Court of Appeal for Ontario

Date: 2022-06-28 Docket: C67544

Before: Benotto, Miller and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent And: Jermaine Dunkley, Appellant

Counsel: Nathan Gorham and Breana Vandebeek, for the appellant Alexander Alvaro, for the respondent

Heard: June 1, 2022

On appeal from the conviction entered on October 18, 2017 by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting with a jury.

Thorburn J.A.:

OVERVIEW

[1] On November 24, 2013, Reshane Hayles-Wilson shot Neeko Mitchell to death outside the North Kipling Community Centre. The entire shooting was caught on video.

[2] The Crown theory was that the appellant encouraged Mr. Hayles-Wilson and Sheldon Tingle to kill Mr. Mitchell because of Mr. Mitchell’s alleged ties to Rico Gayle. Mr. Gayle was suspected of killing the appellant’s brother some months before. The Crown alleged that Mr. Tingle lured Mr. Mitchell outside the Community Centre where he was shot by Mr. Hayles-Wilson, on the instructions of the appellant.

[3] It was agreed that the appellant was a leader of the Monstarz street gang. The Crown alleged that Rico Gayle was a member of the rival Lanes gang. The Crown alleged that Messrs. Tingle and Hayles-Wilson were also members of the Monstarz gang. Mr. Mitchell was not a member of any gang.

[4] Messrs. Hayles-Wilson, Tingle and the appellant were all charged with first degree murder. Mr. Hayles-Wilson was tried separately and convicted of second degree murder. Mr. Tingle and the appellant were then tried together (“the trial”).

[5] Before the appellant’s trial began, Code J. (“the motion judge”) heard a pre‑trial motion to address some contested evidence. The motion judge allowed evidence of the appellant’s gang affiliation, his alleged animus toward Mr. Mitchell, and information about the gang involvement in the murder of Mr. Mitchell and that of the appellant’s younger brother a few months earlier.

[6] Mr. Tingle was acquitted and the appellant was convicted of first degree murder.

[7] The appellant seeks an acquittal and, in the alternative, a new trial. He claims:

a. The motion judge committed an error of law by failing to properly assess the probative value and prejudicial effect of the gang evidence in light of the disputed issues and the evidence admitted at trial;

b. The motion judge’s admission of this gang evidence, the severance of Mr. Hayles-Wilson’s trial from that of Mr. Tingle and the appellant, and the trial judge’s refusal to permit the jury to hear the Hayles-Wilson verdict, caused a miscarriage of justice; and

c. The verdict is unreasonable as the evidence was insufficient to support a reasonable inference that Mr. Dunkley intended to encourage Mr. Hayles‑Wilson to kill Mr. Mitchell or knew Mr. Hayles-Wilson would shoot Mr. Mitchell and is therefore likely to have resulted from moral prejudice arising from his gang affiliation.

[8] For the reasons that follow, I conclude that the motion judge made no error in admitting the gang evidence, there was no miscarriage of justice, and the verdict was not unreasonable. As such I would dismiss the appeal.

[9] I will begin my analysis with a summary of the evidence.

THE EVIDENCE

[10] As noted above, the Crown theory was that the appellant, leader of the Monstarz gang, orchestrated Mr. Mitchell’s murder in retaliation for his brother’s murder by Mr. Gayle, a member of the rival Lanes gang.

The Circumstances of the Appellant’s Brother’s Murder

[11] The circumstances of the murder of the appellant’s brother on July 28, 2013 are set out below.

[12] During the day on July 28, Mr. Gayle was at a club in Mississauga with Mr. Mitchell and some associates. Later that night, Messrs. Gayle and Mitchell were seen at the Bovaird Banquet Hall in Brampton. Mr. Mitchell greeted Mr. Gayle as he arrived and they both spoke to Mr. Mitchell’s father. Mr. Gayle and Mr. Mitchell also interacted at other points during the evening. The shooting happened at the bar of Bovaird Banquet Hall. Mr. Mitchell was standing about 40 feet away. After the shooting, Mr. Mitchell stumbled near where the appellant’s brother was shot, before he and his father left the banquet hall.

The Appellant’s Comments about his Brother’s Murder

[13] Thereafter, in a series of wiretapped phone calls, the appellant stated that his brother was killed because of “street politics” and “rumour”. In rap lyrics found on the appellant’s cellphone he said he would “murda” those responsible for his brother’s killing and that, “when I’m done wit em they gon throw me under da jail anybody can get it now it’s up in da air fuck da police I dun lost my lil broski…for my lil bro over his casket made an oath.” The appellant stated in an interview about one of his YouTube videos that he rapped about “real life” events. The appellant told the interviewer that “My rapping is real. It’s what’s going on around me so obviously it involves the people around me sometimes…”

The Circumstances of Mr. Mitchell’s Murder

[14] Mr. Mitchell attended the North Kipling Community Centre at about 8:00 p.m. on November 24, 2013, to see his brother play basketball. Mr. Hayles-Wilson, Mr. Tingle and the appellant were standing around the front desk area of the Community Centre when Mr. Mitchell arrived.

[15] Surveillance video captured Mr. Mitchell speaking briefly to the appellant and Mr. Hayles at the front desk area at about 8:03 p.m., then moving to the gymnasium. Three minutes later, video shows Mr. Hayles-Wilson speaking to the appellant and another person and gesturing towards the gymnasium. Someone inside the gymnasium testified that a man, whom he could not identify, stood at the gymnasium doors and gestured to Mr. Mitchell, whereupon Mr. Mitchell began to leave the gymnasium. Mr. Mitchell walked from the gymnasium area, past the appellant and Mr. Hayles-Wilson in the front desk area and exited the Community Centre where he met Mr. Tingle, who had had gone out the same way. The two shook hands.

[16] After Mr. Mitchell exited, the appellant seemed to say something to Mr. Hayles-Wilson whereupon Mr. Hayles-Wilson followed Mr. Mitchell out the door. Mr. Hayles-Wilson came face to face with Mr. Mitchell, pulled a handgun from his waist under his clothing, and shot Mr. Mitchell eight times. After shooting the appellant, Mr. Hayles-Wilson, Mr. Tingle, and others fled. Mr. Mitchell died at the scene from his gunshot wounds.

The Appellant’s Reaction to his Baby Mother’s Post about Mitchell’s Death

[17] In a series of cellphone calls between the appellant and his “baby mother”, the appellant appeared angry over two emojis that she had left on an Instagram page memorializing Mr. Mitchell. He called her “a fucking traitor” and accused her of being friends “with people that killed my bro.”

[18] The Crown also tendered wiretap intercepts where the appellant spoke with Mr. Hayles-Wilson, directed Mr. Hayles-Wilson in the conduct of his defence, told him, “we could always get you another lawyer,” and said that the police might arrest another person and, “they’re gonna try and make him talk on me”.

Detective Kerr’s Evidence about Gangs

[19] At the appellant’s trial, Detective Steven Kerr, a member of the Toronto Police Service, provided expert opinion evidence on urban street gangs with a focus on the Monstarz gang (of which the appellant admitted he was a leader). He also testified about various music videos featuring the appellant and other members of the Monstarz gang, including Mr. Hayles-Wilson.

[20] Detective Kerr was asked about one of the appellant’s music videos that included the lyrics, “seen my little brother die, tell them that it’s on sight.” Det. Kerr explained his understanding of the term “on sight”, stating that, “[if] you see somebody from that rival group… it’s on sight inflict violence on that person that’s there … that’s our rival no need to look around at – you got the opportunity, take advantage of that opportunity.” On cross-examination, Detective Kerr agreed that the term, “on sight” could simply be a song lyric. Detective Kerr believed that the appellant’s brother’s death was linked to a feud between rival street gangs, Monstarz and the Lanes. Detective Kerr said that other conversations from 2015 led him to believe the appellant was concerned that members of his gang were going to turn on him and implicate him in Mr. Mitchell’s killing.

THE MOTION

[21] The Crown took the position that the murder of Mr. Mitchell was first degree murder because it was “planned and deliberate” pursuant to s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46, and/or was committed “for the benefit of, at the direction of or in association with a criminal organization” pursuant to s. 231(6.1).

[22] The Crown sought to tender (a) investigative evidence about the appellant’s brother’s murder; (b) evidence as to the appellant’s understanding that street politics and gang affiliation was at play in his brother’s murder and his comments about this; (c) expert evidence from Detective Kerr about street gangs and the appellant’s social media posts about the street gang Monstarz; (d) evidence of the appellant’s animosity when seeing that his “baby mother” posted her condolences on hearing of Mr. Mitchell’s death; (e) the introduction of rap videos of the appellant performing and wiretaps between the appellant and others that the Crown suggested could raise an inference that the appellant was accepting some responsibility for Mr. Mitchell’s murder; and (f) wiretap evidence of the appellant and his mother in which they expressed the view that Mr. Mitchell was one of those responsible for the appellant’s brother’s murder.

[23] The Crown sought to tender this evidence to:

a. Prove that the appellant had a motive to kill Mr. Mitchell;

b. Show that he had intense animus towards Mr. Mitchell; and

c. Establish that Messrs. Tingle and Hayles-Wilson were the kind of associates who would be inclined to follow the appellant’s instruction to kill Mr. Mitchell.

[24] A large body of evidence was initially tendered by the Crown, but by the time the motion was heard, the evidence tendered by the Crown became narrower and the appellant conceded the admissibility of some of it, subject to editing and form.

[25] On the motion, counsel agreed that:

a. Monstarz is a criminal organization and a subset of the Mount Olive Crips;

b. The appellant was one of the leaders of Monstarz;

c. Monstarz was the target of a criminal investigation called Project Pharaoh in which the appellant and Mr. Hayles-Wilson were persons of interest and Mr. Tingle was not; and

d. The appellant was arrested as part of Project Pharaoh and Messrs. Hayles-Wilson and Tingle were not.

[26] The appellant conceded that evidence relating to the murder of the appellant’s brother was admissible as it had probative value in relation to the alleged motive for the murder of Mr. Mitchell. The appellant also conceded that most of the appellant’s social media posts and certain wiretaps were admissible as evidence of the appellant’s state of mind, and of whether he had animus toward those responsible for his brother’s murder, including any inferences as to whether he believed that Neeko Mitchell was involved.

[27] The motion judge noted that,

“Evidence that is relevant to motive and/or animus towards the deceased, in a murder case, requires balancing the legitimate probative value of the evidence in relation to issues such as identity and state of mind (or some other element of the offence) against potential prejudicial effect that may be caused if the evidence involves bad character or extrinsic misconduct by the accused. Prejudicial effect, in this context, includes both moral prejudice and reasoning prejudice as those terms are used in the case law concerning similar fact evidence. See, generally: R. v. F.F.B., 79 C.C.C. (3d) 112 at paras. 71-3 (S.C.C.); R. v. Moo, 2009 ONCA 645, 247 C.C.C. (3d) 34 at paras. 96-100 (Ont. C.A.); R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16 at paras. 217-235 (Ont. C.A.); R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181 at paras. 54-6 (Ont. C.A.).”

[28] The appellant objected, however, to the admission of the following details that the Crown suggested showed a possible gang-related motive: Mr. Mitchell and Mr. Gayle both attended a party at a club prior to attending the place where the appellant’s brother was murdered; Mr. Gayle was associated with the Lanes and Jamestown neighbourhoods as he lived there and his branded clothing line is associated with affiliated gangs from these neighbourhoods; Mr. Gayle and Mr. Mitchell shook hands and hugged and were standing together moments before Mr. Gayle walked up to the appellant’s brother and shot him; the appellant’s half‑brother who was present, and was questioned by the police shortly after the appellant’s brother’s murder said the murder was due to “politics… street politics”; and the appellant in a wiretap, said “our politics” was the reason for his brother’s murder.

[29] The motion judge held however, that these details, which when viewed in the context of the totality of the evidence, could give rise to a reasonable inference that there may have been a gang-related connection to the appellant’s brother’s murder, and could explain the appellant’s comment that “our politics” was the reason for his brother’s murder. He held that it also provided circumstantial evidence of a possible gang-related connection to the murder of Mr. Mitchell. As such he allowed that evidence to be introduced at trial. The motion judge also allowed evidence of the appellant’s lyrics from his rap songs that related to his reaction to his brother’s death and his belief as to who was responsible. The motion judge excluded some of the other wiretap evidence and all of the wiretap evidence of communications between the appellant and his mother.

[30] The motion judge also admitted the expert evidence of Detective Kerr as he found Detective Kerr to be a reliable and unbiased witness. He accepted the core aspects of his testimony about gang culture as “entirely reliable,” and noted that the most prejudicial aspect of the gang evidence, that is, that the appellant was a leader of the Monstarz gang, had already been admitted by the appellant. He did not accept that the characteristics of street gangs are well known to jurors.

ISSUES RAISED ON APPEAL

[31] As more fully set out at paragraph 7 above, the issues raised on this appeal are whether (i) the motion judge erred in admitting the gang evidence; (ii) admission of the gang evidence, severance of Mr. Hayles-Wilson’s trial from that of Mr. Tingle and the appellant, and/or the trial judge’s refusal to permit the jury to hear the Hayles-Wilson verdict, caused a miscarriage of justice; and whether (iii) the verdict was unreasonable.

ANALYSIS AND CONCLUSION

Gang Evidence

[32] The appellant claims the motion judge erred by admitting evidence of the appellant’s gang membership and activities to advance the Crown theory of his motive to kill Mr. Mitchell. He argues that the gang evidence was not probative in light of other, less prejudicial evidence that was already sufficient to advance the Crown’s theory of motive – for instance, that he was angry at the death of his brother. He further submits that the gang evidence could have prejudiced jurors by causing them to believe that the appellant was of bad character, or that the key issue at trial was related to gang rivalry.

[33] I disagree that the motion judge erred in this way.

[34] Bad character evidence is presumptively inadmissible, but it may be admitted where the Crown demonstrates that it is relevant to an issue at trial and that its probative value outweighs its prejudicial effect: R. v. Oppong, 2021 ONCA 352, 156 O.R. (3d) 401, at para. 16, leave to appeal ref’d, . The utility of the evidence lies in its ability to advance or refute a live issue pending before the trier of fact: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 73. Therefore, probative value must be assessed in light of the issue at trial to which the evidence relates – for instance, the accused’s motive or animus – not in the abstract: Handy, at para. 73.

[35] It is incumbent on the Crown to identify the live issue in the trial to which the evidence sought to be introduced is said to relate.

[36] The motion judge correctly noted that the Crown sought to adduce the gang evidence to establish motive or animus on the part of the appellant toward the victim, Mr. Mitchell, and a desire for retribution for his brother’s gang-related murder.

[37] He also articulated the prejudicial effect of adducing evidence of gang affiliation: Handy and R. v. Shafia, 2016 ONCA 812, [2016] O.J. 5627 (C.A.) at paras. 254-255. He was alive to the risk that jurors could take the appellant’s membership or activities in a gang to be evidence of his bad character. He articulated the prejudicial effect of adducing evidence of gang activities, including that it risked conveying the appellant’s “general criminal disposition and lifestyle”.

[38] The motion judge held that in order to decide whether to permit the evidence, he would need to weigh the probative value against the moral and reasoning prejudice it risked creating. He then proceeded at great length, to assess all the evidence the Crown sought to adduce and weighed its probative value and prejudicial effect.

[39] While he recognized that evidence of an accused’s criminal gang activity is highly prejudicial, he noted that the appellant’s gang ties were relevant to the motive to murder Mr. Mitchell which the Crown suggested was in retaliation for the murder of his brother. He also noted that in this case, the appellant admitted the most prejudicial aspect of the gang evidence: that he was a leader of a criminal organization involved in drug trafficking and other criminal activity. (He restricted the evidence of Monstarz activity to drug trafficking and the appellant’s own criminal record). Moreover, the parties had agreed that evidence of the appellant’s brother’s murder was admissible, that the basic facts of his murder had no prejudicial effect, and that many of the appellant’s social media posts about his brother’s murder (as edited) could be adduced.

[40] The motion judge correctly noted that expert opinion evidence about the characteristics of street gangs is often admitted in criminal organization prosecutions and cases that allege gang rivalry and retaliation, as many characteristics of gangs are not known to the public.

[41] Contrary to the appellant’s assertion, the motion judge did not assess the gang evidence outside the context of the issue of motive or animus. On the contrary, he understood the context of the appellant’s leadership in a criminal organization, and disputed evidence of his alleged animus toward Mr. Mitchell, his desire to avenge his brother’s death, and his belief that Mr. Mitchell was associated with his brother’s death. The appellant’s leadership in the Monstarz gang was only one piece of this evidence. However, the appellant’s alleged belief that his brother was killed by a rival gang member and that his death was to be avenged was critical to establish a motive for his involvement in the murder and more evidence was needed to substantiate the Crown theory as to the appellant’s alleged motive. As such it was highly probative.

[42] In balancing the probative value and prejudicial effect of the evidence, the motion judge excluded a good deal of the evidence the Crown sought to adduce. The motion judge excluded all of the rap videos and most of the rap lyrics in those videos except the following, as he held they demonstrated a significant nexus to the murder of Mr. Mitchell:

i. A portion of an interview in one of the videos where the appellant stated “my rapping is real”;

ii. Lyrics written just three weeks after his brother’s death that threatened violence against his brother’s killers;

iii. One lyric from a video entitled “Trap”: “Seen my little brother die, tell them that it’s on-sight… feel it when my Mom cries”, published three months after the appellant’s brother’s murder and one month before Mr. Mitchell’s murder;

iv. Expert evidence from Detective Kerr (see below) that “on-sight” meant that “referring to seeing your enemies, it will be on (fight, shoot) without questions”;

v. One lyric from a video published a few weeks before Mr. Mitchell’s murder: “They shot my brother… Ever since my bro died, I’ve been feeling like I lost it”; and

vi. Still photos from the excluded videos for the purpose of proving association with others who appeared, including Mr. Tingle.

[43] Moreover, although the motion judge found the evidence admitted to be highly relevant circumstantial evidence about the appellant’s possible motive and involvement in the killing, he nonetheless imposed limits on the quantity of this evidence so as not to “overwhelm the trier of fact and acquire undue prominence”. He also placed limits on what Detective Kerr could say and what language he could use. When instructing the jury, the trial judge cautioned the jurors against improperly inferring guilt from evidence of the appellant’s bad character.

[44] There was no error in principle in admitting the gang evidence nor was there any material misapprehension of evidence. As such, deference is owed to the trial judge’s decision to admit evidence of what the appellant’s gang ties were, his animus to Mr. Mitchell, his belief that Mr. Mitchell might be involved with his brother’s murder, and expert evidence related to gangs: R. v. Oppong, at para. 34; R. v. Gager, 2020 ONCA 274, at para. 29; and R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 254-55.

[45] For these reasons I do not accept the first ground of appeal.

No Miscarriage of Justice

[46] Nor was there any miscarriage of justice caused by the Mr. Hayles-Wilson’s trial being severed from that of Messrs. Tingle and the appellant, or the jurors being instructed not to consider Mr. Hayles-Wilson’s conviction for second degree murder.

[47] The severance of Mr. Hayles-Wilson’s trial was done on the consent of all parties. It arose as a result of Mr. Hayles-Wilson filing a s. 11(b) motion seeking an earlier date for trial, as Mr. Hayles-Wilson was arrested well before Messrs. Tingle and the appellant. To accommodate him, the Crown severed his proceeding. There was nothing improper.

[48] As for whether the trial judge erred by instructing jurors not to consider Mr. Hayles-Wilson’s second degree murder verdict, where there are separate trials, different jurors, and different instructions given, the jury should be instructed to ignore evidence of the verdict in the other trial as it is not relevant to the case before them: Remillard v. The King (1921), 62 S.C.R. 21; R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 48. As such, the trial judge correctly held that Mr. Hayles-Wilson’s case was not relevant to the jury’s consideration of the appellant’s case.

[49] I do not accept the second ground of appeal.

The Verdict was not Unreasonable

[50] A verdict is unreasonable within the meaning of s. 686(1)(a)(i) of the Criminal Code if, on all the evidence, it is one that no properly instructed jury, acting judicially, could reasonably have rendered: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26.

[51] The appellant points to a lack of evidence that he orchestrated the death of Mr. Mitchell. He testified that he did not believe Mr. Mitchell had anything to do with his brother’s death, he had only a minor association with Messrs. Tingle and Hayles-Wilson, and he did not order Mr. Mitchell’s shooting.

[52] However, there was other evidence that the appellant was openly angry about the murder of his brother and expressed a belief that his brother was killed because of “politics”. The appellant admitted he was the leader of a criminal gang. There was evidence connecting the appellant’s brother’s killer to a rival gang. Lyrics found on the appellant's telephone suggested that he had made an oath that he would kill those responsible for his brother’s murder. There was also evidence Mr. Mitchell was associated with the killer, that Mr. Mitchell was at the banquet hall on the night of the killing and had associated with the killer, and that the appellant was angry with Mr. Mitchell because he believed that Mr. Mitchell was involved in his brother’s killing (based on his exchange with the mother of his child).

[53] There was also evidence that the appellant was connected to the man who shot Mr. Mitchell, Mr. Hayles-Wilson, and that he was in close contact with Mr. Hayles-Wilson in the moments before the shooting.

[54] Taken together, there was some basis upon which a reasonable jury properly instructed could have found the appellant guilty of the first degree murder of Mr. Mitchell.

[55] Furthermore, there is no reason to believe that a reasonable jury, properly instructed, could not possibly have rendered the three different verdicts imposed on Messrs. Hayles-Wilson, Tingle and the appellant.

[56] Because of the “wide latitude” afforded to a jury to assess the evidence, the onus of establishing that a verdict is unreasonable on the basis of inconsistency with other verdicts is “a difficult one to meet”: R. v. Pittiman, 2006 SCC 9, 206 C.C.C. (3d) 6, at paras. 7, 9-10. It is even more difficult in the case of multiple accused charged with the same offence, because of the often wider scope for differing verdicts: Pittiman, at para. 10.

[57] The case against the appellant was stronger than the case against Mr. Tingle: the jury may have had a reasonable doubt as to whether Mr. Tingle lured Mr. Mitchell outdoors, and even if he did, whether he was aware of the purpose for which he was asked to send him out, or a reasonable doubt may have arisen from his testimony.

[58] For these reasons, I conclude the verdict was not unreasonable.

[59] I would dismiss the appeal.

Released: June 28, 2022 “M.L.B.” “J.A. Thorburn J.A.” “I agree. M.L. Benotto J.A.” “I agree. B.W. Miller J.A.”