason to doubt them.

[43] As to cross-examination of the sub-affiants, the issue was the honesty and reasonable belief of the affiant, not the ultimate truth of his statements overall: World Bank Group v. Wallace, at para. 119. The appellant has failed to demonstrate that there was a reasonable likelihood that cross-examination of the sub-affiants would reveal deception on the part of D.C. Campbell.

[44] The respondent submits that the request for additional disclosure was properly dismissed, as the appellant did not establish that there was a reasonable likelihood that the materials would be relevant to the Garofoli application.

(f) Analysis

[45] These grounds of appeal turn on well-settled principles of law set out in decisions of the Supreme Court of Canada, notably Garofoli, Pires; Lising, and World Bank.

[46] Before turning to each of these grounds, I make some general observations about the aspects of the Garofoli analysis that are at issue.

(i) The Challenge to the Judicial Authorization

[47] The Garofoli analysis determines the reasonableness of a search or other statutory investigative measure. That determination requires the statutory preconditions for the exercise of such measures to have been met: World Bank, at paras. 117-118. In essence, whether there were reasonable and probable grounds to believe that the measures would produce evidence concerning the particular offence.

[48] The challenge to the authorization in this case is a “sub-facial” challenge. The record before the authorizing justice was, on its face, sufficient to meet the statutory requirements, but the appellant asserted that the record did not accurately reflect what the affiant knew or ought to have known. If it had, he submits, the authorization would not have issued: see World Bank, at paras. 120-121.

[49] Typically, on a sub-facial challenge, the accused argues that misleading or inaccurate portions of the ITO must be excised, and the validity of the authorization is determined by what remains. The accused may also argue that “the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant”: R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d), at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 93.

[50] Due to the ex parte nature of applications for search warrants, wiretaps, and other investigative aids, the affiant of an ITO is required to make full and frank disclosure of material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. The affiant must not deceive the reader by making unsupportable conclusions or leaving out important qualifying information: R. v. Booth, 2019 ONCA 970, at para. 55. Furthermore, in Booth, at para. 56, this court clarified that the affiant’s duty of candour requires disclosure of all material information that:

(a) could undercut the probability that the alleged offence has been committed; (b) could undercut the probability that there is evidence to be found at the place of the search; and (c) that challenges the reliability and credibility of the information the affiant officer relies upon to establish grounds for the warrant.

[51] As the determination of whether the statutory conditions have been met focuses on the affiant’s reasonable belief, the Garofoli analysis does not determine whether the allegations in support of the authorization were ultimately true. It determines whether the affiant had “a reasonable belief in the existence of the requisite statutory grounds”: Pires; Lising, at para. 41. And this turns on what the affiant knew or ought to have known at the time the affidavit in support of the authorization was sworn. The parties agree that the applicable test is set out in World Bank, at paras. 122-3:

an error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it. Testing the affidavit against the ultimate truth rather than the affiant's reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent

When assessing a subfacial challenge, it is important to note that affiants may not ignore signs that other officers may be misleading them or omitting material information. However, if there is no indication that anything is amiss, they do not need to conduct their own investigation. [Citations omitted.]

[52] Typically, evidence that the affiant knew or ought to have known was false, inaccurate, or misleading will be “excised” from the ITO when determining whether it was lawfully issued. If there is additional evidence that the affiant knew or ought to have known was required for full and frank disclosure, it should be added back: World Bank, at para. 121; Booth, at para. 59.

[53] After excision and amplification is complete, the reviewing court should determine whether, based on the corrected ITO, there is a basis upon which the authorizing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place. The question is whether there is sufficient reliable information upon which the search authority could be grounded: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45.

[54] It is, however, well-settled that even where sufficient reliable information remains after excision and amplification, the reviewing judge has a “residual discretion” to set aside an authorization “where the judge is satisfied that the conduct of the police has been subversive of the pre-authorization process leading to the issuance of the search authority”: Paryniuk, at para. 66.

[55] That residual discretion must be exercised having regard to the totality of the circumstances: Araujo, at para. 64. Furthermore, in Paryniuk, at para. 69, this court described the test for the exercise of that discretion as follows:

What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like. [Emphasis added; citations omitted.]

[56] The standard to invoke that discretion is high. In Paryniuk, at para. 74, this court clarified that “[s]ubversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process.” In some cases, it has been described as conduct that amounts to an abuse of process: R. v. Vivar, 2009 ONCA 433, at para. 2; Paryniuk, at para. 62.

[57] The appellant submits that D.C. Campbell engaged in “deliberate deception” of the authorizing justice and submits that the trial judge failed to come to grips with that issue.

(ii) Did the Trial Judge Err in Failing to Find the Affiant Engaged in Deliberate Deception?

[58] The trial judge plainly understood the appellant’s assertion that the affiant had deliberately deceived the authorizing judge. He noted, at para. 8 of his reasons, the appellant’s submission that the statement in the ITO that the appellant was observed engaging in a drug transaction with Mr. Hussain was not only inaccurate, but “knowingly false and misleading” and that the authorizing justice was “knowingly misled or at least led astray by a cavalier failure to properly follow up on information and properly inform the authorizing justice.”

[59] After observing D.C. Campbell’s cross-examination, the trial judge concluded that D.C. Campbell “honestly and reasonably believed that the [appellant] was at the bag exchange. While he “should not have deposed that [the appellant] was observed in a bag exchange with Hussain … his conclusion that he was there was nonetheless reasonable.” The affiant reached this conclusion based on the totality of information provided to him and the inferences he drew from that information.

[60] These findings of fact, which were plainly available to the trial judge, are an implicit repudiation of the appellant’s claim of deliberate deception. There was no evidence before the reviewing judge to support the appellant’s assertion that D.C. Campbell conspired with the sub-affiants to make the case stronger than it appeared. D.C. Campbell testified that he made his statements in the ITO based on the written reports of D.C Capener and D.C Hilborn. He was entitled to do so. Those reports supported the inference the affiant drew from them that there had been a drug exchange between the appellant and Mr. Hussain in the appellant’s Mercedes on Cumberland Avenue, and that the appellant was engaged in activities consistent with drug trafficking.

[61] I would therefore reject this submission.

(iii) Disclosure of Video Recordings of Mr. Hussain

[62] Both parties have referred to McKenzie as accurately summarizing the principles applicable to disclosure requests in the Garofoli context. In most cases, subject to confidential informant privilege, the accused is entitled to disclosure of all documents that were put before the authorizing justice and all other relevant materials in the “investigative file” concerning the accused: McKenzie, at para. 15. If the material sought is not part of the investigative file, then it is presumptively irrelevant. There is an onus on the accused to show that disclosure will be of assistance to the court in relation to a material issue on the application to set aside the authorization: McKenzie, at paras. 39, 53, referring to Pires; Lising, at paras. 30-31, 41.

[63] The videos of Mr. Hussain’s comings and goings at Fort York Boulevard were unconnected with the appellant – they were not part of the investigative file against him, nor did the affiant rely on them in the ITO. What they might or might not have established, in relation to the accuracy of statements in the ITO concerning the appellant, were matters of pure speculation. The appellant failed to establish a reasonable likelihood that they would assist the court in the determination of the application. The trial judge rightly refused to be led down an evidentiary rabbit hole on a search for evidence to support a speculative claim. While it might have been easy enough to require the Crown to produce the evidence, that was not the point. Regardless of whether Mr. Hussain appeared at Fort York Boulevard with a back pack, zippered bag, or no bag at all, the video footage would not invalidate the affiant officer’s reasonable reliance on the investigative reports of the sub-affiants, which indicated that Mr. Hussain entered the Mercedes with one bag and emerged with another at Cumberland Avenue. The trial judge kept his focus – as World Bank demands – on the reasonable belief of the affiant and not on the ultimate truth of every assertion in the affidavit.

[64] In my view, the trial judge did not err in refusing this request.

(iv) Cross-Examination of Sub-Affiants

[65] Leave is required to cross-examine an affiant or sub-affiant. The standard for granting leave was set out by Sopinka J. in Garofoli, at p. 1465, as follows:

Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds. [Emphasis added.]

[66] Sopinka J. added that the trial judge should limit the scope of cross-examination to questions that seek to establish that there was no basis on which the authorization could have been granted: Garofoli, at p. 1465.

[67] The focus on a motion for leave to cross-examine “is on the reasonableness and honesty of the affiant’s belief about the existence of the requisite grounds, and not on the ultimate accuracy of the information the affiant relies upon”: R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 80. A proposed cross-examination directed to show only that some of the information relied upon by the affiant is false is unlikely to warrant leave unless it can also support an inference that the affiant knew or ought to have known it was false: Pires; Lising, at para. 41.

[68] When an accused seeks evidence in support of a Garofoli application, that narrow test must be kept in mind. In R. v. Imam, 2012 O.J. No. 6543 (C.J.), at para. 14, Paciocco J., as he then was, indicated that an accused must demonstrate a “threshold factual basis … raising a reasonable likelihood that cross-examination will produce probative evidence tending to discredit a material precondition to the authorization being granted or tending to show significant police misconduct in securing the search order”.

[69] On appeal, the decision of whether to grant leave to cross-examine an affiant or sub-affiant should be reviewed with deference. In Garofoli, at p. 1465, Sopinka J. stated, “The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised.” Absent an error in principle, a material misapprehension of any evidence, or an unreasonable decision, an appellate court will defer to the trial judge: Victoria, at para. 8; Garofoli, at p. 1465; and Pires; Lising, at para. 46.

[70] Here, the trial judge granted the appellant leave to cross-examine D.C. Campbell but, in accordance with the direction given in Garofoli, at p. 1465, he limited the scope of the examination to key issues that went into the assessment of whether there were reasonable grounds to grant the authorization. Specifically, he permitted cross-examination related to: the basis for the officer’s belief that the appellant was present in the area of Cumberland Avenue in Toronto in the early evening of December 19, 2013; the basis for his sworn belief that, at that time and place, the appellant was involved in an illicit drug transaction with Mr. Hussain; and the further observations of the appellant and his vehicle on December 19, 2013.

[71] The appellant does not take issue with that determination. But he takes issue with the trial judge’s conclusion that cross-examination of the sub-affiants was not required because the issues could be fully and fairly explored through D.C. Campbell’s cross-examination.

[72] The appellant has not demonstrated that the trial judge made an error in principle or misapprehended the evidence in refusing to order cross-examination of D.C. Capener and D.C. Hilborn. Nor was the decision unreasonable. Even assuming that the sub-affiants deliberately tailored their reports to make it appear that there was a direct drug transaction with the appellant (and there is no evidence of this), there is no factual basis to indicate that the affiant was aware that they had done so, ignored signs, or was wilfully blind to indications of impropriety.

[73] Having considered all the evidence, including the cross-examination of D.C. Campbell, the trial judge concluded that the affiant “honestly and reasonably believed that the [appellant] was at the bag exchange.” He acknowledged that D.C. Campbell should not have deposed that the appellant was “observed” in a bag exchange with Mr. Hussain, but “his conclusion that he was there was nonetheless reasonable.” As in the case of the disclosure request, the trial judge focused on the affiant’s reasonable belief and not on the ultimate truth of his statements. He properly refused cross-examination of the sub-affiants.

(v) Concluding that the Authorization Could be Issued

[74] It follows, in my view, that the trial judge did not err in concluding that the authorization could have issued with the offending portions of the ITO having been excised. There was circumstantial evidence that Mr. Hussain was a “big league drug dealer”, and direct evidence that he entered the appellant’s car on Cumberland Avenue in a furtive manner while carrying a bag and, very shortly thereafter, got out carrying either the same bag or a different bag. The trial judge described the circumstances as being “reasonably viewed as a drug transaction.” While there was no direct observation of the appellant in his car, it was driven from Cumberland Avenue to his apartment building and was parked in his spot. He was observed later in the day getting into and out of his car on more than one occasion and nobody else was observed getting into and out of his car that day.

[75] As the trial judge noted, the standard for naming a party on an application under Part VI of the Criminal Code is “far less than a balance of probabilities”. He reasonably concluded that “the authorizing justice could reasonably have found that it was Phan in his car on Cumberland Avenue when the drug dealer Hussain entered with a bag and quickly left.”

[76] The trial judge did not err in his disposition of the Garofoli ruling. I would not give effect to this ground of appeal.

(2) The Gang Evidence

[77] The appellant’s second ground of appeal is that evidence of his alleged membership in the Chin Pac and of the history of violence between the Chin Pac and the Asian Assassinz was overwhelmingly prejudicial, incapable of remediation by jury instructions, and should have been excluded by the balancing of prejudicial effect and probative value.

(a) The Evidence Admitted

[78] Over the objection of the defence, the trial judge permitted Crown counsel to file as an exhibit and read into evidence a 56-page document entitled “Facts Not Contested”, consisting of five pages of narrative and eight appendices. This took place at the conclusion of the Crown’s case and after the trial judge had given the jury a mid-trial instruction, informing them of the permitted use of the evidence and cautioning them against improper use.

[79] The “Facts Not Contested” provided a basis for the following conclusions: (a) the appellant, his brother, Jerry Phan, and his friend, Steven Livingstone, were members of the Chin Pac gang; (b) the deceased, Peter Nguyen, was a member the Asian Assassinz gang; and (c) there had been a long history of “back and forth” violence – shootings, stabbings, assaults and killings – involving members of the two gangs. The incidents referred to included:

• on July 3, 2010, Steven Livingstone (Chin Pac) was stabbed at “The Guvernment” nightclub in Toronto;
• on July 10, 2010, a week later, Tien Pham (Asian Assassinz) was shot and killed at a restaurant in Chinatown;
• on August 11, 2011, the appellant’s brother, Jerry Phan (Chin Pac), was shot while driving his car on Lake Shore Boulevard in Toronto;
• on January 1, 2013, Jerry Phan and his girlfriend were shot in the parking lot of “The Guvernment” nightclub;
• on February 24, 2013, Thuan “Tony” Nguyen (Chin Pac) was shot and killed outside a lounge in Toronto;
• on March 30, 2013, Michael Nguyen (Asian Assassinz) was shot and killed at the Yorkdale Shopping Centre. Michael Nguyen had stabbed Tony Nguyen in 2003. Thanh “Danny” Vo (Asian Assassinz) was also shot at the same location on March 30, 2013;
• on May 11, 2013, the appellant’s brother, Jerry Phan, was shot again while eating at a restaurant in the Yorkdale Shopping Centre. The appellant and Steven Livingstone were present, but were not hit;
• on December 6, 2013, Michael Quan (Asian Assassinz) was shot on Lakeshore Boulevard in Toronto;
• on December 26, 2013, Duy Ly Nguyen (Chin Pac) was shot 14 times outside his family’s residence but survived. An hour and 20 minutes later, Jamie Dang (Asian Assassinz) appeared in a Toronto area hospital with a bullet wound. The Crown theory was that the shootings were related;
• on February 9, 2013, Hung Pham (Asian Assassinz) was shot and killed. (This took place five days after the victim in this case, Mr. Nguyen, was shot and killed outside the Wildfire restaurant); and
• on November 3, 2014, the appellant’s brother, Jerry Phan, was shot and killed while sitting in his car in the parking lot of a restaurant in Richmond Hill.

[80] The “Facts Not Contested” also included photographs of members of each gang found by police in the possession of rival gang members, indicating that members of the two gangs had been targeting each other for violence.

(b) The Trial Judge’s Reasons ([R. v. Phan, 2017 ONSC 1061](/on/scj/2017/1061))

[81] The trial judge observed that the evidentiary record adduced by the Crown provided a reasonable basis to conclude that the appellant and the deceased were members of the rival gangs, and that “the violent history between the groups or gangs provided a motive for the [appellant] to participate in the murder of Peter Nguyen.” He said a “long-term perspective is necessary to assess the interaction of the two groups” and concluded:

If this evidence were not left with the jury they would be left to consider an apparently senseless shooting that involved unknown shooters and an alleged party who had no apparent motive. The absence of a proven motive would tend to support the denials by the respondent in his post-arrest statement. If they receive this evidence they may or may not find it is evidence of a motive. To exclude this evidence from their consideration on the issue of motive and intention would leave them to decide the case “on the basis of some artificially crafted, antiseptic version” as referred to by Dambrot J. in R. v. Riley et al. at para. 38.

[82] The trial judge gave the jury a mid-trial instruction before admitting the evidence, as well as a final instruction explaining the limited purpose for which the evidence was admitted and its prohibited uses.

(c) The Jury Instructions

[83] The appellant does not challenge the trial judge’s jury instructions. He simply says that instructions were incapable of mitigating the prejudice caused by the litany of inter-gang violence put before the jury, none of which was proven to have involved him as a perpetrator.

[84] Before the evidence was introduced, the trial judge told the jury that the Crown would tender evidence that the appellant and the victim were associated with “separate groups”, and that there had been a history of violence between the two groups. The Crown would contend that “this evidence relates to a potential motive for this homicide.” He would give the jury further instructions, but he explained that they could not consider the evidence “in any way as showing that Thanh Phan is a violent or bad person or that he is the type of person who would commit the crime he is alleged to have done”. Nor could they use the evidence to find that the appellant was involved in or responsible for any of the violent acts that the Crown alleged were committed by the Chin Pac.

[85] The trial judge repeated and expanded upon these cautions in his final instructions. He explained the Crown’s assertion that the motive for the crime and for the appellant’s involvement was based on the violent history between the rival gangs over several years. The jury members were to consider whether the appellant and Mr. Nguyen were associated with the rival gangs, but this did not require proof beyond a reasonable doubt. Motive was not an essential element of the crime, but if they found that the appellant had a motive, it might assist them in deciding whether the Crown had proven its case beyond a reasonable doubt. He explained, once again, the limited use they could make of the evidence and its impermissible uses.

(d) The Parties’ Submissions

(i) Appellant

[86] The appellant acknowledges that some of the gang evidence was probative of motive and animus. He submits, however, that most of the evidence had no probative value because it was “remote” and unconnected to motive and thus unduly prejudicial. He submits the evidence was all “one-way”. It established violence perpetrated by the Asian Assassinz against the Chin Pac, but it did not establish that the appellant was aware of this violence or that it resulted in reprisals by the Chin Pac. The trial judge failed to give sufficient consideration to the highly prejudicial impact of much of the evidence, particularly the evidence of a killing that occurred after the shooting of Mr. Nguyen, which had no probative value in establishing motive. A caution was insufficient to undo the prejudicial effect of all the evidence.

[87] By analogy to the principles applicable to similar fact evidence, the appellant argues that the relevant acts of violence must be linked to the accused and the mere possibility of a connection is insufficient, referring to R. v. Arp, [1998] 3 S.C.R. 339 and R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 31. In this case, the Crown called no evidence to establish the identity of the perpetrators of the acts of violence which allegedly formed part of the “narrative” or served as evidence of animus and motive. Lumping this disconnected evidence against the appellant was highly prejudicial. Relying on R. v. Riley, 2017 ONCA 650, 137 O.R. (3d), the appellant submits that much of the gang evidence should have been excluded as peripheral and unduly prejudicial.

(ii) Respondent

[88] The respondent submits that the jury was not required to consider the killing of Mr. Nguyen in a vacuum – they were entitled to know the history of violent retribution between the appellant’s and the deceased’s gangs. They were also entitled to consider these actions, including violent actions against the appellant’s brother and his friend, in assessing whether the appellant had a motive to participate in Mr. Nguyen’s killing.

[89] The respondent further submits that the trial judge understood the prejudicial effect of the evidence of gang violence, but it was mitigated by the manner in which the evidence was admitted – a documentary record – rather than viva voce evidence of police officers who had investigated the various crimes that formed part of the narrative. In addition, the trial judge provided effective cautionary instructions, both mid-trial and in his final instructions, that the jury should not infer that the appellant was involved in the other alleged wrongdoings of the Chin Pac or that he was the type of person who would commit the charged offence.

(e) Analysis

(i) Legal Principles

1) Evidence of Bad Character

[90] Evidence of gang membership is bad character evidence. It is presumptively inadmissible unless the Crown can demonstrate that: (a) it is relevant to an issue in the case; and (b) the probative value outweighs its prejudicial effects: R. v. B., (F.F.), [1993] 1 S.C.R. 697, at p. 699. The evidence is inadmissible if it serves only to show that an accused is the type of person likely to have committed the offence: B. (F.F), at p. 731; R. v. G. (S.G.)., [1997] 2 S.C.R. 716, at para. 65.

[91] While evidence of gang membership can be highly prejudicial, it may be relevant for a variety of purposes. Like all bad character evidence, it may be admissible on an exceptional basis where its probative value outweighs its prejudicial effect. It may be admissible to provide context or narrative, to establish animus or motive, or to establish the accused’s state of mind or intention, among other purposes. The case law is replete with the admission of gang association evidence for these and other purposes.

2) Evidence of Narrative

[92] Evidence that the accused is a member of a gang may have a narrative purpose, to help the jury understand the events as they unfolded. Narrative evidence is “evidence that tells the story of a crime in a manner that makes it possible for the jury to properly carry out its fact-finding function”: R. v. Riley (2009), 246 C.C.C. (3d) 552 (Ont. S.C.J.), at para. 60. The principle underlying the admission of narrative was expressed by Nordheimer J., as he then was, in R. v. Skeete, 2012 ONSC 737, at para. 15, aff’d 2017 ONCA 926, 357 C.C.C. (3d) 159, leave to appeal refused, [2018] S.C.C.A. No. 508:

it remains the fact that a “criminal trial is, after all, about the search for truth”. A jury ought to be provided with information that will allow them to put the central facts into context including the nature of the relationships between persons connected to the events that might not otherwise be obvious. Jurors should not be placed in a situation where they are attempting to perform their truth seeking function in what is effectively either a factual vacuum or an artificial one. [Emphasis added.]

[93] Evidence of gang membership and a history of gang violence may be relevant as narrative to contextualize a homicide that otherwise seems senseless. For example, in Riley (SCJ), at para. 38, which was cited by the trial judge, Dambrot J. admitted narrative of an ongoing gang war for the following reasons:

Without this background, the jury will be left to puzzle over an allegation of a senseless shooting by individuals who had no motive to do it. They will inevitably be invited by the accused to find a reasonable doubt on the basis of the absence of motive when in fact, evidence of motive exists. While it is imperative that limits be placed on the bad character evidence sought to be introduced by the Crown, and that strong instruction be given to the jury about how to use the evidence that is admitted, I do not think that the jury should be expected to decide this case on the basis of some artificially crafted, antiseptic version of the case. [Emphasis added.]

3) Evidence of Motive and Animus

[94] In addition to providing context, evidence of the accused’s gang affiliation may be relevant to the accused’s motive and animus.

[95] Motive and animus are related concepts. Animus refers to hostility toward a person or group. Animus may form part of a motive, which is what induces a person to act: R. v. Darnley, 2020 ONCA 179, at para. 46. This type of evidence is always relevant to intent or identity, although it must be evidenced by human acts and there are limitations to the extent to which such acts may be introduced: Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 81, leave to appeal refused, [2016] S.C.C.A. No. 299.

[96] As this court observed in R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 37, at para. 64, evidence of motive is relevant because:

Evidence of motive is a kind or species of circumstantial evidence that invokes a prospectant chain of reasoning. The line of argument engaged is that the previous occurrence of an act, state of mind, or state of affairs justifies an inference that another act was done, or state of mind or affairs existed, at some time afterwards that is material to the proceedings.

[97] An accused’s motive may be influenced by group membership. To determine if this has occurred, the trier of fact must first decide whether the accused is a member of a group. If they find that to be the case, they may consider whether the accused was influenced by a “group motive”. In R. v. Sipes, 2011 BCSC 640, at para. 53, Smart J. explained the concept of group motive:

In assessing the probative value of the discreditable conduct in this trial, it is essential to recognize that the charged offences are alleged to have been committed by members of a gang for the purpose of advancing the gang’s drug business. In other words, the motive for each of the charged offences was a group motive. As such, the structure of the gang and the role in or relationship of each of the accused to the gang is relevant to the Crown’s theory as to why the offences were committed and why the individual accused participated in the commission of them. [Emphasis added.]

[98] In addition, it is open to the Crown “to adduce evidence that shows or tends to show the intensity and permanence of a motive since this may enhance the probability that the person with the motive acted in accordance with it”: Salah, at para. 66.

[99] Evidence of the accused’s gang affiliations has been admitted to show animus and motive in many cases: see Riley (ONCA); R. v. Sarrazin, 2010 ONCA 577, 259 C.C.C. (3d) 293, aff’d 2011 SCC 54, [2011] 3 S.C.R. 505; R. v Haevischer, 2012 BCSC 1641; and R. v. Sanghera, 2012 BCSC 993.

(ii) Application

[100] As I have noted, the appellant does not dispute that some evidence of gang affiliation and some evidence of prior gang violence may have been relevant to narrative, animus, and motive. The appellant argues that the prejudicial effect of the evidence outweighs the probative value. Therefore, the trial judge erred by putting highly prejudicial evidence before the jury and inviting the jury to find the appellant guilty by virtue of his gang membership.

[101] The appellant’s submissions on this ground of appeal can be summarized in the following way:

1. the evidence was too remote and did not connect him to the violent acts because the police did not identify any suspects;
2. the evidence only demonstrated one-way violence by the Asian Assassinz (the gang the deceased was associated with) against the Chin Pac (the gang the appellant is associated with);
3. violence that took place after the charged offence was not relevant;
4. the evidence does not satisfy the legal standard set out by the Supreme Court in Arp and Perrier; and
5. given the above, the prejudicial effect outweighed the probative value.

[102] I would not give effect to these submissions. I will explain.

1) Remoteness of the Evidence: Lack of Suspects and One-Way Violence

[103] I will address the first two submissions together. I do not accept the submission that the evidence was too remote because the police did not identify any suspects. Nor do I accept the submission that the evidence only disclosed one-way violence by the Asian Assassinz against Chin Pac. Although the police had not identified suspects in these events, there was strong circumstantial evidence that painted a picture of an ongoing war between the Asian Assassinz and the Chin Pac.

[104] The gang violence evidence provided narrative and context. It was open to the jury to conclude that the appellant was a member of Chin Pac, whose members included his brother, Jerry Phan, and his friend, Steven Livingstone. Based on the evidence, the jury could also find that the Chin Pac had a long history of back and forth violent conflict with the Asian Assassinz. This evidence “tells the story” of the crime and provides necessary context. As in Riley (SCJ), the absence of this background would leave the jury to “decide this case on the basis of some artificially crafted, antiseptic version of the case” and to “puzzle over an allegation of a senseless shooting by individuals who had no motive to do it.”

[105] It was also open to the jury to conclude that the acts of violence perpetrated by the Asian Assassinz against Chin Pac members provided both group motive and personal motive for revenge and retribution: see Sipes, at para. 53. Notably, there were several attempts to kill the appellant’s brother, Jerry Phan, including one incident in the presence of the appellant on May 11, 2013. The frequency and nature of these acts of violence could help establish the intensity and permanence of that motive: Salah, at para. 66. Thus, the history of “back and forth” violence involving the two gangs, whether as victims or perpetrators, provided important context for the shooting of Mr. Nguyen, as well as evidence of animus between the two gangs. That animus, in turn, could have motivated the appellant to retaliate. As noted by this court in Skeete (ONCA), at para. 169, “Retaliation for a perceived wrong may provide a motive for a crime.” Overall, this evidence helps explain why the appellant might assist in the killing of Mr. Nguyen.

[106] Therefore, I do not accept the appellant’s submission based on Riley (ONCA) that the gang violence evidence is unrelated and inadmissible. In Riley (ONCA), this court held that the evidence was inadmissible because it was “evidence of unrelated criminality that formed no part of the narrative of the [charged] shooting. It was not of assistance in establishing motive on some of the counts” (emphasis added): at para. 212. The present case differs. The gang violence evidence is relevant to the charged shooting for the purposes of narrative, motive, and animus.

2) Evidence of Violence After the Charged Offence

[107] I do not accept the appellant’s submission that events after the killing of Mr. Nguyen were irrelevant to the existence of animus. Specifically, he argues that the evidence of the shooting of Hung Pham, another Asian Assassinz member, several days after the shooting of Mr. Nguyen, could not have been relevant to the appellant’s culpability in the latter’s death. Coming, as they did, on the heels of Mr. Nguyen’s assassination, these events were compelling evidence of the permanence and intensity of the animosity between the gangs. These incidents made it more likely that the animus was present when Mr. Nguyen was shot five days earlier.

[108] As this court observed in Riley (ONCA), at para. 160, “as a practical matter, … a trial judge may properly take into account the temporal connection between the discreditable conduct evidence and the charged offences in assessing its probative value.” Even if events take place after the charged offence, the test “remains whether the evidence’s probative value exceeds its prejudicial effect”, “there is no legal requirement for the Crown to establish evidence of discreditable conduct occurring after the charged offences is of ‘exceptional’ probative value”. In the present case, the trial judge made no error in balancing the probative value and prejudicial effect of the post-offence evidence.

3) Applicability of the Similar Fact Evidence Cases

[109] Nor do I accept the appellant’s submission concerning the applicability of similar fact evidence cases, such as Perrier and Arp. Those principles would require the jury to consider: (1) whether the evidence of one group activity can be used to identify the group responsible for another; and (2) whether the evidence has sufficient probative value in relation to the particular accused to outweigh its prejudicial effect. The appellant submits that the gang violence evidence is inadmissible because the police did not identify who committed the violent acts in the “Facts Not Contested” document. Without this information, it is impossible to identify whether a particular gang or any gang was responsible for the acts of violence. Therefore, there was no “link” between the appellant and the acts of violence committed by the Asian Assassinz.

[110] Perrier and Arp were concerned with similar fact evidence led for the purpose of identity. The Supreme Court clearly indicated that the test in Perrier applies to situations where “you have several crimes committed with a unique modus operandi, and the objective improbability of coincidence is high”: at para. 31. In those cases, “the trier of fact should be permitted to draw an inference that the same gang committed the acts”: Perrier, at para. 31. But in the present case, the purpose of the evidence is to provide narrative, motive, and animus – it is not to demonstrate identity on the basis of a unique modus operandi.

[111] Other courts have rejected the application of Perrier to gang history evidence adduced for purposes other than identity. In Riley (SCJ), the accused made a similar submission, arguing that Perrier placed limits on the admissibility of gang activity evidence. However, Dambrot J. rejected this argument, clarifying that Perrier is a “classic” similar fact evidence case where the evidence is used to establish identity, but it does not apply when the purpose is narrative:

In my view, this judgment is of no assistance to the accused. Perrier is what I would call a classic similar fact case, where one or more offences proved to have been committed by the accused is strikingly similar to the crime charged, and as a result is admissible to identify the accused as the person who committed the crime charged. Perrier simply provides appropriate restraints on the application of the principles concerning such cases in the situation where it is the gang's method of operation that is unique, and not the method of operation of an individual. This is not such a situation.

In this case, the gang evidence is not being tendered to prove identity on the basis of the uniqueness of the crime. It is being lead as part of the narrative of the case, and for the various other purposes that I am about to outline. As will be seen, none of these uses depends on the uniqueness of the crime for its probative value. Perrier has nothing to say about these issues. [Emphasis added.]

[112] For similar reasons, in Haevischer, at para. 88, Wedge J. rejected the application of Perrier to gang activity adduced for purposes other than identity. Wedge. J. explained that Perrier is a similar fact case that sets restraints on evidence related to a gang’s unique methods, it does not apply generally to all discreditable conduct evidence.

[113] Even outside the gang context, this court has explained that “motive evidence does not fit neatly within the normal similar fact evidence ‘test’” because “its probative value does not arise from any similarity”: R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at para. 98.

[114] In conclusion, the test from similar fact evidence cases like Perrier and Arp does not apply. The Crown did not advance a “classic” similar fact case where the allegation against the accused bears a striking similarity to prior acts, such as a unique gang trademark. When discreditable conduct evidence is led for the purpose of narrative, motive, and animus, the typical process for weighing probative value and prejudicial effect applies. There is no need for the “additional step” described in Perrier of looking for similarities to infer that the same gang carried out the acts.

4) Balancing Probative Value and Prejudicial Effect

[115] Overall, the trial judge did not err in balancing the probative value and prejudicial effect of the gang violence evidence. The trial judge plainly appreciated the value of the evidence in relation to narrative, animus, and motive, but was equally aware of the potential prejudicial effect. He was at pains to contain the scope of the evidence to limit its effect and to ensure that there was no reference to the appellant’s involvement in perpetrating any acts of violence, so as to mitigate the risk of moral prejudice. As the trial judge noted in his admissibility ruling at para. 9, “The Crown stipulated that if the evidence was admitted, there would be no information or suggestion that the [appellant] was personally involved in any of the acts of violence.” He instructed the jury to this effect.

[116] The prejudicial effect of the evidence was also mitigated by the method by which it was adduced. In many cases, gang-related evidence has been introduced through an expert. In this case, the Crown did not propose to call an expert, but was prepared to call police witnesses to testify about the history of violence involving members of the Chin Pac and the Asian Assassinz. In the course of the application to adduce this evidence, the trial judge suggested that concessions by the defence could alleviate the need to call some of the viva voce evidence the Crown sought to adduce. The trial judge asked the Crown to consider drafting admissions with respect to the “bottom line” evidence it wanted to adduce on this issue. Ultimately, the trial judge carefully curated the evidence by permitting the introduction of the “Facts Not Contested” document. As noted at trial, this means of putting the evidence before the jury removed some of the “punch” or impact of the evidence and minimized the risk of reasoning prejudice, which is the risk of distraction and confusion from the main issues at trial. While the risk of moral prejudice remained, it was mitigated by the jury instructions.

[117] The trial judge’s weighing of probative value and prejudicial effect is entitled to deference, in the absence of an error of principle, consideration of an irrelevant factor, failure to consider a relevant factor, or a plainly unreasonable conclusion: Skeete (ONCA), at para. 139.

[118] No such error has been identified and I would not give effect to this ground of appeal.

D. CONCLUSION AND ORDER

[119] For these reasons, I would dismiss the appeal.

Released: “GRS” MAY 13 2020

“G.R. Strathy C.J.O.”

“I agree. B.W. Miller J.A.”

“I agree. Gary Trotter J.A.”