Court of Appeal for Ontario

Date: 20230119 Docket: C64153

Benotto, Miller and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Yasin Abdulle Appellant

Counsel: Matthew R. Gourlay, for the appellant Susan L. Reid, for the respondent

Heard: September 14, 2022

On appeal from the conviction entered on November 30, 2016 and the sentence imposed on February 10, 2017 by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.

B.W. Miller J.A.:

[1] The appellant and his co-accused, Michael Monney, both fired shots at Yusuf Ahmed and his companions. One of them fired a shot that struck Mr. Ahmed in the neck and killed him. Both were charged with first degree murder. At trial, the circumstances of the shooting were disputed. The Crown characterized the shooting as a planned and deliberate murder that capped a cycle of escalating violence between the Tandridge Cripz gang and a rival group from the Albion neighbourhood.

[2] The defence denied the shooting was planned. Rather, the defence position was that Mr. Abdulle and his companions went to the Albion neighbourhood to sell drugs to another individual. But as they approached the Albion complex, they were intercepted by Mr. Ahmed and Kasim Mohamed, who attempted to rob them. Mr. Abdulle testified that he saw a gun in Mr. Mohamed’s hand. On Mr. Abdulle’s account, he then quickly fled, heard a gunshot, and turned and fired his gun in Mr. Ahmed’s direction in a spontaneous act of self-defence. Mr. Ahmed was shot in the neck and died.

[3] The jury found the appellant and Mr. Monney guilty of second-degree murder, which the trial judge interpreted as accepting neither the appellant’s nor the Crown’s theory of liability in full. On sentencing, the trial judge imposed a 15-year period of parole ineligibility on the appellant. The trial judge rejected the theory that this was a drug deal, finding instead it was a planned murder – although not a deliberate one. He found that although there had been a plan to go to Albion to shoot someone, they had not deliberated on that plan.

[4] The appellant appealed against conviction and sentence. For the reasons given below, I would dismiss the appeals.

Background

[5] The Crown brought an omnibus pre-trial application for the admission of evidence and to qualify two police officers to provide expert opinion evidence on issues related to the culture and practices of urban street gangs generally, and to the existence and membership of Tandridge Cripz and the rival A-block gang based in Albion. The trial judge admitted much of the proposed evidence, including a series of rap music videos said to have been made by members of the Tandridge Cripz. Following that ruling, the appellant and his co-accused formally admitted they were members of the Tandridge Cripz, and that the Tandridge Cripz met the definition of a criminal organization. With those two issues no longer in dispute, the trial judge revisited his initial evidential ruling and excluded the rap videos on the basis that their probative value was now diminished as a result of the concession and was exceeded by their prejudicial effect.

[6] As part of the revised ruling, the trial judge also ruled on the admission of police witness evidence of several violent interactions that occurred in the Tandridge and Albion neighbourhoods in the weeks and months immediately preceding the shooting of Mr. Ahmed.

[7] Among the concessions made by the appellant at trial, in addition to his membership in the Tandridge Cripz, were dealing crack cocaine and heroin and regularly carrying a handgun. He also admitted firing his gun at Mr. Ahmed twice, although, as noted above, he said the shooting was in self-defence.

[8] The trial judge, exercising his fact-finding powers on sentencing, found that both Mr. Ahmed and Mr. Monney fired shots, but he was not able to determine which of them fired the fatal shot. He found that the murder “was motivated by rivalry between the Tandridge Cripz and the young men, whether they considered themselves a gang or not, who lived at, or hung around, the Albion complex.” Mr. Ahmed was an innocent victim, and that if it had not been Mr. Ahmed, “these offenders would have shot someone else in his stead.”

Issues on appeal

[9] With respect to the conviction appeal, the appellant argues that the trial judge erred: (1) in admitting evidence about six incidents of violence between the Tandridge Cripz and the Albion group that occurred before the shooting of Mr. Ahmed; and (2) by allowing the Crown to use messages conveyed in rap music lyrics in cross examination, after the trial judge had excluded the admission of the rap music videos from which the lyrics were taken.

[10] With respect to the sentence appeal, the appellant argues that the imposition of a 15-year period of parole ineligibility is excessive and resulted from the sentencing judge’s error of minimizing the impact of systemic racism on the appellant’s moral culpability.

ANALYSIS

1. Did the trial judge err in admitting evidence of prior incidents of violence?

[11] The Crown tendered evidence of six incidents of violence in the Tandridge and Albion neighbourhoods over the months immediately preceding the shooting of Mr. Ahmed on August 12, 2013. Much of this was introduced through the testimony of police officers who had responded to 911 calls. This evidence was tendered for the purpose of establishing there was a turf war between the Tandridge Cripz and the Albion group, and that this turf war provided context and motive for the shooting of Mr. Ahmed. All of the incidents except one occurred while the appellant was in custody, and there was no allegation that the appellant had been directly involved in any of the incidents. The Crown argued that the appellant was nevertheless aware of the incidents, and because of his membership in the Tandridge Cripz and his duties to that criminal organization, the incidents provided a motive for him to have participated in a planned shooting in the Albion neighbourhood.

[12] The evidence of the prior incidents was, as the trial judge held, a form of prior discreditable conduct and its admission was governed by the test set out in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. That test requires a trial judge to determine whether the probative value of the evidence outweighed its prejudicial effect. The trial judge in this instance is said to have erred in his application of that test by overstating the probative value of the evidence, failing to appreciate its prejudicial effect, and consequently erring in determining that the probative value outweighed the prejudicial effect.

[13] As explained below, I do not agree that the trial judge erred. His ultimate determination that the probative value of the evidence outweighed its prejudicial effect was not tainted by any error and is entitled to deference.

[14] The six incidents were proffered by the Crown as evidence of a pattern of retaliatory violence between the Tandridge Cripz and the Albion group that culminated in the killing of Mr. Ahmed. The first incident was an alleged assault on Yahya Diblawe on March 10, 2013 by Mr. Monney and other members of the Tandridge Cripz. The second incident occurred the next day, when the brother of one of the Tandrdige Cripz members who was said to have been part of the beating of Mr. Diblawe was stabbed. In the third incident, on March 16, at least six gunshots were fired in a parking lot at the Albion complex and a gold-coloured Acura was seen “peeling out” of the parking lot. The appellant testified that a member of the Tandridge Cripz drove a gold-coloured Acura. The fourth incident was a drive-by shooting directed towards a young Black man walking outside 75 Tandridge Crescent on April 3. The police believe the shooting, in which no one was hit, was in retaliation for the March 16 gunfire at Albion. The fifth incident, on April 18, was another shooting at Tandridge. On this occasion, a man walking on Tandridge Crescent heard someone ask where he was from. He started to run, looked back, and saw two hooded men chasing him while firing a gun. At least 15 shots were fired, one of which hit him in the foot. Surveillance video showed two men emerging from a hole in a fence of a golf course that separated the Tandridge and Albion complexes, and then chase the victim. Surveillance video also showed a Tandridge Cripz member going into a parking garage immediately before the shots were fired and walking in the direction of a car which the gang used to store weapons. Within moments of the shots being fired, the individual ran out of the garage, looked around, then returned to the parking garage. The police interpreted his actions as retrieving a gun from the stash car, and then returning it when he could not locate the shooters. The sixth incident, August 1, was the shooting in Albion of Madhe Hure (an associate of Mr. Ahmed) and Kasim Mohamed (who was with Mr. Ahmed when Mr. Ahmed was shot and killed). A discarded cellphone found nearby linked one of the members of the Tandridge Cripz to the scene.

[15] The trial judge considered the probative value of the evidence of the six incidents to be in demonstrating the existence of animus and gang rivalry between the Tandridge Cripz and the Albion group. This evidence would equip the jury to determine whether there was a rationale for the appellant, as a member of the Tandridge Cripz, to go to Albion to shoot someone associated with Albion because of gang rivalry. Additionally, the evidence had probative value in supporting the expert evidence of Sgt. Nasser, who testified about the structure, operations, and culture of the Blood and Cripz affiliated Toronto street gangs generally, and about the specifics of the Tandridge Cripz, including membership, practices, and ethos. Sgt. Nasser’s testimony included testimony about concepts like gang-controlled territory, and practices such as the use of violence to protect territory, and violent retaliation in response to insult or acts of violence against members or the gang itself.

[16] The appellant complains that the trial judge’s analysis of the probative value of the evidence was not adequate for the purposes of the Handy analysis, and amounted to the bare conclusion that the incidents were capable of providing some circumstantial support for the existence of animus between the two group. The appellant argues that the trial judge did not grapple with his central complaint: that the police officers’ testimony about these incidents amounted to little more than the fact that 911 calls were received and the police attended and made observations at the scene. Their evidence was therefore limited in its scope, and the evidence was not enough to enable the jury to draw the conclusion that these incidents were part of a turf war between gangs, particularly given the trial judge’s ruling that the Crown had not led sufficient evidence to conclude the Albion group was a street gang.

[17] The appellant also argues that the evidence was collateral to the matters in issue and, in any event, the meaning of the incidents was unclear. The appellant argues that even the alleged assault on Mr. Diblawe – the pivotal first instance of violence between the two groups – could not be established on the evidence adduced. The evidence of the assault came from police officers who attended the scene in response to 911 calls and found Mr. Diblawe in a rental unit with members of the Tandridge Cripz. Mr. Diblawe denied to police that he had been assaulted, which denial the Crown characterized as further evidence supporting the theory that this was an instance of inter-gang violence. At trial, defence expressed frustration at the limited available means to challenge this evidence, given that Mr. Diblawe was not a witness, nor were any of the members of the Tandridge Cripz who were believed to have participated in the assault.

[18] I do not agree that the trial judge erred in characterizing the evidence of the six incidents as having probative value. With respect, the value of the evidence – particularly when viewed as a whole – was obvious and did not require any further elaboration than what the trial judge provided. Although the evidence of each incident, considered separately, certainly left many questions unresolved, these particulars were relatively unimportant for the purpose for which the evidence was put. The salience of the evidence was in establishing a pattern of gang-related violence, in tandem with the expert evidence provided. It was not necessary that the incidents be proved to the degree that would have been required if an individual were being tried for an offence related to any particular incident. The evidence of the six incidents had value in assisting the jury to evaluate the competing claims of whether the appellant shot Mr. Ahmed as a result of a tragic misunderstanding during a drug deal, or whether, as the Crown argued, it was neither a drug deal nor a random and inexplicable act of violence, but part of a larger cycle of gang violence. This was evidence needed by the jury to put the shooting into context: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 93.

[19] With respect to prejudicial effect, the trial judge’s analysis of the potential prejudice to the appellant from each of the six incidents was similar. The trial judge reasoned that because the appellant had not been alleged to have participated in any of the incidents, the potential for increased moral reasoning prejudice – that is, the risk that a jury would reason that the appellant is the type of person who would commit such an offence – was low. The appellant had already admitted to being a member of the Tandridge Cripz, which the trial judge reasoned meant that the appellant had conceded to have been a party to criminal acts including carrying a gun and dealing in drugs. Being a member of a gang entailed having obligations to further the interests of the gang, and to take part in its criminal activities.

[20] The appellant does not deny he faced a significant risk of moral reasoning prejudice resulting from his admissions, which included that: he was a member of the Tandridge Cripz street gang; the gang was a criminal organization; he had a gun on the day of the shooting and fired two shots; he was a drug dealer selling crack cocaine and heroin; he had carried a firearm on multiple occasions when doing drug deals; some of his text messages were about guns; and he had a criminal record for possessing a firearm and ammunition, as well as for uttering threats and assaulting a peace officer.

[21] However, the appellant argues that there must have been some increase in prejudice resulting from this evidence, and the trial judge was wrong to have assessed its incremental effect as nothing. After all, he argues, even though the appellant was not alleged to have been involved in these actions, the actions were nevertheless attributed to other members of the Tandridge Cripz acting for the benefit of the gang. A jury likely would have concluded that the appellant was morally tainted by his association with the assaults and retaliatory shootings done by his confederates to further their common enterprise, despite having no immediate involvement.

[22] I do not agree that the trial judge committed any error. As the trial judge noted, the appellant faced considerable moral prejudice from the formal admissions he made at trial. He admitted to being a member of the Tandridge Cripz street gang and admitted that it was a criminal organization. Although (as discussed below) the appellant tried to resile from it in his cross-examination, the admission of membership in a street gang entailed admission of complicity in acts of violence committed against rivals in the drug trade for the benefit of the street gang. He specifically admitted to dealing in drugs and carrying a firearm. The evidence of the specific actions of his confederates on these occasions added little to the existing risk that the jury would commit the error of reasoning that the appellant had poor moral character and was therefore more likely to have shot the victim as part of a turf war rather than in self-defence. That risk was managed by the trial judge’s instruction that it was not permissible to reason in this way and that the evidence was not to be used in this way. But the evidence was relevant and admissible for the purpose of providing the history of events and interactions that establishes motive, and the trial judge made no error in so instructing the jury.

[23] In short, the trial judge committed no error in his characterization of either the probative value of the evidence or its prejudicial effect. Accordingly, his determination that the prejudicial effect – when addressed through a jury instruction explaining the limited purpose to which the evidence was to be put – did not outweigh its probative value is entitled to deference from this court.

2. The decision to allow the use of rap music lyrics on cross-examination

[24] The trial judge initially agreed to admit into evidence several rap videos featuring members of the Tandridge Cripz, for the purpose of establishing aspects of the gang’s ethos. It was after this ruling, that the appellant and Mr. Monney conceded their membership in the Tandridge Cripz and conceded that the gang met the legal definition of a criminal organization. Once these concessions were made, the trial judge revisited his ruling and excluded the admission of the rap videos on the basis that the concessions sharply reduced the probative value of the videos. The videos were no longer needed to establish gang membership or criminal organization and the probative value no longer exceeded the prejudicial effect. The rap videos were never played for the jury, nor were they shown the lyrics.

[25] Nevertheless, a dispute about the use of the lyrics later arose during the cross-examination of the appellant. Sgt. Nasser had provided expert opinion evidence about the characteristics of Toronto street gangs, including the Tandridge Cripz. His evidence was not seriously challenged. But when the appellant was asked if he agreed with Sgt. Nasser’s expert opinion evidence that the Tandridge Cripz gang would use force to protect its turf from incursions by rival drug gangs, he not only disagreed but maintained (as the Crown paraphrased in closing submissions) that the Tandridge Cripz were more of a “loose affiliation of young men who were working independently of each other in the drug trade and that they were not about violence, not about retaliation, and have no hierarchy.”

[26] In response to this unexpected testimony, the Crown sought a reconsideration of the ruling excluding the rap videos. The trial judge maintained the exclusion. But the Crown was permitted to ask, and did ask, whether the Tandridge Cripz “sent out the message” to rival gangs not to come on to their turf and that there would be consequence to anyone who did. The appellant took this as a question about what his fellow gang members had said in rap videos. He agreed that some of his fellow gang members had likely sent out messages like “don’t come to our neighbourhood. If you do, we’re going to come back and we’re going to shoot you.” But he cautioned about taking rap lyrics literally: “(a)s to the truth of the content or how reliable rap lyrics are, that’s for you to decide.”

[27] On appeal, the appellant argues that the trial judge erred in permitting this line of questioning, as it undermined the ruling excluding the rap videos from admission into evidence.

[28] I do not agree. There was nothing in the trial judge’s ruling that prohibited the Crown from using the substantive content of the rap songs on cross-examination to challenge the appellant’s evidence about the nature of the Tandridge Cripz. The prejudice from the admission of the videos themselves would have flowed from showing the jury lyrics or images that could inflame stereotypical assumptions about race and culture: R. v. Mills, 2019 ONCA 940, at para. 122. But the jury was shown neither of these things. The same risk of reasoning prejudice did not arise from exposing the jury to the loose thematic statement elicited from the appellant. Furthermore, the appellant had appeared to resile from the admissions on which the ruling had been predicated. The trial judge committed no error.

[29] Accordingly, I would dismiss the appeal against conviction.

3. Sentencing

[30] The conviction for second degree murder required the imposition of a life sentence with a minimum period of parole ineligibility of 10 years. The trial judge imposed a parole ineligibility period of 15 years.

[31] In his reasons for sentence, the trial judge found that the appellant and Mr. Monney did not go to the Albion neighbourhood to do a drug deal like they claimed, but rather went to Albion “with a definite plan to shoot someone”, although the trial judge was unable to say when precisely they formed the requisite intent for murder. He concluded that “the murder of Mr. Ahmed was motivated by rivalry between the Tandridge Cripz and the young men, whether they considered themselves a gang or not, who lived at, or hung around, the Albion complex.”

[32] The appellant takes no issue with the fact-finding of the trial judge. Rather, he argues that the trial judge erred in rejecting evidence of systemic racism, and further erred in principle by concluding that even if he had been persuaded by the evidence that the appellant had experienced systemic anti-Black racism, the seriousness of the offence negated its relevance in fashioning an appropriate sentence.

[33] As explained below, I agree that the trial judge erred in his treatment of the evidence of anti-Black racism. This error, however, did not have an impact on the sentence imposed. Neither did the trial judge err in principle in coming to the conclusion that the disadvantage faced by the appellant, his youth, and the need for rehabilitation, did not overtake other objectives of sentencing – denunciation and deterrence – for what the trial judge characterized as a “near first degree murder”.

[34] The appellant’s sentencing pre-dated this court’s decision in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641. There was no pre-sentence report. The trial judge ruled that all of the evidence from trial and from the pre-trial applications would be admissible for sentencing purposes. Before sentencing submissions, the defence also tendered letters from the appellant’s family and friends. A letter from the appellant’s sister spoke to the many disadvantages the appellant had experienced growing up in the Tandridge neighbourhood since emigrating from Somalia. Included in these was an indictment of the local school (and the school system more broadly), in which the appellant was said to have received suspensions and other disciplinary actions for wrongs he did not commit, and where his educational needs were neglected by teachers who were either indifferent to him or actively disliked him. The appellant’s sister explained the failings of the school in terms of systemic anti-Black racism, compounded by the inability of a single mother from Somalia – not sufficiently familiar with either the language or the culture – to advocate effectively for her son.

[35] The trial judge found the letters unhelpful, in that they were not provided as sworn evidence, such that there was no opportunity for the Crown to either investigate the claims made or cross-examine on them. Accordingly, the trial judge determined that the letters were entitled to little weight and were not adequate to establish that the appellant had suffered from systemic discrimination. The trial judge added, parenthetically, that he found the appellant’s sister’s “indictment of the school system to be more than a little ironic” given that both she and the appellant’s brother were both pursuing their second university degrees at the time of the appellant’s sentencing. The trial judge ultimately concluded that “even were I persuaded that one or both of the offenders had suffered some measure of systemic discrimination … the offence is so serious that the practical reality would have been that it would have had virtually no impact on the determination of an appropriate period of parole ineligibility.”

[36] This court held in Morris that it is an error to require a direct causal link between the commission of an offence and “the negative effects of anti-Black racism on the offender before anti-Black racism can be seen as mitigating personal responsibility.” However, it is still necessary to establish “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue … Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour.”

[37] Although the trial judge did not have the benefit of this court’s reasons in Morris at the time of sentencing, the principles articulated in that judgment apply nonetheless. Morris did not establish a new approach to sentencing Black offenders, but emphasized the existing obligation to consider evidence that explains “how the offender came to commit the offence, or which allows for a more informed and accurate assessment of the offender’s background, character and potential when choosing from among available sanctions”: para. 106. As the Crown conceded on appeal, Morris and other cases allow courts to receive evidence of anti-Black racism in Canada and its impact on particular offenders through the proper application of judicial notice or the admission of other evidence.

[38] The trial judge’s remarks in response to the sister’s indictment of the school system and other institutions were needlessly dismissive. The fact that the appellant’s siblings either avoided or overcame the same obstacles was not dispositive of whether the appellant experienced disadvantage and whether that disadvantage had some bearing on his moral responsibility.

[39] However, even though it was an error for the trial judge not to accept that the appellant had suffered some measure of anti-Black discrimination, he made no error in finding “the offence is so serious that the practical reality would have been that it would have had virtually no impact on the determination of an appropriate period of parole ineligibility.”

[40] Importantly, the trial judge did not find that the experience of systemic anti-Black racism would have been irrelevant to sentencing, but rather that the seriousness of the offence meant that whatever diminution of moral responsibility could be granted to the appellant, and whatever terms may have been available to enhance his rehabilitation in some other circumstances, the seriousness of this offence pushed considerations of denunciation and deterrence to the foreground. A 15-year period of parole ineligibility was judged to be a fit sentence considering the nature of the offence:

Both the appellant and Mr. Monney armed themselves with handguns and drove to the Albion complex;
They had a plan to shoot someone;
Both fired shots in a public area, approximately 30 seconds after leaving the car;
The motivation was gang rivalry and the assertion of gang dominance;
The appellant had just been released from youth detention for serving a sentence for possession of a loaded firearm. Within three days of his release he resumed dealing drugs and carrying a gun;
The appellant was a member of a criminal organization;
The appellant had continued violent behaviour while incarcerated.

[41] In short, the sentence imposed was within the appropriate range for this offence and this offender. A more comprehensive consideration of the appellant’s background would not have changed the sentence.