COURT FILE NO.: CR-23-50000281-0000 and CR-23-50000323-0000 DATE: 20240919

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Applicant – and – HASSAN ALI Respondent

COUNSEL: S. Adams and L. Kromm, for the applicant G. Grill, for the respondent

HEARD: June 3, 4, 6, 7, 11, 13; July 19, 2024

RULING

SCHRECK J.:

[1] Hashim Hashi was fatally shot on January 31, 2021, as he sat in his car outside the entrance of the parking garage in the building where he lived on Falstaff Avenue in Toronto. The man who shot him came from the front passenger seat of a car that had previously been driving around the area. In addition to the shooter and the driver, there was a third man sitting in the rear of the car.

[2] Hassan Ali is a rap musician who performs using the name “Top5.” He is charged with first degree murder in relation to the death of Mr. Hashi. The Crown does not allege that Mr. Ali shot Mr. Hashi or that he was the driver of the car the shooter came from. Rather, it is the Crown’s theory that Mr. Ali was the third man in the back seat and that he had directed the shooter to commit the murder.

[3] There is no evidence of any relationship between Mr. Ali and Mr. Hashi. There is no evidence that they had ever met or communicated or that they knew anyone in common. Rather, it is the Crown’s theory that Mr. Ali was a member of a criminal street gang and that the murder was part of ongoing rivalry between his gang and another gang operating in the area where the murder took place. However, Mr. Hashi was not a member of any gang. He was killed, the Crown submits, simply because he was in the rival gang’s “turf.”

[4] In support of this theory, the Crown wishes to adduce three categories of evidence. The first is a body of evidence that includes a series of rap videos created by Mr. Ali and social media posts authored by him and others spanning a period of approximately five years. The Crown submits that this evidence shows that Mr. Ali was a member of a street gang that had an ongoing rivalry with another gang from the area where the murder took place. I will refer to this as the “gang evidence.”

[5] The second is the evidence of Sgt. Andrew Hammond, a Toronto Police Service officer whom the Crown wishes to have qualified as an expert in street gangs and related matters. The Crown submits that Sgt. Hammond’s evidence is necessary to understand the gang evidence and give context to the events surrounding the murder of Mr. Hashi.

[6] The third is an intercepted telephone communication between Mr. Ali and another person while Mr. Ali was in custody in which they discuss one of Mr. Ali’s songs. While the conversation is ambiguous, the Crown takes the position that a line from the song combined with other comments made by Mr. Ali amount to an admission that he was involved in the homicide.

[7] The overarching issue with respect to all of the categories of evidence the Crown seeks to admit is whether its probative value outweighs its prejudicial effect. Determining this issue requires an understanding of the evidence said to link Mr. Ali to the homicide, the evidence sought to be admitted, and the Crown’s theory with respect to how they are related.

[8] An assessment of the probative value of the gang evidence requires a consideration of it in the context of all of the evidence, including Sgt. Hammond’s opinion. I therefore propose to provisionally admit his opinion evidence on the voir dire to the extent that I find it to be reliable. I will take the same approach with the evidence of a media sociologist the defence seeks to have qualified to give expert testimony about the subgenre of rap music performed by Mr. Ali.

[9] While the Crown takes the position that the gang evidence is probative of “identity, party liability and state of mind”, the real issue it relates to is motive. It is the Crown theory that Mr. Ali and others murdered Mr. Hashi because he was on the rival gang’s territory and submits that the gang evidence establishes this. However, while the gang evidence supports an inference that Mr. Ali had an animus towards members of the rival gang and therefore a motive to harm them, it does not support the existence of such an animus or motive towards people who were not gang members. While there is some evidence from Sgt. Hammond about people in other gangs targeting non-members, it is unreliable and, in any event, does not relate to Mr. Ali or the gang he allegedly belongs to.

[10] The gang evidence has some probative value as it shows that Mr. Ali appears to have a preoccupation with the building where the homicide takes place. However, its overall probative value is limited because of the tenuous link the evidence has to the issue of motive. The prejudicial effect of the evidence, however, is significant. It portrays Mr. Ali as a dangerous and violent individual who directs others to shoot people and who has no regard for human life. Furthermore, the gang evidence is voluminous and will require the jury to expend considerable time resolving factual issues that do not bear directly on the central issues in this case.

[11] Having carefully considered the matter, I have concluded that the prejudicial effect of the gang evidence significantly outweighs its probative value. It is therefore inadmissible. Given this conclusion, it is not necessary for me to determine whether Sgt. Hammond should be qualified as an expert.

[12] I take a different view, however, of the intercepted communication. While Mr. Ali’s utterances are ambiguous, they are open to the interpretation the Crown has given them. Without the gang evidence, their prejudicial effect is limited. The evidence is therefore admissible.

[13] The following reasons explain these conclusions.

I. EVIDENCE

A. The Homicide and Mr. Ali’s Alleged Involvement

(i) Mr. Ali’s Movements Prior to the Homicide

[14] The homicide took place at about 8:56 p.m. on January 31, 2021. Earlier that day at around 12:47 p.m., Mr. Ali was seen on security video at an apartment building on North Town Way in Toronto. He got onto the elevator on the 14th floor, went down to the lobby, and left the building. He was wearing a grey track suit with a hood and a diagonal black line on the outside of his right thigh which went from the waist to around his knee. He was wearing black shoes with white around the edges. There was a small logo on the left chest area and another one on the left hip, just below the pocket.

[15] At 1:06 p.m., Mr. Ali got into a grey Mercedes that had stopped at the building’s entrance. It is the Crown’s theory that this vehicle was being driven by an individual called Immanuel Misa. The Mercedes returned to the building at 2:41 p.m. and Mr. Ali got out and entered the building. He left the building again at 2:49 p.m. and got back into the Mercedes.

[16] Between 3:05 p.m. and 5:31 p.m., cell tower records show that Mr. Ali’s phone was in the vicinity of 123 Crockford Boulevard in Scarborough. There is evidence that there is a recording studio in this area.

[17] At 5:56 p.m., there was a call between Mr. Ali and Mr. Misa. Mr. Ali’s phone was in Scarborough at the time and Mr. Misa’s was on Highway 401 near Yonge Street.

[18] At 6:02 p.m., a man entered the building on North Town Way and went into the elevator. He was wearing black pants, a black hoodie with the hood up, a puffy black winter jacket, white socks, black shoes with a small white mark on the top and a black face mask. It is the Crown’s theory that this is the man who shot the deceased.

[19] The man in black got out of the elevator on the 14th floor at 6:03 p.m. He got back into the elevator at 6:06 p.m. carrying a small object wrapped in a green plastic bag. The man left the building and walked away towards a street. At 6:10 p.m., he returned to the building on North Town Way and stood in the lobby. At 6:11 p.m., Mr. Misa’s cell phone was near the same location. At 6:12 p.m., a vehicle which the Crown alleges is the same Mercedes that Mr. Ali was in earlier arrived at the building and the man in black entered it.

[20] At 6:24 p.m., Mr. Misa’s phone connected to a cell tower in Scarborough. It connected to cell towers near the recording studio between 6:55 p.m. and 7:48 p.m. It was then not used until 9:16 p.m., when it connected to a cell tower north of Highway 401 near Yonge Street and Sheppard Avenue. There was also no activity on Mr. Ali’s phone between 6:00 p.m. and 9:07 p.m.

(ii) The Homicide

(a) Movements of the Honda Civic Prior to the Shooting

[21] Beginning at 8:45 p.m., video at various locations captured a Honda Civic driving around in the area of a housing complex located at 20, 30 and 40 Falstaff Avenue. It appeared to be circling the area. At one point, it entered a parking lot and then came back out again.

[22] At another point, the Civic slowed down slightly as it passed a van parked in front of 30 Falstaff Avenue. Several minutes later, it passed the same van, by which point the passenger side rear door and the hatch at the back were open. Two people, one man and one woman, appeared to be putting something in or taking something out of the van. After passing the van, the Civic turned around, drove up beside it, stopped momentarily, and then kept driving.

[23] At another point, the Civic slowed down as it passed a white sedan. It is unclear from the video whether the sedan was occupied. It is the Crown’s theory that the occupants of the Civic were driving around looking for someone to kill.

(b) The Shooting

[24] At 8:44:39 p.m., Mr. Hashi’s vehicle turned onto the driveway leading to the parking garage of 40 Falstaff Avenue. About 12 seconds later, the Civic stopped near the driveway and a man emerged from the front passenger side. The man was dressed entirely in black but had white socks. He ran from the car towards Mr. Hashi’s vehicle, which was stopped in front of the garage. The man then stopped on the passenger side of Mr. Hashi’s vehicle and fired a gun in the direction of the vehicle several times (there was evidence that 14 rounds were fired). He then immediately ran back to the Civic and got into the front passenger seat, after which the Civic sped away.

[25] The person who shot Mr. Hashi and the driver of the car have not been identified.

(c) The Person Alleged to be Mr. Ali

[26] As the man in black ran from the Civic, the rear passenger door opened and a person sitting there turned as if to get out of the car, but then closed the door without doing so. This person, whom the Crown alleges was Mr. Ali, was dressed all in grey and was wearing black shoes with white around the edges. The Crown also asserts that a black stripe can be seen on the person’s pants, although I myself cannot see it.

(d) The Civic After the Shooting

[27] The Civic, which turned out to have been stolen several weeks earlier, was last seen on video at 8:58 p.m. at Highway 401 and Keele Street. It was found later that evening in Earl Bales Park and had been set on fire. There was no forensic evidence that assisted in identifying the occupants.

(iii) Mr. Ali’s Movements After the Homicide

[28] At 9:20 p.m., the Mercedes arrived at the building on North Town Way. Mr. Ali, wearing the same clothes he had on earlier, got out together with another individual in dark clothing (whom the Crown agrees is not the same person in black seen earlier and not the person who shot Mr. Hashi). They got into the elevator and went to the 14th floor. At 9:28 p.m., they returned to the elevator and went back down to the lobby. Mr. Ali was wearing different clothes than he had on earlier. They got into the Mercedes, which drove away.

[29] From 9:52 p.m. to 10:21 p.m., Mr. Misa’s phone was in the vicinity of Crockford Boulevard.

(iv) After the Fact Conduct

[30] Mr. Ali was arrested on February 13, 2021, and charged with being an accessory after the fact to murder. On March 30, 2021, he was released on bail on conditions which included a requirement that he wear an electronic monitoring ankle bracelet.

[31] On May 20, 2021, one of the investigating officers contacted Mr. Ali’s counsel at the time and advised her that the charge against him would be upgraded to first degree murder. Shortly thereafter, Mr. Ali removed his electronic monitoring bracelet and left the jurisdiction. He was arrested in Los Angeles, California on October 7, 2021, and extradited to Canada.

B. The Gang Evidence

(i) What the Crown Seeks to Admit

[32] The Crown seeks to adduce the following:

• a music video by Mr. Ali entitled “Bap Bap Bap” from May 2018;
• a music video by Mr. Ali entitled “Demons” from March 2019;
• a music video by Mr. Ali entitled “401” from December 2022 (but believed to have been made in August 2020);
• a music video by Mr. Ali entitled “Movie” from August 2021 (but believed to have been made some time earlier and before January 2021);
• a music video by Mr. Ali entitled “2 Cases” from January 2021;
• a music video by Mr. Ali entitled “Frontline” from May 2021;
• a music video entitled “3 Buildings” from October 2021, which was not created by Mr. Ali but in which he appears;
• A music video entitled “Picking a Side,” which was not created by Mr. Ali and to which he has no apparent connection;
• portions of an interview of Mr. Ali on a YouTube show about rap music hosted by an individual known as DJ Akademiks;
• social media posts from Mr. Ali’s account dating from October 2016 to September 2021;
• social media posts from an account called “@GGGdalabel” (identified on the header as belonging to “GGG Productions”) from 2021;
• social media posts from an account called “@mrupsidedown6” from 2019 and 2021;
• a social media post from an account called “@hood._.politics” from January 30, 2021;
• evidence of shootings of and by unidentified individuals in 2020.

(ii) Background and the Crown’s Theory

(a) The GGG, Jungle Bloods and Family Comes First

[33] Mr. Ali lives in the Lawrence Heights area of Toronto, a neighbourhood that is sometimes called “the Jungle.” It is the Crown’s theory that Mr. Ali is a member of and has a leadership role in a criminal street gang operating in this neighbourhood which goes by various names, including “Go Getem’ Gang” (“GGG”), the “Jungle Bloods,” and “Family Comes First” (“FCF”).

[34] The existence of the Jungle Bloods, or FCF, is not really in issue. What is in issue is whether the GGG is another name for this gang. Mr. Ali records music under the label “GGG,” and it is the defence position that references to the GGG, which occur frequently in Mr. Ali’s videos and social media communications, are references to this record label and not the Jungle Bloods or any other street gang. The Crown acknowledges that GGG is a record label, but takes the position that it is also a street gang.

(b) The Falstaff Marke Gang

[35] Another gang, known as the “Falstaff Crips” or “Falstaff Marke Gang,” operates in the area of Falstaff Avenue, particularly a housing complex on the street with the addresses of 20, 30 and 40 Falstaff Avenue. There is an ongoing rivalry between the Jungle Bloods and the Falstaff Marke Gang. Both gangs also have ongoing rivalries with other street gangs.

(c) The Murder of “Marke” (Sharmarke Wyed)

[36] On May 26, 2015, an individual named Sharmarke Wyed, also known as “Marke,” was shot and killed on Clearwater Crescent in Fort McMurray, Alberta. Mr. Wyed was a member of the Falstaff Crips, which was then renamed after him. Nobody was ever arrested for the murder.

[37] While the Crown does not allege that Mr. Ali had any involvement in the murder of Mr. Wyed, it is unclear whether the Crown takes the position that the GGG was involved. [1] Some of the social media posts the Crown seeks to have adduced show Mr. Ali emptying a bottle of water, which is said to be a reference to the murder on Clearwater Crescent and a show of disrespect towards the Falstaff Marke Gang by celebrating the murder of its member.

(d) The Murder of “Foolish” (Said Ali)

[38] On July 30, 2017, Mr. Ali’s brother, Said Ali, who had the nickname “Foolish,” was shot and killed in Lawrence Heights near a Shopper’s Drug Mart store. The murder remains unsolved. Many of Mr. Ali’s social media posts memorialize his brother.

[39] At some unknown time, an Instagram account named “@iammarkegang” posted a video of an individual stomping on a Shopper’s Drug Mart bag. There is evidence that many people, including Mr. Ali, believed that the person in the video was Hanad Ali (no relation to Mr. Ali), a young person who lived in the housing complex on Falstaff Avenue and who used the nickname “Clutch.” The video was viewed as a sign of disrespect towards Foolish, who was murdered near a Shopper’s Drug Mart.

(e) The Murder of Clutch (Hanad Ali)

[40] Clutch was himself murdered at the Falstaff housing complex on August 1, 2019. His murder also remains unsolved. While the Crown does not allege that Mr. Ali was involved in the murder, the inference that the murder was committed by the GGG seems to be central to the Crown’s theory. [2]

[41] Hours after Clutch’s murder, a post was put on Mr. Ali’s Instagram account which said, “Karma is the most patient gangster ever.” Since then, there were numerous references to Clutch on Mr. Ali’s social media accounts, rap videos and elsewhere which suggest that Mr. Ali was pleased that Clutch had been murdered because he had disrespected Foolish. Several of these posts occurred during the period between December 2020 and Mr. Hashi’s murder.

(f) The @hood._.politics Post on January 30, 2021

[42] On January 30, 2021 (the day before Mr. Hashi’s murder), an Instagram account named “@hood._.politics” reposted the video of the person stomping on the Shopper’s Drug Mart bag with the caption “Throwback vid of Clutch dissing Foolish RIP.”

[43] The author of the post is unknown, and it is unknown whether Mr. Ali followed this account or whether he saw the posting. Sgt. Hammond testified that Mr. Ali was “tagged” in one of the replies to the post. [3]

(iii) Music Videos

(a) “Bap Bap Bap”

[44] A video by Mr. Ali entitled “Bap Bap Bap” was posted on YouTube on May 6, 2018. It appears to have been made in the Lawrence Heights Area and the lyric includes references to “Go Getem’” and “clearwater.” At one point, Mr. Ali sings, “ I got shooters left and right that’ll kill for five .” The Crown submits that this shows the existence of the GGG as a gang and its rivalry with the Falstaff Marke Gang as well as “party liability.” [4]

(b) “Demons”

[45] Another video, entitled “Demons,” was posted on March 26, 2019. It contains numerous references to the “Go Getem’ Gang,” “clearwater,” and references to shooters and shootings. It also mentions “stats” and “keeping score,” which according to the Crown’s expert are references to keeping track of how many members of each gang have been shot. The Crown seeks to rely on this to show the existence of the GGG as a gang and its rivalry with the Falstaff Marke Gang. [5]

(c) “401”

[46] A video entitled “401” was created on August 17, 2020, but not posted until December 16, 2022 (well after Mr. Hashi’s murder). It shows Mr. Ali and others wearing items with “GGG” written on them and also shows Mr. Ali on Highway 401 with the housing complex on Falstaff Avenue behind him, which according to Sgt. Hammond is a sign of disrespect. At various points, Mr. Ali waves a water bottle around, which the Crown submits is a reference to the murder in Alberta in 2015. Depictions of Mr. Ali driving past the housing complex or holding bottles of water also appear in several of his social media posts.

[47] The lyric of “401” includes references to guns and killing, including: “He had a gun, I had a bigger one” and “Imma kill a nigga just for Foolish.” The Crown submits that this video is probative of the existence of a rivalry with the Falstaff Marke Gang as well as “motive/ animus. ” [6]

(d) “Movie”

[48] A video entitled “Movie” was posted on August 5, 2021, although it is the Crown’s theory that it was created prior to the murder of Mr. Hashi. It shows Mr. Ali and others wearing items with GGG on them and making gun gestures with their hands. This video is said to be probative of membership in the gang and the rivalry with the Falstaff Marke Gang.

[49] One of the lines in “Movie” is “We put opps in they place.” Another is “Before you check my IG [Instagram], better check the stats.” The latter phrase appeared in an Instagram post on Mr. Ali’s account a few hours after Mr. Hashi’s murder.

[50] Another line is “When I’m in the ‘Staff I’m off that Clutch pack,” which is said to be a reference to the murder of Clutch. This same line was used in a video posted to Instagram on July 28, 2021, which showed Mr. Ali driving by the Falstaff complex.

(e) “2 Cases”

[51] A video entitled “2 Cases” was posted on January 13, 2021. It also depicts the wearing of GGG items and Mr. Ali refers to “my GGs.” He makes a gun gesture with his hand. There are several references to the murder of Clutch. At one point, Mr. Ali says “234 don’t forget to add the K.” According to the Crown’s expert, “234” is a reference to the housing complex at 20, 30 and 40 Falstaff Avenue and the “K” refers to “killer,” but is not necessarily intended to be taken literally and may simply signify animosity. [7] The term “234K” also appears in some of Mr. Ali’s social media posts.

(f) “Frontline”

[52] “Frontline” was posted on May 21, 2021. It depicts people wearing items with “GGG” written on them and at several points depicts a large gun. The lyric includes references to “killers,” “catching bodies,” and a “headshot.” Foolish is mentioned.

(g) “3 Buildings”

[53] The Crown also wishes to rely on a video entitled “3 buildings” by an artist identified as “1Hunnid” which was posted on October 15, 2021. It was not created by Mr. Ali, although he appears in it briefly. The lyric refers to the murders of Clutch and Marke and states that “we got them three buildings in fear.” There are references to guns and shooting people.

[54] Although Mr. Ali did not create the video, the Crown takes the position that he adopted its contents by posting it on his YouTube account. It is said to be probative because it shows that there is a rivalry between the GGG and the Falstaff Marke Gang “beyond Mr. Ali’s own words and lyrics.” [8]

(h) “Picking a Side”

[55] “Picking a Side” is a video by a group of individuals identified as “Avengers K.” [9] Mr. Ali did not create it, nor does he appear in it. The song is about the need to pick a side in various gang rivalries and names a number of gangs. At one point, reference is made to the GGG.

(iv) The DJ Akademiks Interview

[56] An individual known as DJ Akademiks has a YouTube show on which he interviews various rap artists. The show is broadcast live and people watching it can post comments by text which appear on the screen and can also call in by telephone. DJ Akademiks and the people he speaks to connect by videoconference. The individuals on the show frequently speak using slang terms.

[57] DJ Akademiks interviewed Mr. Ali and other rap artists in a show that ran for three and a half hours. The show was posted on December 20, 2020, although it is not clear that that was when it was recorded. While the other rap artists came and went throughout the show, Mr. Ali remained there the entire time.

[58] Mr. Ali said several things during the show which the Crown wishes to rely on. He identified the GGG as the “Go Getem’ Gang.” Referring to the GGG, he said, “We’re equipped, we’re like the army, we’re like the military,” which the Crown submits shows that Mr. Ali and his fellow gang members are armed with firearms. At one point, he said that he and others “got head tap” and do not “only give legazz’s,” which according to the Crown’s expert means that they shoot people in the head, not the legs. There were references to “dead opps,” a reference to members of rival gangs, and Mr. Ali said, “people that beef with us die.” At one point, he referred to himself as a “shooter.”

[59] On numerous occasions during the show, Mr. Ali asserted that there is “no cap in my rap,” which means that claims he makes in his rap songs are true and not simply exaggerations or posturing. Whether what Mr. Ali says is “cap” or not was a constant theme throughout the show. Several viewers suggested that he was “capping” about various claims, and he repeatedly denied this.

[60] Mr. Ali also made several assertions during the interview which the Crown accepts are not true. For example, he suggested that the recording artist Megan Thee Stallion wishes to have sex with him, that he shoots people at the request of the artist Drake, that he was going to travel to Dubai the following week to have sex with prostitutes, that he is a porn star, that he had sexual relations with a rapper named Chromazz (a claim he retracted after Chromazz came on the show and denied it) and that he drives a Porsche.

(v) Social Media Posts

(a) Mr. Ali’s Posts

[61] Many of the social media posts are described elsewhere in these reasons. Many refer to the “Go Getem’ Gang” or “GGG” and some show clothing with this written on it. One is a photograph of two men wearing balaclavas with a caption that says “GGG” followed by three pictures of handguns. Some refer to “scoring” or “stats,” which Sgt. Hammond testified refers to keeping track of the number of shootings each gang has perpetrated on the other. A post from February 1, 2021, the day after the homicide, shows a picture of Mr. Ali with the caption, “Before you check my Ig [Instagram] ….. Betta check the stats.”

[62] Several of the social media posts show Mr. Ali driving past the housing complex on Falstaff Avenue. Some have pictures or videos of bottles of water, some of which are being emptied by Mr. Ali. There are numerous references to Foolish and Clutch. One from January 4, 2021 says, “He regrets dissin foolish … it’s to late, HES DEADDDDD.”

(b) Posts From @GGGdalabel

[63] Posts from the account named @GGGdalabel also refer to Foolish and one shows a photograph of a gravestone with his name on it. There is also reference to “234K” and a depiction of the Falstaff housing complex.

(c) Posts From @mrupsidedown6

[64] Posts from an account named @mrupsidedown6 show photographs of individuals with the caption “Marke Gang.” One has a video of a Shopper’s Drug Mart bag containing cash. [10]

(d) Post from @hood._.politics

[65] The Crown seeks to adduce one post from the account @hood._.politics, the contents of which are discussed in paras. 42-43.

(vi) Shootings in July and August 2020

[66] On July 22, 2020, a man on Falstaff Avenue was shot several times by two other men, who then fled. The victim refused to speak to the police or cooperate in the investigation. The shooters were never identified.

[67] On July 30, 2020, another person was shot on Falstaff Avenue. He survived. The person who shot him then fired two or three rounds into the lobby of the building at 30 Falstaff Avenue. A forensic analysis of the shell casings found at the scene revealed that they had come from the same gun as did shell casings found at the scene of the shooting on July 22, 2020.

[68] On August 13, 2020, two men shot at two other men on Amaranth Court in the Lawrence Heights area, which is allegedly part of the GGG territory. One of them was hit but survived. The second one produced a gun and shot back. None of the people involved were identified. Some of the shell casings found in the area matched those found in the area of the other two shootings.

C. Expert Evidence of Sgt. Hammond

(i) Proposed Areas

[69] The Crown seeks to have Sgt. Andrew Hammond of the Toronto Police Service qualified to give expert opinion evidence in the following areas:

• The nature, culture, customs, characteristics, behaviour, activities, terminology, identifiers, symbols, turf and value systems of street gangs generally;
• the use of social media by street gangs, and the significance of appearing in, or being featured in, social media posts which contain content and/or imagery that identifies with a street gang;
• the use of music lyrics and music videos in street gang subculture, and the significance of appearing in, or being featured in, a music video that contains lyrics and/or imagery that identifies with a street gang;
• other indicia of an association or connection with a street gang, and whether certain items of evidence are consistent with membership and/or association to a street gang;
• interpretation of words and phrases within rap videos/lyrics and/or social media posts, and the contextualization of rap lyrics, rap music videos, and/or social media posts to the extent that the lyrics, videos, or posts are relevant in understanding the nature, culture, customs, characteristics, terminology, identifiers, symbols, terminology, turf, or behaviour/ activities of a street gang;
• the existence of GGG as a street gang and its turf, and the existence of the Falstaff Marke Gang as a street gang and its turf;
• the rivalry between GGG and the Falstaff Marke Gang. [11]

(ii) Background and Training

[70] Sgt. Andrew Hammond has been a police officer since 2007. While he had some involvement with gang-related investigations and interactions with gang members throughout his career, he began working primarily in that area in 2016 when he joined the Gun and Gang Task Force, where he remained for about six years. He then joined the Investigative Support Unit, where he entered the “Expert Program” to receive training to become a gang expert.

[71] Sgt. Hammond testified that he kept his knowledge of gangs current by continually monitoring social media, reviewing police intelligence reports, speaking to other experts and reading their reports. He also attends lectures and reads academic literature relevant to his field.

[72] Sgt. Hammond has been qualified as an expert in court proceedings on 10 occasions. In all but one of these cases he was qualified on consent. In the one case where his expertise was contested (R. v. Adan, [2021] O.J. No. 7529 (C.J.)), he was qualified in some but not all areas in which he was tendered as expert.

(iii) Evidence

[73] Sgt. Hammond prepared a 43-page report (entitled “Anticipated Evidence”) in relation to this case and testified on the voir dire over the course of four days. I do not intend to summarize all of his evidence here but will refer to it as necessary during my analysis.

[74] Sgt. Hammond provided a general history of the Jungle Bloods and the Falstaff Crips, much of which was summarized earlier, and also discussed rivalries between the Jungle Bloods and other gangs. He also commented on various music videos and social media posts, at times offering an opinion as to the meaning of certain words and phrases. He expressed the opinion that the GGG and the Jungle Bloods are one and the same.

D. Expert Evidence of Dr. Evans

(i) Proposed Areas

[75] The defence seeks to have Dr. Jabari Evans qualified to give opinion evidence in the following areas: [12]

• drill music, its history, lyrics, musical devices, and modes of communication;
• drill artists, their personas, and formula for entertainment and success, including their use of social media;
• the intersection between, and relationships between, gangsters and drill artists and their support staff;
• the importance of space and place in drill music to understand the significance of neighbourhoods. [13]

(ii) Background and Training

[76] Dr. Evans obtained a Ph.D. in media, technology and science from Northwestern University in 2021 and also has a Master of Social Work degree from the University of Southern California and a Bachelor of Arts degree from the University of Pennsylvania. He is currently an assistant professor of race and media in the School of Journalism and Mass Communication at the University of South Carolina. He describes himself as a media sociologist and his primary field of interest is the use of technology as a means of self-expression by marginalized groups. He has never testified in court.

(iii) Evidence

[77] Dr. Evans prepared a report and testified over the course of two days. As with Sgt. Hammond, I do not intend to summarize all of his evidence but will refer to it as necessary during my analysis.

[78] Dr. Evans explained that “drill rap,” a subgenre that includes Mr. Ali’s music, first became prominent in Chicago around 2008 and originally contained depictions of gang life among young Black men living in the South Side area of that city. Gang affiliations and rivalries are a central theme in this type of rap music, which eventually spread in popularity to other areas around the world, including New York, Paris, London and Toronto.

E. The Intercepted March 21, 2022 Call

(i) Contents of the Call

[79] On March 21, 2022, Mr. Ali had a telephone conversation with a person named Yasin Ali (whom I will refer to as “Yasin”) while he was in custody. The call was intercepted pursuant to an authorization in relation to an unrelated investigation.

[80] At the beginning of the call, Mr. Ali asked Yasin, “Yo, you heard the song? Yo, yo, yo, yo, yo, you heard the song [unintelligible] Cody? I’m in the lane, make a right, Larry out the car, take his life ….” Yasin replied that he had not known that Mr. Ali made the song. It is an agreed fact that the line “Larry out the car, take his life” is from a song by Mr. Ali entitled “Died With a Thirty.”

[81] Later in the conversation, Mr. Ali told Yasin that he had a hearing that week and was trying to get his charges dropped at the judicial pretrial. He said that he was “telling the man, just … drop it right now, man, I won’t … bother you guys in my music, man.” Yasin told Mr. Ali that “They’re gonna want to hold you for at least a year.” Mr. Ali then said,

Yo so listen man, you know me, I don’t give a fuck. Listen, I’ve been … I’ve been … I’ve been … I have a prelim probably June, July or September. She [his lawyer] saying prelim, you walking. But Cody, my nigger … you heard this one ... Larry out the car, take his life.

Yasin then said something unintelligible, after which Mr. Ali said, “Died With a Thirty.”

[82] Yasin told Mr. Ali that he was the “only one that went hard on that song.” Mr. Ali replied,

Cody, I was off the ship that night, my nigger. I smoked two blunts with these guys, I was hurting that night. I remember that night like no tommo … like all of us in the studio. I’m like yo, let’s go, let’s go … like you know what I mean.

(ii) “Died With a Thirty”

[83] “Died With a Thirty” is a rap song by Mr. Ali and others. It is apparently about a homicide, but not the one at issue in this case as the creation of the song predates it. The Crown does not seek to introduce the song into evidence and is willing to stipulate that the line “Larry out the car, take his life” is a lyric from a rap song that is not about anything to do with this case.

II. ANALYSIS -- GANG EVIDENCE

A. Overview

[84] The overarching purpose for which the Crown seeks to have most of the evidence at issue on this application admitted is to establish that Mr. Ali is a member of, and holds a leadership role in, a violent criminal street gang. It is undisputed that evidence of gang membership is bad character evidence and therefore prima facie inadmissible: R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 31; R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 90; R. v. Cook, 2020 ONCA 731, 153 O.R. (3d) 65, at para. 40.

[85] It is uncontroversial that if the Crown wishes to displace the presumption of inadmissibility that applies to evidence of bad character, it bears the onus of establishing on a balance of probabilities that the probative value of the evidence on a particular issue outweighs its prejudicial effect: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. Tsigirlash, 2019 ONCA 650, at para. 26.

B. Analytic Framework

[86] The admissibility inquiry that must take place when the Crown seeks to have the presumption of inadmissibility displaced proceeds in several steps. The first is to identify exactly what evidence the Crown seeks to have admitted: Tsigirlash, at paras. 28-29; Aragon, at para. 33.

[87] Second, the Crown must identify the issues in question to which the evidence relates: Handy, at paras. 69-75; Tsigirlash, at para. 32.

[88] Third, the Crown must establish some link between the accused and the evidence sought to be admitted, that is, there must some evidence upon which a trier of fact could conclude that such a link exists: R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 59; Tsigirlash, at para. 34.

[89] Once these initial steps are taken, the court is able to assess the probative value of the evidence. This requires a consideration of its cogency in relation to the inferences the Crown seeks to have drawn; Handy, at para. 82. It is important to keep in mind that the Crown is not required to establish that the evidence is conclusive in order to have it admitted: Handy, at paras. 94-97.

[90] The court must next assess the prejudicial effect of the evidence keeping in mind the purpose for which it is being tendered. There are usually two types of potential prejudice. The first is “moral prejudice,” that is, “the risk that the accused will be stigmatized as a bad person and convicted on that basis”: Tsigirlash, at para. 35. In assessing this type of prejudice, the following passage from Handy, at para. 139, is instructive:

It is frequently mentioned that “prejudice” in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

[91] The second type of prejudice is “reasoning prejudice,” which can have several aspects. It can refer to the risk that the trier of fact may become confused or distracted from its proper focus on the offence charged: Tsigirlash, at para. 35. It can refer to the unwarranted consumption of trial time: Handy, at para. 144; Tsigirlash, at para. 35. It can also refer to the risk that the evidence will cause jurors to have “sentiments of revulsion and condemnation which might well deflect them from the rational, dispassionate analysis upon which the criminal process should rest”: Handy, at para. 145. This last aspect is closely related to moral prejudice, but distinct from it.

[92] Once the probative value of the evidence and its prejudicial effect have been assessed, the final step is to determine whether the former outweighs the latter. As noted in Handy, at para. 148, this can be difficult because “the two variables do not operate on the same plane.” The former goes to the proof of an issue whereas the latter goes to the fairness of the trial.

[93] The concept of “weighing” implies that it is not the absolute value of either variable that will ultimately determine admissibility, but, rather, how each compares relative to the other. Evidence that is only moderately probative may nonetheless be admitted if its prejudicial effect is minor. On the other hand, evidence that is very probative or even conclusive may nonetheless be excluded if the prejudicial effect is very significant: Handy, at para. 74.

[94] Having identified the analytic framework, I turn to its application in this case.

C. Identification of the Evidence

[95] The gang evidence is clearly outlined in the Crown’s Application Record and summarized above. I am satisfied that the Crown has appropriately identified the evidence it seeks to have admitted.

D. Issues in Question

(i) Identity, Party Liability, State of Mind and Motive

[96] The Crown has identified the issues in question in its written materials as “identity, party liability and state of mind.” [14] During the argument of the application, it became clear that the Crown also took the position that it was relevant to the narrative.

[97] With respect to identity, party liability and state of mind, while the evidence at issue ultimately relates to those issues, it does not do so directly. In my view, the most immediate issue to which the evidence relates is that of motive. The Crown’s theory, as I understand it, is that Mr. Ali’s membership in a gang that is in conflict with another gang provided him with a motive to commit a murder on that gang’s territory. Motive is, of course, relevant to other issues, including intent and identity: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at paras. 60-61; R. v. Saleh, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 65.

[98] This is important because Mr. Ali does not admit that the GGG is a criminal gang or that he is a member of such a gang, and counsel during the hearing of the application spent considerable time on the probative value of the evidence in relation to those issues. However, those are not the issues that matter when determining admissibility. Proving that Mr. Ali is a member of a gang only advances the Crown’s case insofar that it establishes motive, and therefore identity and intent. It is therefore the probative value of the evidence in relation to the issue of motive that must be weighed against its prejudicial effect.

(ii) Narrative

[99] Evidence of discreditable conduct may also be admitted on the basis that it has a narrative purpose where it puts the central facts into context. That context may include the nature of the relationship between the parties: R. v. Skeete, 2012 ONSC 737, at para. 15, aff’d 2017 ONCA 926, 357 C.C.C. (3d) 159; Phan, at para. 92.

[100] In some cases, evidence with a narrative purpose is admitted “to contextualize a homicide that otherwise seems senseless”: Phan, at para. 93. The Crown submits that this is such a case. However, this is simply another aspect of the issue of motive. In R. v. Riley (2009), 246 C.C.C. (3d) 552 (Ont. S.C.J.), aff’d 2017 ONCA 650, 137 O.R. (3d) 1, the purpose of this type of narrative evidence was explained in the following terms (at para. 15):

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.

It is clear from this that evidence of discreditable conduct that is admitted pursuant to the “making sense of a senseless killing” exception is usually directly related to the issue of motive: R. v. Abdulle, 2023 ONCA 32, 166 O.R. (3d) 307, at para. 18; Phan, at paras. 104-105; Skeete (S.C.J.), at para. 21.

E. Link Between Mr. Ali and the Evidence

(i) Gang Evidence

[101] Most of the evidence at issue is said to relate to a longstanding conflict between two gangs. Obviously, that conflict, if it exists, would consist of the actions of a number of different individuals and not only Mr. Ali. However, this does not mean that there is no link between the discreditable conduct evidence and Mr. Ali. The Crown is entitled to rely on a group’s motive to establish that the accused had a motive: Aragon, at para. 59. In this case, I am satisfied that there is some evidence upon which a trier of fact could infer that the GGG is a criminal gang, that the applicant is a member of it, and that it has a longstanding rivalry with the Falstaff Marke Gang.

[102] This is sufficient to establish the requisite link between Mr. Ali and most of the evidence the Crown seeks to admit, subject to two exceptions which I outline below. I appreciate that there are some gaps in the evidence. For example, it is unknown whether the murders of Marke, Foolish and Clutch were committed by rival gang members. However, this does not matter as it not the fact of these murders, but rather the way in which others reacted to them that is relevant to the issue of whether a rivalry existed between the two groups. There is no issue that Marke was a member of the Falstaff Marke Gang. While it is unclear whether Foolish and Clutch were gang members, it is clear that they were affiliated with gang members, or at least viewed by rival gang members to be so.

(ii) Shootings in July and August 2020

[103] I take a different view, however, with respect to the shootings in July and August 2020. There is no evidence as to who was shot or who shot them. There is no evidence that any of the perpetrators or victims were members of any gang. The Crown submits the fact that the shootings occurred within the territories of the rival gangs and the fact that the ballistics evidence shows that the same guns were involved supports an inference that the shootings were part of an ongoing gang conflict. I do not agree. The alleged rival gang territories are adjacent to each other and not very far apart. At most, this evidence shows that some of the people involved in the shootings had some connection to the general area in which they took place: R. v. Gager, 2012 ONSC 388, at para. 261, aff’d without reference to this point, 2020 ONCA 274.

[104] The Crown also relies on a conversation on Instagram that took place on July 30, 2020 between Mr. Ali (using the name “Top5”) and someone using the name “@markygang_234” which went as follows:

Markygang_234: Come to the ‘Staff. Top5: Wasn’t there a [unintelligible] three days ago? Markygang_234: Come to the ‘Staff. Top5: Didn’t someone need to get an emergency run in the Staff three days ago? Markygang_234: Didn’t Foolish need an emergency run three years ago? What’s the difference? Top5: What about Clutch? What about Marke Bands? What about Kanye? Markygang_234: Where’s Foolish? Top5: Foolish is a three-year-old, three years old pack; your homies are getting packed left and right every day. Markygang_234: My homies are innocent. Marke was a good nigga. Foolish is a horrible guy. Foolish is in hell. Foolish is in hell. Top5: I’m just going to tell you something; I’m just going to tell you something. You guys only have one pack on my block there’s at least seven of you niggas dead.

[105] The Crown submits that since this conversation took place on the same day as the second shooting, it is clear that they are discussing these shootings, which shows that they are related to the gang conflict. In my view, not only is this speculative, but the contents of the conversation suggest that they were speaking about events other than the shootings the Crown seeks to lead evidence about. Mr. Ali mentions an incident that happened three days earlier, which would have been July 27, not July 22, the date of the first shooting. He also mentions people being dead, and none of the victims of the shootings died.

[106] In my view, the Crown has failed to establish the requisite link between Mr. Ali or the gang he allegedly belongs to and the shootings in July and August 2020. This ends the admissibility inquiry with respect to this evidence.

(iii) “3 Buildings” and “Pick a Side” Videos

[107] As noted earlier, the “3 Buildings” video was not created by Mr. Ali, although he appears in it. The Crown submits that he has nonetheless adopted its contents for their truth by posting the video on his YouTube account. With respect, this submission has no support in the caselaw or common sense. There is no evidence about the person who created this video or the nature of his connection to Mr. Ali or the GGG. The requisite link has not been established and the evidence is inadmissible.

[108] The same reasoning applies to the “Pick a Side” video. There is no evidence that Mr. Ali had anything to do with its creation, that he knew the people who created it, or that he had even seen it. At most, it is hearsay evidence from an unknown source that the GGG is a gang. It is not admissible.

F. Probative Value

(i) Motive

[109] The Crown’s theory, put simply, is that because Mr. Ali is a member of a gang that had a conflict with another gang, he had a motive to murder an innocent non-gang member on the rival gang’s territory.

[110] If the victim of the murder in this case had been a member of the Falstaff Marke Gang, the probative value of the evidence would be obvious and significant: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at paras. 20-23; R. v. Dunkley, 2018 ONSC 2741, at paras.13-15, aff’d 2022 ONCA 497, 163 O.R. (3d) 59, at para. 41; R. v. Abbey, [2006] O.J. No. 4985 (S.C.J.), at paras. 24-25; Aragon, at para. 58; Abdulle, at paras. 14-18; Gager (C.A.), at para. 41; Riley (S.C.J.), at paras. 87-93. However, the deceased was not a member of the Falstaff Marke Gang, or any other gang. Other than his location at the time of his murder, there is no evidence linking the deceased to any gang or any gang member.

[111] In its written argument, the Crown stated that it is “unclear whether the shooting of Mr. Hashi was a case of mistaken identity, or whether he was murdered simply because he was a young Black man who happened to reside within the territory of the Falstaff Marke Gang.” [15] The Crown did not pursue the mistaken identity theory in oral argument, nor is there any evidence to support it. Rather, the Crown relied on the theory that because of his membership in a gang and that gang’s rivalry with another gang, Mr. Ali had a motive to kill any young Black man residing in the rival gang’s territory.

[112] Other than Mr. Ali’s preoccupation with the housing complex on Falstaff Avenue, there is nothing in the voluminous material the Crown seeks to have admitted to support this theory. There is no question that Mr. Ali has a strong animus towards the Falstaff Marke Gang and its members. He repeatedly goads and threatens members of the gang in his videos and on social media and celebrates the deaths of its members. However, the record does not support the conclusion that that Mr. Ali or any members of the GGG have any animus towards non-gang members living in the area or any intention of harming them.

(ii) Sgt. Hammond’s Evidence About Other Gangs

(a) The Evidence

[113] The Crown has attempted to fill this gap by relying on Sgt. Hammond’s evidence that there is a “recent trend” of gang members inflicting violence on non-gang members from rival neighbourhoods. When asked during his evidence in-chief to provide examples of this, Sgt. Hammond testified about a feud that took place five or six years ago between rival gangs in Regent Park:

I think there were 20 plus shootings between those neighbourhoods over about a year period, in so much that there were kids being shot in those communities that had no gang involvement. And I’m not – I’m only saying that because the members of the community of Regent Park were putting up flyers warning people that innocent kids were being shot. [Emphasis added]. [16]

Later in his evidence, Sgt. Hammond said:

I could tell you that from mindset [sic] of, of individuals that I’ve spoken to, it is not, you know, person A in that, that neighbourhood is my target, but it doesn’t matter because that neighbourhood is in conflict with mine. [17]

He added that he also relies on information from “intelligence officers” and “intelligence reports”, although he provided no details about this. [18]

[114] When asked to give a specific example of an innocent non-gang member being targeted by a gang member, he stated:

Off the top I couldn’t tell you those ones off the top of my head. I mean I know I saw some – I mean, well, there was an innocent, um, community worker in, in the Lanes, in one of the gang areas at Jane and Finch, who was shot and killed, and a lot of -- one of the online interviews I saw with Top5 they talk about he was an innocent community leader, and he was shot and killed in that community, and there was a lot of back and forth saying it doesn’t matter, it doesn’t matter, he’s the outlaw, it doesn’t matter. [19]

[115] Sgt. Hammond was referring to a portion of his report where he described a video of an interview of Mr. Ali by an individual known as Bundog. At one point, another person identified as “hunnid” joined the interview and there was a discussion about a community leader who was killed. They discussed that this person was on the “wrong block” and Mr. Ali suggested that the person would not have been killed in his neighbourhood and would have been “safer in the jungle.” [20]

[116] There are several difficulties with Sgt. Hammond’s evidence about the “recent trend.”

(b) Reliability

[117] First, the basis for Sgt. Hammond’s opinion is unclear. He referred to some people in Regent Park putting up flyers five or six years ago warning people about innocent people being shot, but it is unclear whether Sgt. Hammond confirmed that people actually were being shot, nor is it clear whether these people were being targeted or simply shot by mistake. It is similarly unclear whether the community worker Mr. Ali referred to was the target of a shooting or injured during a shootout between other people.

[118] With respect to the individuals Sgt. Hammond spoke to, it is unclear who these individuals were, how many he spoke to, when he spoke to them, or what they meant when they said that they targeted neighbourhoods. His evidence about relying on “intelligence reports” was equally vague.

[119] While expert opinions may be based on data from a variety of sources, including interviews, their reliability will often depend on the extent to this which the data is “accurately recorded, stored and available”: R. v. Abbey (No. 1) (2009), 2009 ONCA 624, 97 O.R. (3d) 330 (C.A.), at para. 119. This has not been done with any of the data Sgt. Hammond relies on.

[120] Sgt. Hammond’s opinion about gangs targeting non-gang members is not among the areas the Crown seeks to have him qualified in at trial. However, while counsel did not expressly say so, the Crown clearly relies on it on the voir dire. Without commenting on the rest of Sgt. Hammond’s evidence at this stage, I am of the view that his opinion on this issue is not sufficiently reliable to warrant admission: R. v. Abbey (No. 2), 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 111-114.

(c) Extrapolating Motive

[121] The second problem is that the motives other people in other gangs may have had to commit crimes cannot be relied on to infer that Mr. Ali had such a motive. While different street gangs share many characteristics, they are clearly not all identical. As a matter of common sense, it cannot be assumed that all members of street gangs commit the same crimes for the same reasons: R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 49-50. This is not a case like Riley, where there was evidence from someone who knew the accused that they shot random people when they were bored: Riley (S.C.J.), at paras. 124-127. In this case, there is no evidence that the GGG or any member of it had ever targeted a non-gang member.

(d) R. v. Mohamed

[122] The Crown relies on R. v. Mohamed, 2020 ONSC 5074, at para. 17, where a police expert was permitted to give opinion evidence about “The concept of street gangs committing violence in rival neighbourhoods as a form of intimidation or retaliation.” While the basis for the expert’s opinion in that case is not clear from the ruling, it is clear that he had taken steps to familiarize himself with the specific gangs and individuals involved in that case and had worked in the area: Mohamed, at para. 61. The opinions he expressed were about the tendencies of the particular gang involved, not gangs in general: Mohamed, at para. 43.

[123] In my view, the facts of this case are closer to those in R. v. Sitladeen, 2023 ONSC 5226, another first degree murder case. As in this case, there was no evidence of any relationship between the accused and the victim and no obvious motive for the killing. As in this case, the Crown sought to lead evidence of the accused’s membership in a gang on the basis that it was “essential for the narrative and evidence of motivation” (para. 15). A. O’Marra J. did not admit the evidence for the following reasons (at paras. 21-24):

In this case, while there is evidence based on Mr. Sitladeen’s lyrics and performances to support that he is a member of a street gang involved in violent activities, an inference that would be opened to the jury with an understanding of the nature of the street slang used in his compositions. Further, Mr. Sitladeen attending to Mr. Grindley’s residence masked and gloved in the company of others suggests an involvement in some nefarious activity. However, unlike in the case of Riley there is no evidence that the two others with him, Douse and Smith were gang members. In addition, there is no evidence that Mr. Grindley, the deceased was involved in a gang or any gang activity. There is no evidence he was involved directly or indirectly with Mr. Sitladeen or the other two, Douse and Smith. There is no evidence of animus between the accused and deceased or of a motive to kill him, based on Mr. Sitladeen being in a street gang.

In this instance, due to the lack of evidence of any relationship between the deceased and accused/respondent, the lyrics, in “Real Spit” and the other rap songs provide no evidence of any animus or motivation for the shooting of Mr. Grindley.

See also R. v. Wise, 2020 ONSC 7777, at para. 26.

(iv) The @hood._.politics Post

[124] The post on the @hood._.politics Instagram account on January 30, 2020, plays a significant role in the Crown’s theory. This was a re-post of the video of a person (believed by some to be Clutch) stomping on a Shopper’s Drug Mart bag, which was believed to be a grave display of disrespect towards Mr. Ali’s brother, Foolish. According to the Crown’s theory, the posting of this video was the impetus for Mr. Ali’s decision to find and kill someone in the Falstaff Marke Gang territory.

[125] The difficulty is that there is no evidence that Mr. Ali saw this post. There is no evidence that he was a follower of the account it was posted on and there is no evidence that he was one of the 82 individuals who replied to it. The only evidence connecting Mr. Ali to this post is Sgt. Hammond’s evidence that he was “tagged” in one of the replies. While the Crown indicated an intention to call evidence as to the significance of a “tag” at trial, it did not do so on the voir dire despite the obvious significance of this to its theory. I am not prepared to take judicial notice that Mr. Ali being “tagged” in a reply to a post means that he would have seen the actual post.

[126] The absence of this link makes the Crown’s theory of motive speculative, which raises the concern outlined in R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras. 100-101:

Thus, evidence of past misconduct that is woven into a speculative theory of motive does nothing more than bring in the bad character of the accused, and ought to be excluded on the basis that its prejudicial value exceeds any small probative value it might have: see, e.g. R. v. Smith, [1992] 2 S.C.R. 915, at pp. 938-941.

On the other hand, evidence that provides the trier of fact with real insight into the background and relationship between the accused and the victim, and which genuinely helps to establish a bona fide theory of motive is highly probative, even in the absence of similarity with the charged offence: see, e.g. R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70-109.

See also Wise, at para. 27. The evidence in this case does not provide any “real insight” into the relationship between the accused and the victim as there is no evidence that any existed.

(v) Narrative

[127] The Crown also submits that the gang evidence is relevant to narrative. As noted by Dambrot J. in Riley (S.C.J.), at para. 36, “‘narrative is a label that is too easily abused. Just because a piece of evidence is labelled in this way does not make it admissible.”

[128] As discussed earlier, there is often overlap between narrative and motive. Insofar as the Crown seeks to rely on the gang evidence to “make sense of a senseless killing”, it can only do so if it sheds light on the issue of motive. For the reasons I have explained, the link between the gang evidence and motive is tenuous.

(vi) Rap Music Videos and Artistic Expression

(a) Artistic Expression and Probative Value

[129] As noted earlier, Mr. Ali is a rap musician. Much of the evidence the Crown seeks to have admitted is in the form of rap music videos and social media communications that are related to or meant to promote Mr. Ali’s music, as was his appearance on the DJ Akademiks program. There are additional concerns with the probative value of this type of evidence.

[130] Rap music is a form of artistic expression. As explained in Skeete (C.A.), at paras. 182-183, this can affect the assessment of its probative value:

The lyric was also a form of artistic self-expression. Unlike the typical case involving admissions, we cannot infer, much less presume, that simply because an author has chosen to write or speak about a certain topic, she or he has acted in accordance with its terms. And so it is that, in my respectful view, the nature of the evidence -- a form of artistic self-expression -- is a factor a trial judge should consider in assessing its probative value.

In this case, the trial judge considered that the nature of the evidence was a factor for the jury to consider in assessing the weight it would assign to the evidence. I do not gainsay that conclusion. But that it may be a relevant factor for the trier of fact to consider in assessing the weight it will assign to the evidence, as we have seen elsewhere, does not deny it a place in the determination of admissibility: see White Burgess [2015 SCC 23, [2015] 2 S.C.R. 1982], at para. 45.

[131] The concerns about the challenges of distinguishing fact from fiction in forms of artistic expression in the specific context of rap music had been discussed earlier by Nordheimer J. (as he then was) in R. v. Campbell, 2015 ONSC 6199, 24 C.R. (7th) 1, at para. 25:

There is another aspect to this evidence that should not be lost sight of. It is an aspect that strongly suggests that such evidence should generally be approached with considerable caution. Rap, particularly gangster rap, often deals with the subject matter of drugs, guns, shootings, violence, and the like. The mere fact that an artist records a rap with lyrics that refers to such activities cannot be taken as an admission by the artist that they were involved in such activities, even where the lyrics are used in the first person. While this is true for music as a whole, it is particularly the case with gangster rap. There is a long history of artists singing about events as if they were personally involved in them when, in fact, they had no involvement in them at all. Absent some other evidence that would establish that the artist is truly speaking about a personal experience, there is a fundamental flaw in asserting that such first person lyrics are the truth. There is an even greater danger in asserting that they can be taken as amounting to a confession.

See also State v. Skinner, 95 A.2d 236 (N.J. 2014), at pp. 238-239, 251-252; Commonwealth v. Gray, 978 N.E. 2d 543 (Mass. 2012), at pp. 463.

(b) No Bright Line Rule

[132] However, there is no bright line rule prohibiting the admission of rap music in criminal cases, as was made clear in Mills, at para. 122:

While we accept that rap lyrics can constitute a form of artistic expression and do not dispute the appellants' suggestion that courts must be alive to the risk that they may trigger or inflame stereotypical assumptions about race and culture, these factors alone do not render them prima facie inadmissible in a criminal trial. Although they are factors that must be taken into account in determining the probative value of those lyrics and any prejudice that may flow as a result of admission, as with much art, rap lyrics can carry artistic meaning while at the same time reflect real life events. For instance, while we agree with the sentiment that no one would seriously think that just because someone writes and sings about having shot a sheriff he or she actually engaged in that act, if charged with that exact act, accompanied by other circumstantial evidence suggesting the singer actually committed that act, it may be that the lyrics would take on a much more probative posture.

While counsel for Mr. Ali invites the court to create a “bright line rule,” in my view it not the proper role of a trial court to do so. Whether such a rule ought to exist and, if so, what it should require are matters best determined by an appellate court.

[133] Whether the rap music evidence has a prejudicial effect and if so, to what extent will be discussed in the section on prejudice below. In cases where the evidence has been held to have a prejudicial effect, there are generally two situations in which courts have concluded that its probative value outweighs it.

(c) Direct Link

[134] The first is where there is other evidence that supports the inference that what is asserted in the artistic expression is in fact a reference to real events. This approach was recommended by Professor David Tanovich in “R. v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases” (2016), 24 C.R. (7th) 27, at p. 33, where he suggested that “rap lyrics should only be constructed as probative where there is a direct link between the lyrics and the crime being prosecuted.” Professor’s Tanovich’s approach was adopted by Pomerance J. (as she then was) in R. v. McCullough, 2016 ONSC 1014, at para. 38:

I agree with this approach. In order for rap lyrics to be admissible, there must be a concrete nexus between the specific details of the lyrics and the specific details of the crime. Purely generic similarities -- the lyrics are violent and the crime is violent -- will not suffice to warrant admission.

See also R. v. Patel, 2021 ONSC 2884, at para. 54; R. v. Kalonji, [2017] O.J. No. 7282 (S.C.J.), at para. 42.

[135] There are several examples of rap lyrics being admitted on the basis of a connection with the offence charged. In Skeete, a rap song about the undesirability of speaking to the police was admitted in a case where the accused was charged with murdering an individual who had testified against him. In R. v. Millard, 2017 ONSC 5275, aff’d 2023 ONCA 426, 428 C.C.C. (3d) 338, a song with the line “The bitch started off all skin and bone, now the bitch lay on some ashy stone, last time I saw her was outside the home, and if u go swimming u can find her phone” was held to be admissible in a case where there was evidence that the deceased has been cremated and her phone was missing. In R. v. Nguyen, 2021 BCSC 2174, a rap song was admitted where details of a homicide described in the song coincided with details of the homicide the accused was charged with.

[136] A requirement that there be some connection between artistic expression sought to be admitted and the facts of a particular case has been codified in some American jurisdictions. Section 352.2(a) of the California Evidence Code requires a court determining the admissibility of such evidence to consider that

… the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available.

See People v. Venable, 88 Cal. App. 5th 445 (Cal. Ct. App. 2023). Similar legislation has been introduced federally [21] and in New York. [22]

[137] There is no suggestion that any of Mr. Ali’s rap lyrics make reference to the homicide in this case or mention any details related to it. Indeed, most of them were created prior to the homicide. Rather, the Crown seeks to introduce them to establish a number of other facts, such as that the GGG is a criminal gang, that Mr. Ali is a member of it, and that the gang has a rivalry with the Falstaff Marke Gang. Many portions of the video are probative with respect to this issue. If evidence that Mr. Ali is in a gang in conflict with the Falstaff Marke Gang is admissible, the videos contain specific details that would support this notwithstanding that they are forms of artistic expression.

[138] However, the Crown also seeks to rely on the videos for more general propositions. For example, the Crown submits that the line “I got shooters left and right that’ll kill for five” (Mr. Ali uses the name “Top5”) in “Bap Bap Bap” and the line “I got some real shooters that will kill for Shirt Off” (apparently also one of Mr. Ali’s nicknames) in “Demons” show that “the Respondent has others do his bidding” and therefore supports the Crown’s theory of party liability. [23] The Crown also submits that the line “You say you got shooters/Nigga we got plenty” in “Demons” shows that “GGG is a violent street gang.” [24] There is nothing specific about these portions of the video. Rather, they appear to be evidence of a general propensity on the part of Mr. Ali to commit violence and have others do so. I will return to this portion of the videos in the discussion on prejudice later in these reasons.

(d) Assertions of Veracity

[139] The second exception, which is relied on less often, is where there is some assertion within the artistic expression to the effect that it is true. For example, some rap videos and lyrics were admitted in Dunkley (S.C.J.), at para. 39, because the accused had given an interview in which he had said that his “rapping is real.” Similarly, in R. v. Anderson, 2019 ONCJ 698, at para. 101, evidence was admitted because the accused had said in an interview that “Everything we rap about is our experience.”

[140] There is evidence in this case that Mr. Ali asserts that what he sings about is true. The Crown submits that statements to the effect that “this ain’t a game” in the videos themselves (in “Bap Bap Bap” and “Frontline”) are assertions that the contents of the songs are true. There are also such claims in the DJ Akademiks interview, where Mr. Ali repeatedly says that there is “no cap in my rap.” Indeed, a significant portion of the three-and-a-half-hour video is taken up by Mr. Ali responding to challenges from the interviewer and viewers that he is not genuine.

[141] While the contents of the DJ Akademiks interview would seem to bring this case into the exception described in Dunkley and Anderson, the evidentiary record in this case is different than it was in those cases because of the evidence of Dr. Evans.

(e) Admissibility of Dr. Evans’s Evidence on This Issue

[142] Before considering Dr. Evans’s testimony, I must address the Crown’s objections to him being qualified as an expert. As I understand it, the Crown opposes the admission of his evidence on the basis that it is unnecessary, that it violates the rule against oath helping, and that it is unreliable because he is biased. I am satisfied that none of these objections precludes the admission of Dr. Evan’s evidence on the narrow issue I am considering here. His knowledge of the origins and characteristics of drill rap are certainly outside my experience and knowledge. The bias objection appears to be based on a variety of quarrels with the way Dr. Evans answered various questions in cross-examination, none of which give rise to the type of bias that warrants exclusion of the evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 46-49. The oath-helping concerns appear to be premised on Mr. Ali giving evidence, which he did not do on the voir dire.

(f) Dr. Evans’s Evidence

[143] According to Dr. Evans, drill music originated among Black youth who were poor and uneducated and therefore circulated and promoted their music on social media. However, their success often depended on the extent to which they were viewed as “authentic,” which dictated the extent of their online influence, something which Dr. Evans refers to as “clout” (a term also used by Sgt. Hammond). The fact that “clout” can lead to social and financial success leads performers to exaggerate their gang affiliations and the extent of their involvement in violent activity, as well as other things such as their personal wealth or sexual prowess. This type of exaggeration is known as “capping.” In Dr. Evans’s opinion, “capping explains how Drillers commodify their ethnic and racial identities into desirable economic goods.” [25]

[144] I accept what Dr. Evans says about “clout chasing” and why drill artists need to “cap” in order to succeed, both in his testimony and in his academic writing: J. Evans, “We [mostly] carry guns for the internet: Visibility labour, social hacking and chasing digital clout by Black male youth in Chicago’s drill rap scene” (2020), 1 Global Hip Hop Studies 227.

(g) “Clout Chasing”

[145] While the Crown in this case alleges that Mr. Ali is an active member of a criminal street gang, it does not dispute that he is a bona fide rap artist. The Crown also does not dispute that much of what Mr. Ali says on social media, and in particular the DJ Akademiks interview, is “cap” (see para. 60 above). Sgt. Hammond also accepted that there was a lot of “clout chasing” in Mr. Ali’s videos and the DJ Akademiks interview, although he suggested that he could “sense when somebody is just doing bravado and someone is just boasting themselves to real things” by drawing on his “vast knowledge of the gang subculture.” [26]

[146] Based on Dr. Evans’s testimony, the fact that Mr. Ali asserts that the claims he makes in his rap music and on social media are true does not address the concern that arises from treating forms of artistic expression as admissions. I do not accept Sgt. Hammond’s evidence that he can “sense” when claims are true and when they are not. I accept that “capping” is a central feature of drill rap and that assertions of authenticity are not particularly meaningful.

[147] Based on the foregoing, the fact that much of the evidence the Crown seeks to have admitted is in the form of artistic expression is a factor to be considered when assessing its probative value.

(vii) Conclusion on Probative Value

[148] For the foregoing reasons, it is my view that the gang evidence has a tenuous link to the issue of motive, does not provide insight into any relationship between Mr. Ali and the deceased, and is not necessary for narrative. Furthermore, much of it is artistic expression, which creates the additional difficulty of being able to distinguish factual assertions from fiction.

[149] To be clear, I am not concluding that the evidence is not relevant. Relevance is a low threshold and is met whenever evidence tends to increase or decrease the probability of a fact in issue: R. v. Schneider, 2022 SCC 34, 474 D.L.R. (4th) 1, at para. 39. The gang evidence in this case supports an inference that Mr. Ali is a member of a gang which is in conflict with another gang in whose territory the homicide took place.

[150] In addition to this, Mr. Ali has a clear preoccupation with the housing complex where the homicide occurred. Images of the building are included in some of his videos and social media, ostensibly for the purpose of goading the rival gang. According to Sgt. Hammond, the expression “234K” that appears in some of Mr. Ali’s social media is a reference to the addresses of 20, 30 and 40 Falstaff Avenue and the “K” stands for “killer,” although he acknowledged that “it could be figuratively speaking, not literally killer.” [27]

[151] The evidence clearly has some probative value. However, for the reasons I have outlined, it is limited.

G. Prejudicial Effect

(i) Moral Prejudice

(a) Overview

[152] The Crown does not dispute that the gang evidence has a significant prejudicial effect. The Crown seeks to adduce this evidence to establish that Mr. Ali is part of a gang that is in conflict with another gang, which is said to establish motive. But the inferences the Crown seeks to have the jury draw go further than simply gang membership and rivalry. Specifically, the Crown seeks to establish that Mr. Ali is:

• a member of a criminal street gang that goes by the names “Jungle Bloods,” “GGG” and “Family Comes First”;
• “at the top of the GGG hierarchy with others who will commit violence for him”; [28]
• “not simply a rap artist, but someone who is willing to engage in actual violence”; [29]
• “a leading member of the GGG, who has at his disposal shooters willing to inflict violence on his behalf” and “kill for him”; [30]
• part of a “a group engaged in serious violence”; [31]
• supportive of individuals involved in criminal activity; [32]
• someone who revels in and celebrates the senseless murders of others, including a young person (Clutch).

(b) Policy Basis for the Exclusionary Rule

[153] In evaluating the prejudicial effect of evidence, it is helpful to consider the policy basis for the exclusionary rule, which was explained in R. v. B. (C.R.), [1990] 1 S.C.R. 717, at p. 744 (and quoted in Handy, at para. 39):

The principal reason for the exclusionary rule relating to propensity is that there is a natural human tendency to judge a person’s action on the basis of character. Particularly with juries there would be a strong inclination to conclude that a thief has stolen, a violent man has assaulted and a pedophile has engaged in pedophilic acts. Yet the policy of the law is wholly against this process of reasoning.

As noted in Handy, at para. 40:

The policy of the law recognizes the difficulty of containing the effects of such information which, once dropped like poison in the juror’s ear, “swift as quicksilver it courses through the natural gates and alleys of the body”: Hamlet, Act I, Scene v, ll. 66-67.

Thus, the greater the danger that the evidence will be used by the trier of fact to engage in the forbidden line of reasoning, that is, infer guilt from a general disposition, the greater its prejudicial effect: R. v. J.W., 2022 ONCA 306, 161 O.R. (3d) 609, at paras. 48-49; R. v. Cole, 2021 ONCA 759, 158 O.R. (3d) 680, at paras. 83-85.

[154] As noted by Nordheimer J. in Campbell, at para. 53, “[t]here can be no serious debate that evidence that links the accused to street gangs with connections to infamous gangs like the Crips and the Bloods, and their propensity for using guns and violence to achieve their ends, is highly prejudicial.” The evidence in this case, if used as the Crown intends, leads to the conclusion that Mr. Ali is part of a criminal gang that inflicts significant violence, including death, on rival gang members, and for this reason is more likely to inflict violence on any person within the rival gang’s territory. In fact, since there is evidence that the GGG has rivalries with several gangs, it would mean that Mr. Ali is more likely to inflict violence on anyone in any of those areas. While this may not be pure evidence of general propensity, it is close to it.

(c) Strength of the Crown’s Case

[155] Another factor of relevance in the assessment of prejudicial effect is the strength of the Crown’s case as there is an “elevated risk of improper propensity reasoning when the Crown case is weak to ‘jump the gap in the evidence’”: R. v. Hussein, 2023 ONCA 253, 425 C.C.C. (3d) 528, at para. 49; R. v. Hall, 2018 ONCA 185, 139 O.R. (3d) 561, at para. 65; Riley (C.A.), at para. 225. While I would not go so far as to describe the Crown’s case as “weak,” it is not strong.

(d) Rap Music

[156] In “R. v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases,” Professor Tanovich warned (at p. 42):

In assessing admissibility, courts must also factor in the very real danger that rap lyrics will trigger and inflame stereotypical assumptions triers of fact bring with them to court about race and crime. As Justice Doherty recognized in R. v. Parks [(1993), 15 O.R. (3d) 324 (C.A.)] regarding anti-Black racism:

I must accept the broad conclusions repeatedly expressed in these materials. Racism, and in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of that evil. In my opinion, there can be no doubt that there existed a realistic possibility that one or more potential jurors drawn from the Metropolitan Toronto community would, consciously or subconsciously, come to court possessed of negative stereotypical attitudes toward black persons.

In other words, because of race, the potential for prejudice is much greater than that usually considered with bad character evidence.

See also N. Okidegbe, “A ‘Bad Rap’: R. v. Skeete and the Admissibility of Rap Lyric Evidence” (2018), 66 Crim. L.Q. 294, at pp. 311-312; Mills, at para. 122.

[157] Anti-Black racism continues to be a significant issue in all aspects of Canadian society, including the criminal justice system: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 1. It is not only manifested in the form of overt discrimination, but may also take the form of unconscious biases, one of the most prevalent being the stereotype that young Black men are prone to commit violent crimes, in particular those involving guns: R. v. Smith, 2021 ONSC 6173, 75 C.R. (7th) 408, at paras 9-10. As a result, the possibility that reliance on rap lyrics may give rise to unconscious bias based on stereotypes about young Black men and violent crime must form part of the assessment of the prejudicial effect of this type of evidence: Mills, at para. 122.

(e) Possibility of a Limiting Instruction

[158] I recognize that in many cases, a limiting instruction will serve to limit the prejudice that arises from evidence of discreditable conduct. Obviously, this will not be so in every case, or else there would be no need for an admissibility inquiry.

[159] Whether prejudice can be cured by a limiting instruction will depend on “the nature of the evidence led, the nature of the potential prejudice in the context of the evidence and the issues in the trial”: R. v. Blake, 2023 ONCA 220, 166 O.R. (3d) 641, at para. 25. In this case, given the potential for the trier of fact to engage in the forbidden line of reasoning, including because of unconscious bias, I do not believe that any limiting instruction could limit the prejudicial effect of the evidence.

[160] For the foregoing reasons, I conclude that the moral prejudice arising from the gang evidence is significant: R. v. Charlton, 2015 ONSC 5944, at para. 56.

(ii) Reasoning Prejudice

[161] The evidence of the actual homicide shows that a person got out of a car, ran to Mr. Hashi’s car, shot him several times, and then fled. It is clear that this was a murder, and I expect that a jury will have little difficulty in concluding that it was planned and deliberate. The central issues the jury will have to contend with are whether the Crown has proven that Mr. Ali is the person in the back seat of the car and if so, what role, if any, he had in the murder.

[162] The gang evidence the Crown seeks to have admitted is voluminous. It relates to events going back as far as six years before the homicide and includes rap videos made over the course of three years, numerous social media posts, and an expert witness whose reports runs to 43 pages and whose testimony on the voir dire occupied the better part of four days of court time.

[163] If the gang evidence is admitted, the jury will have to spend considerable time considering a number of side issues: Is the GGG a criminal street gang? Is it the same gang as the Jungle Bloods? Is Mr. Ali a member of the gang? If so, does he have a leadership position? Is the GGG in conflict with the Falstaff Marke Gang? Were the killings of Marke, Foolish and Clutch part of the conflict? Were the shootings in July and August 2020 part of the conflict? Which of the claims made by Mr. Ali during his music videos and the DJ Akademiks interview are true and which are “cap”? What is the meaning of various social media posts? Did Mr. Ali see the @hood._.politics post on January 30, 2021? How reliable is Sgt. Hammond’s evidence? What support is there for his opinions?

[164] Given the limited probative value of this evidence, there is, in my view, a significant danger that the jury will be required to spend considerable time and energy resolving factual issues that are far removed from the central issues at this trial. While the reasoning prejudice associated with the evidence does not, by itself, outweigh the probative value, it is part of the overall prejudicial effect of the evidence.

H. Final Balancing

[165] For the reasons I have explained, while the gang evidence has some probative value given Mr. Ali’s preoccupation with the housing complex on Falstaff Avenue, it is limited because of the tenuous link it has to the Crown’s theory of motive. The evidence shows that Mr. Ali has an animus towards members of the Falstaff Marke Gang, but extrapolating that animus to any person living within that gang’s territory involves a degree of speculation.

[166] On the other hand, the evidence has a marked prejudicial effect. It portrays Mr. Ali as a violent gang member with little regard for human life and who revels in the senseless killing of others. The risk that a jury will misuse this evidence and convict Mr. Ali because of his disposition is significant: Abbey (S.C.J.), at paras. 37-38.

[167] Counsel spent considerable time on the voir dire arguing about whether the evidence does or does not establish that the GGG is a street gang, and that Mr. Ali is a member of it. For the reasons explained earlier, I do not view this as the central issue on the admissibility inquiry. While these would be issues for the jury to determine if the evidence is admitted, I wish to be clear that my decision as to admissibility is not based on any finding that the evidence does not support the inferences the Crown seeks to have drawn. To the contrary, in my view it does support those inferences. That is why the evidence is so prejudicial.

[168] I recognize that evidence of gang membership has been admitted in several cases, many of which have been referred to in these reasons. However, each case turns on its own facts. In this case, the probative value of the evidence is outweighed by its prejudicial effect. It is therefore inadmissible.

[169] As the evidence of Sgt. Hammond relates only to the gang evidence, it has no relevance if that evidence is not admitted and is likewise inadmissible. There is therefore no need for me to consider whether Sgt. Hammond should be qualified to give opinion evidence.

III. ANALYSIS – INTERCEPTED COMMUNICATION

A. Probative Value

[170] As with the gang evidence, the admissibility of this evidence depends on whether its probative value outweighs its prejudicial effect.

[171] The probative value of the evidence, according to the Crown, is that it amounts to an admission of Mr. Ali’s involvement in the murder of Mr. Hashi. During the call, immediately after discussing his court case, Mr. Ali referred to a line from a song, “Larry out the car, take his life,” followed closely by a statement that he remembers “that night” and that he and others were at a recording studio and that he said, “Let’s go” to them. Given that the person who killed Mr. Hashi came out of a car and given that there was evidence that Mr. Ali was at a recording studio that night, the Crown submits that this can be interpreted as some sort of acknowledgement of his role in the homicide.

[172] As noted earlier, the fact that the conversation makes reference to a rap song, which is a form of artistic expression, is relevant to an assessment of its probative value. However, in this case, it is not the lyric by itself which is said to have probative value. Rather, it is the lyric in combination with Mr. Ali’s mention of “that night” which does so, thereby linking the evidence to the facts of this case.

[173] I agree with counsel for Mr. Ali that the conversation is ambiguous and open to more than one interpretation. As he points out, Mr. Ali could simply have been discussing the recording of the song. However, in my view, it would be open to the jury to interpret the call in the manner suggested by the Crown.

B. Prejudicial Effect

[174] Counsel for Mr. Ali submits that the evidence is prejudicial for several reasons: (1) it suggests that Mr. Ali was involved in another homicide; (2) it will reveal to the jury that he was in custody; (3) it will reveal to the jury that his calls were being intercepted; (4) it will result in reasoning prejudice because it will require the defence to call a significant body of evidence in response.

[175] I do not agree that the evidence suggests that Mr. Ali was involved in another homicide. The jury will be told that the line is from a song that has nothing to do with this case. If necessary, the jury could also be told that there is nothing to suggest that the song was about real events.

[176] I accept that there may be some prejudice associated with the jury knowing that Mr. Ali was in custody, although it may be that it is not necessary for the jury to know where Mr. Ali was during the call. However, it is not unusual for jurors to be aware of this and in my view, this is the sort of prejudice that can be cured with an appropriate judicial instruction. The jury can be told that the fact that Mr. Ali was in custody is in no way evidence of his guilt and is not something that should be considered.

[177] With respect to the fact that Mr. Ali’s communications were being intercepted, in my view it would not be obvious to the jury that this is not something that routinely occurs in a custodial setting, nor would it be apparent that it was Mr. Ali and not one of the other parties to the conversation who was the target of the interception. Any prejudice arising from this can also be cured by a judicial instruction.

[178] With respect to reasoning prejudice, it would of course be open to counsel to call whatever evidence he deems appropriate as part of the defence case. It would also be open to him to simply argue that on its face, the conversation is ambiguous. In my view, the fact that evidence could result in a large volume of defence evidence is generally not the type of reasoning prejudice that should be considered as part of the admissibility analysis. Rather, the analysis should be restricted to additional evidence that would be necessary or inevitable if the evidence at issue is admitted. Were it otherwise, the defence could almost always resist the admission of bad character evidence by pointing to evidence it could possibly call in reply.

C. Balancing

[179] Having considered the evidence, I am of the view that its probative value outweighs its prejudicial effect, and it will be admitted.

IV. DISPOSITION

[180] The evidence respecting Mr. Ali’s membership in a gang is not admissible. The evidence of the intercepted call on March 21, 2022 is admissible.

[181] This ruling is subject to being revisited should there be a material change in circumstance arising out of the evidence that is adduced, or the positions taken by the parties.

Justice P.A. Schreck

Released: September 19, 2024

Footnotes

[1] In written materials filed prior to the hearing of the application, the Crown took the position that there was no evidence linking “the Respondent directly, or the GGG generally” to Marke’s murder: Applicant’s Factum – Omnibus Application Re: Expert Evidence and Social Media/Rap Videos, at para. 162. However, during oral submissions, Crown counsel agreed that it was her theory that someone from the GGG travelled to Alberta to shoot Marke: Submissions, Transcript – July 19, 2024, at p. 7.

[2] As with Marke, the Crown’s position on this issue appears to have shifted: Submissions, Transcript – July 19, 2024, at p. 7.

[3] The post was made an exhibit in the form of a video which showed some of the replies, although not the one which “tagged” Mr. Ali. According to the Crown’s written material, that reply was from someone identified as “mooonlannnd” and it said “@top5 you wasn’t capping last guy that did foolish did indeed got bodied.” The Crown indicated in its written material that it intended to call evidence at trial about what a “tag” is and what effect it has in terms of notifying the individual who is tagged, but did not call any such evidence on the voir dire, nor was there any indication as to what the evidence would be: Applicant’s Factum: Omnibus Application Re: Expert Evidence and Social Media/Rap Videos, para. 96, fn. 92.

[4] Appendix “A”: Applicant’s Position on Individual Music Videos and on Akademiks Interview.

[5] Ibid.

[6] Ibid.

[7] Evidence of Sgt. Hammond, Transcript – June 3, 2024, p. 58.

[8] Appendix “A”: Applicant’s Position on Individual Music Videos and on Akademiks Interview.

[9] This video was not initially part of the Crown’s application but was added after Sgt. Hammond referred to it in his testimony as being part of his basis for believing that the GGG is a criminal street gang.

[10] While it was initially the Crown’s theory that this video was intended to show disrespect for Foolish, Sgt. Hammond acknowledged in cross-examination that this was likely just a video of cash that happened to be in a Shopper’s Drug Mart bag and that it had no relevance: Evidence of Sgt. Hammond, Transcript – June 7, 2024, at p. 67.

[11] These areas were provided to the court by Crown counsel in writing and are reproduced verbatim.

[12] At this point, the defence seeks to have Dr. Evans qualified only on the voir dire.

[13] These areas were provided to the court by defence counsel in writing and are reproduced verbatim.

[14] Applicant’s Factum: Omnibus Application Re: Expert Evidence and Social Media/Rap Videos, at para. 6.

[15] Applicant’s Factum: Omnibus Application Re: Expert Evidence and Social Media/Rap Videos, at para. 3.

[16] Evidence of Sgt. Hammond, Transcript – June 3, 2024, at p. 55.

[17] Evidence of Sgt. Hammond, Transcript – June 7, 2024, at p. 3.

[18] Evidence of Sgt. Hammond, Transcript – June 7, 2024, at p. 6.

[19] Evidence of Sgt. Hammond, Transcript – June 7, 2024, at pp. 8-9.

[20] Sgt. Hammond’s Expert Report (Anticipated Evidence), at pp. 40-42.

[21] https://www.congress.gov/bill/117th-congress/house-bill/8531/text.

[22] https://legiscan.com/NY/text/A00127/2023.

[23] Appendix “A”: Applicant’s Position on Individual Music Videos and on Akademiks Interview.

[24] Ibid.

[25] Ex. 16: Dr. Evans’s Expert Report, at para. 35.

[26] Evidence of Sgt. Hammond, Transcript – June 4, 2024, at p. 25; June 6, 2004, at p. 3.

[27] Evidence of Sgt. Hammond, Transcript – June 3, 2024, at p. 58.

[28] Appendix “A”: Applicant’s Position on Individual Music Videos and on Akademiks Interview.

[29] Ibid.

[30] Applicant’s Factum: Omnibus Application Re: Expert Evidence and Social Media/Rap Videos, at paras. 3, 86.

[31] Ibid., at para. 55.

[32] Ibid., at para. 207.