R. v. Gager, 2012 ONSC 388

minicounsel

Footnotes

Detective Backus’ curriculum vitae was filed as part of the Crown’s Application Record on its application to have him qualified as an expert witness, to which these applications are ancillary.
A general presentation concerning wiretap authorizations in the context of gang related investigations.
Understanding that they would be working at an obvious disadvantage by virtue of not being privy to the information under discussion.
In the interests of brevity, those rulings are not included in these reasons.
April 7, 2010, Transcript of Proceedings, Evidence of Backus, p. 30.
Ibid.
Ibid., p. 63.
Ibid. p. 65.
Mr. Fishbayn included as an exemplar in his application record a copy of one such debriefing form. This form, I am advised, formed part of Crown disclosure in the prosecutions arising from Project XXX and subsequently in this case, but, given some uncertainty as to whether the form ought to have been disclosed, all counsel agreed that it should be treated for purposes of these applications as confidential. Originally found at Tab 3 of Mr. Fishbayn’ application record, I ordered that it be removed and made a sealed exhibit. When the material was later produced to the court, it was learned that another form, slightly different in format from Exhibit 3, had been used by other officers. For purposes of the disposition of these applications, nothing turns on those differences.
April 7, 2010, Transcript of Proceedings, Evidence of Detective Backus, p. 20.
Ibid., p. 68.
Ibid., p. 35.
Named Person, para. 19.
I note, parenthetically, however, while disclosure of the CI database material upon which Backus relies may not be required pursuant to these applications, nothing in these reasons should be taken as indicating that the witness will be permitted to rely on CI material in giving such opinions as he may be permitted to give, without that material having been disclosed. In other words, when I am obliged on the Backus application to determine what opinions the officer may give, the cost, as it were, of non-disclosure may well be a limitation on what Backus can give by way of opinion evidence.
Obviously, it is open to the defence on the Backus application to argue respecting any opinion Backus offers that it is so speculative that its probative value is outweighed by its potential prejudicial effect.
June 1, 2010, Transcript of Proceedings, Evidence of Detective Backus, p. 9.
April 7, 2010, Transcript of Proceedings, Evidence of Detective Backus, p. 16.
Ibid., p. 23.
The answers, in my view, fall into the category of material that might tend to identify the CI.
As noted above, Detective Backus created two PowerPoints and both were the subject of this ruling. At the first stage, the application proceeded on the basis that Backus had created only one PowerPoint presentation. However, when the material was produced at the second stage of the procedure, it was learned that he had in fact created two separate PowerPoint presentations.
The extensive book of authorities filed on the Backus application is replete with cases where this sort of evidence has been adduced. Usually, though not invariably, it is introduced through a police officer. Indeed, as reflected in several of the cases upon which the Crown relies, Backus himself has testified before in this capacity.
The only part of the proceeding that took place ex parte occurred when I listened to an intercepted telephone conversation that formed part of one of Backus’ PowerPoints, now Exhibit 3(a) on this voir dire. I had, on consent, earlier accessed certain audio portions of the exhibit in my chambers. For technical reasons, I was unable to access the segment in question on my computer and required the assistance of Crown counsel and the use of their computer to do so; that took place in open court in the absence of the accused and their counsel, but was duly recorded. The only conversation in the absence of the accused or their counsel concerned making the computer play the intercept in question; no discussions took place concerning the content of the intercept or any other subject matter whatsoever. Immediately upon the accused being brought back into court, I indicated to defence counsel in the presence of the accused that no conversation other than that necessary to effect the playing of the intercept had occurred.
For purposes of these reasons, it is not necessary to discuss the details of those rulings.
Notwithstanding counsel for Gager having latterly withdrawn from the application, the reasons that follow refer to the arguments advanced by counsel for both accused.
See Rules 6.04(2) and 6.05(1).
The first, served on October 21, 2001, referred to approximately 127 intercepts. The second notice, served on October 24, referred to approximately 10 additional intercepts. For purposes of dealing with this aspect of the application, there is no difference of any significance between what was referred to in the two notices.
The factual component of Mr. Nathanson’s submissions in this regard was expressly admitted by both accused, through counsel, for purposes of this application.
The intercepts were disclosed in various forms. In some cases, the actual recordings were disclosed. In other cases either transcripts or call summaries of the intercepts were disclosed. In still other cases, where they existed in more than one of these formats, the same intercepts were disclosed in as many forms as were extant.
The preliminary inquiry in this matter consumed approximately 33 days of court time. By my count, Backus gave evidence, on ten separate days. Of the nearly 400 pages of his evidence from the preliminary inquiry filed on the Crown’s application to have him declared an expert, the vast majority is cross-examination. I am given to understand from the Crown’s submissions on this application, the factual content of which has been admitted by both accused, that part of the reason that Backus was required to attend on so many different days was because he was repeatedly asked in cross-examination to produce the material upon which he relied for his various opinions. His evidence was repeatedly interrupted in order that he could acquire the material in question. On other occasions, Backus volunteered to get further information to satisfy certain inquiries made of him in cross-examination. Much of that material consisted of telephone intercepts from one or more of the various projects in which he had been involved, including the projects at issue on this application. Some of the many examples of Backus acquiring additional material for disclosure to the defence while the preliminary inquiry was ongoing can be found at April 19, 2010, pp. 72-4; April 20, Part 2, pp. 17, 25-26, 35; May 6, pp. 3, 25, 28, 32-33, 35, 37, 41- 43 and June 1, p. 15.
R. v. Dwernychuk (1992), 1992 ABCA 316, 77 C.C.C. (3d) 385 (Alta. C.A.), per McClung J.A. at pp. 392-402.
Three examples are illustrative. First, in response to a comment by the Crown that vetting the material would be a very time consuming endeavour, Mr. Heath suggested in his submissions that the intercepts in question are not subject to privilege and, therefore, did not need to be vetted. Ignoring, for the moment, the sheer volume of material and the difficulty in assembling it, I disagree that the material need not be vetted. Whatever the application of privilege, it is obvious that it would be irresponsible for Crown counsel to simply release such material without first examining it closely. In saying this, I am mindful of the dicta of Bastarache J. in R. v. McNeil 2009 SCC 3, [2009] 1 S.C.R. 66, at paragraph 12, to the effect that it is erroneous to suggest that there can be no expectation of privacy in the contents of a criminal investigation file and it cannot simply be assumed that files relating to third parties do not attract such an expectation. Second, at another point during the hearing of the application, in response to a comment from the Court concerning the sheer magnitude of the material being sought, the time it would take to produce it and vet it, and the possible delay of the trial that might entail, Mr. Heath’s only response was to state that the material would all fit on a memory stick. Third, on December 14, 2011, responding to media reports of numerous arrests at the end of another massive police investigation, entitled “Project Marvel”, defence counsel indicated that they required still further disclosure of the fruits of that investigation, at least to the extent that they related to the issue of gang rivalry between Doomztown and Driftwood. After conducting extensive inquiries, Crown counsel was able to assure defence counsel that nothing in Marvel related to that issue, whereupon counsel then withdrew their demand in relation to Marvel.
The degree to which Crown counsel and Backus have cooperated with the defence in this matter by providing further disclosure without requiring the defence to bring a formal application, but, rather, simply for the asking, as it were, is singular in my experience. That is obvious when one reads the transcript of Backus’ evidence from the preliminary inquiry, which, as earlier noted, is replete with examples of the officer responding to specific requests for disclosure from the defence and, on still other occasions, volunteering unsolicited to provide further material in response to certain lines of inquiry in cross-examination. As noted above, this resulted in Detective Backus having to appear on 10 separate days to complete his evidence. Further, it is worthy of note that, at the very outset of this trial, Mr. Fishbayn expressly complimented the Crown on its fairness and cooperation in this matter to date; Mr. Heath joined unreservedly in that endorsement at that time. As a further example, at one point during the course of this application, without conceding that it was required to do so, the Crown saw fit to have Backus run a computer search of the ITOs for Kryptic for certain key words and disclosed to the defence a 15 page document resulting from that search. Notwithstanding it was heavily redacted, it was, in the least, sufficient to provide Mr. Heath with what he contended was a sufficient evidentiary base upon which to predicate this application, in lieu of the affidavit of co-counsel upon which he originally saw fit to found this application, but later withdrew. See note 35, infra.
See note 32, supra.
Para. 22.
Affidavit of Joseph Giuliana, para. 6. The author, co-counsel for Smelie, states that he was part of a team of lawyers appointed by Legal Aid Ontario to deal with a Garofoli application relating to all outstanding prosecutions arising from Project Kryptic, the outcome of which will bind all parties to those proceedings. No explanation was given by Mr. Heath for why he saw fit to have his co-counsel provide evidence on this application. Understanding that it is axiomatic that counsel cannot be both advocate and witness on the same proceeding, while co-counsel was not arguing this particular application, it seems to me, nevertheless, that by filing his affidavit Mr. Heath, if not offending the rule, came perilously close to doing so. When I raised my concern in this behalf with Mr. Heath, he then sought leave to withdraw the affidavit and to rely instead on a document concerning Project Kryptic disclosed by the Crown earlier in the course of this application. See note 32, supra.
The transcription of intercepted communications can be a very time consuming process; it can be all the more laborious when the intercepted communications, as in this case, consist of a great many slang terms and patois. As experienced counsel, Mr. Heath must be taken to know this. Indeed, he was put on notice on this point during the preliminary inquiry when he specifically asked Backus about the availability of recordings of intercepts and summaries of intercepts, on the one hand, and transcripts, on the other. Respecting the latter, at Part 2, page 28, of the transcript of April 20, 2010, Backus stated: “Transcripts can be produced, but that takes a longer period of time.” Backus also mentioned some of the difficulties involved, including the retrieval of the calls to be transcribed, which required the assistance of a special technician, and vetting of the content of the calls.
See R. v. Steele, [2010] A.J. No. 61, (Q.B.), at para. 56, where, respecting a defence application for all records of any complaints against an officer, whether proven or dismissed, Macklin J. stated: “Furthermore, requiring the Crown to sift through all such allegations of misconduct under the McNeil first party disclosure process would consume considerable Crown resources.”
In contrast, in Mr. Giuliana’s supporting affidavit, at paragraph 6, which was subsequently withdrawn, the scope of purported relevance was restricted to the single issue of whether Backus’ opinion concerning a gang war was well founded.
Backus indicated that it was mainly older persons who spoke a patois he could not understand; the younger persons to whose communications he listened spoke, for the most part, a “broken patois” that he could understand. He went on to say that, in connection with XXX and Kryptic, “there wasn’t a lot of patois in those projects.” As for “street slang”, Backus indicated that, bearing in mind that it is “all [he has] listened to for the past five years”, he understands it “quite well”: see April 7, 2010, pp. 81-85.
D. Paciocco: Taking a “Goudge” out of Bluster and Blarney: an “Evidence-Based Approach” to Expert Testimony, (2009) 13 Can. Crim. L. R., at p.138.
The drug trade, motor vehicle accident reconstruction and fingerprint comparison are three obvious examples.
April 7, 2010, Transcript of Proceedings, Evidence of Detective Backus, p. 43-44.
For example, Backus acknowledged that his opinion that Gager is member of Doomztown is based solely on the letters, but further indicated that neither the fact that Gager has no tattoos, a hallmark of gang membership, nor the fact that he never heard of Gager during the entire Project XXX investigation into Doomztown would alter his opinion: April 8, 2010, Transcript of Proceedings, Evidence of Detective Backus, pp. 7, 52-56, 58-60.
See Notes 29 and 32, supra.
It seems to me that, in addition to final instructions on how they should approach his evidence, certainly the jury should be given a mid-trial instruction in that behalf at the commencement of Backus’ evidence. I will entertain submissions as to the content of such instructions.
In that case, the court held that expert evidence concerning the location of a cellular telephone at the time a particular call was made, as determined by reference to the cellular tower utilised to facilitate the call, could be considered fact and not opinion.
Indeed, on behalf of Gager, Mr. Fishbayn conceded in his factum, at paragraph 10, that “Det. Backus is qualified to offer an opinion on the composition, territorial reach and practices of Toronto street gangs including the Jamestown Crips, the Doomstown Crips, the Stovetop Crips and the Driftwood Crips…” During oral argument, Mr. Fishbayn acknowledged that it was “probably okay” for Backus to say (i) that street gangs are known to have and to protect certain core territory and, as a result, rivalry between gangs is a known phenomenon and (ii) that the two gangs in question here exist. For his part, Mr. Heath does not make a similar concession.
The Five Point Generals or FPG.
April 14, 2010, Transcript of Proceedings, Evidence of Detective Backus, p. 55-57.
Ibid., pp. 14, 45.
April 8, 2010, Transcript of Proceedings, Evidence of Detective Backus, p. 7.
April 14, 2010, Transcript of Proceedings, Evidence of Detective Backus, p. 57.
Crown’s Factum, para. 24.
April 14, 2010, Transcript of Proceedings, Evidence of Detective Backus, p. 51.
Ibid., p. 50.
My difficulty is threefold. First, in light of the fact that Backus later says that the contact between a person and known gang members, including where he provides firearms or controlled substances to gang members, does not necessarily make the person a gang member: April 14, p. 56. If a person can have that type of contact without being a member, I fail to see how the number of contacts is somehow dispositive. Second, Backus appears to use the terms “associate” and “affiliate”, as earlier defined by him, inconsistently. On the one hand, he indicated that a person would be considered an associate if he provided drugs or firearms to gang members, whereas an affiliate would be someone who might merely buy drugs from gang members. Yet in his initial report, at p. 12, Backus states that Smelie is “strongly affiliated” with [Doomztown] and acts on their behalf”, suggesting that he would be an associate not an affiliate, as I understand Backus’ definitions. Third, in that same sentence, Backus equivocates as between whether Smelie, as distinct from being merely affiliated, is an actual member. Later on the same page, in his conclusion, Backus states, in reference to both accused, that they “are affiliated with the Doomstown Crips.”
I recognize that, because some of Backus’ knowledge of Smelie stems from intercepted communications bespeaking criminality, the jury will have to be given a particular instruction respecting any prior discreditable conduct Backus mentions. I am prepared to hear submissions as to the timing and content of such instruction.
Initial Report of Detective Backus, p.3
In a report he prepared for the Crown, Backus opined that “the Driftwood Crips and the East Mall Crips…were in a war with the Doomstown Crips and the Stove Top Crips.” On April 19, 2010, at p. 48, in cross-examination, Backus said: “All’s [sic] I’m saying is that a war may have existed…[but] wouldn’t say there was a gang war a hundred per cent…” [Emphasis added.]
April 19, 2010, Transcript of Proceedings, Evidence of Detective Backus, p.12.
April 19, 2010, Transcript of Proceedings, Evidence of Detective Backus, p.49 ff. That hostility was said to stem from a shooting incident in 2007. At p. 57, Detective Backus indicated that he did not know “if the gang war was still going on at the time the victim was shot in this case.” At. p. 66, he indicated that he was aware from “source information…of a war going on between those two factions...”
As of the preliminary inquiry, Backus had not referred to the occurrence reports: April 19, 2010, p. 5; April 20, Part 1, p.16. See also, April 19, p. 5, where Detective Backus agreed that he was not aware of “any immediate precipitating event …to link up to the shooting.”
In Riley, supra, Despite finding that it was “not…inextricably interwoven, but…close”, Dambrot J., excluded evidence of another shooting, with which two of the accused were charged on a separate indictment, on the basis that to admit the evidence “[would], at the very least, be a significant diversion from the issue at hand.”
Inquiry into Pediatric Forensic Pathology in Ontario (Toronto, Ministry of the Attorney General: 2008).
See Expert Evidence in Criminal Law: The Scientific Approach 2nd Ed. (A. Gold, Irwin Law, Toronto, 2009), pp. 223-32.

CITATION: R. v. Gager, 2012 ONSC 388

COURT FILE NO.: 11-40000751-0000

DATE: 20120117

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

JERMAINE GAGER and COREY SMELIE

Respondents

Mr. R. Nathanson and Ms. M. Misener, for the Crown

Mr. S. Fishbayn and Mr. C. Gill, for Jermaine Gager

Mr. D. Heath and Mr. J. Giuliana, for Corey Smelie

HEARD: December 5 & 6, 2011

Crown Application RE: Expert witness

DEFENCE APPLICATIONS RE: FURTHER DISCLOSURE

REASONS FOR DECISION

Clark J.:

OVERVIEW

1The accused are jointly charged that on September 22, 2008, they shot to death one Darnell Grant and did thereby commit First Degree Murder.

2On September 22, 2008, at approximately 9:15 p.m., a mini-van carrying an undetermined number of persons arrived on Driftwood Court, in Toronto. At least four persons were present in the area at that time, including the deceased, Darnell Grant. After making several passes through the area, the van stopped in a driveway. Several men got out of the van and proceeded to indiscriminately strafe the area with gunfire. After firing approximately 15 rounds in about as many seconds, they got back in the van and fled. One round struck and killed Mr. Grant.

3The Crown alleges that the motive underlying the shooting was animosity between the Jamestown Cripz (also known as the Doomztown Cripz (“Doomztown”)), a street gang named for the Jamestown area in northwest Toronto, and a rival gang, the Driftwood Cripz (“Driftwood”), named for a street in the area of Jane St. and Finch Ave., a short distance to the east. The accused are alleged to be members of Doomztown.

4The Crown seeks to have the court qualify Detective Douglas Backus of the Toronto Police Service (“TPS”) as an expert on the subject of street gangs in Toronto; the Crown’s purpose is threefold: (i) to explain to the jury various aspects of street gang culture; (ii) to establish the aforementioned motive and (iii) to prove that motive on the part of Gager in particular, by having Backus interpret two letters Gager allegedly authored while in custody awaiting trial.

5Both accused resist the Crown’s application to have Backus declared an expert (“the Backus application”). In the alternative, if he is to be qualified, they seek to limit the scope of the evidence he may offer. To accomplish this more effectively, counsel apply, in separate, but parallel, applications, to have the court order the Crown to make further disclosure respecting certain materials said to form part of the underpinnings of Backus’ opinions. The Crown resists those applications. I heard the applications together and, on December 7, 2011, in brief oral reasons, I allowed the applications, in part.

6On December 2, 2011, counsel for Smelie indicated that he wanted still further disclosure and, on December 5, brought a written application in that behalf. Counsel for Gager joined in that application, only to later abandon it. On December 20, in a brief oral pronouncement, I refused that application.

7I then proceeded to hear the Backus application, but reserved my decision.

8Respecting all three disclosure applications, I indicated that I would give further reasons when time permitted. What follows are the reasons respecting those applications and my decision, and the reasons therefor, on the Backus application.

THE INITIAL APPLICATIONS FOR FURTHER DISCLOSURE

THE PROPOSED EXPERT

9Detective Backus has been a member of the TPS since 1988. Among other duties, he has worked in a variety of special squads, including the Organized Crime Enforcement Unit (“OCEU”).¹

10In November 2005, as part of his OCEU duties, Backus began investigating Toronto street gangs and their criminal activities. He has attended a number of courses relating to gangs, covering such topics as their organization and affiliations, as well as the clothing, graffiti, tattoos, language and symbols they use. The majority of these were conducted in-house by the TPS, lasting less than a day in each case. He has also given instruction on these topics at various TPS in-house seminars.

11Backus has been involved in a number of large TPS projects targeting street gang criminal activity. On at least five of these, he was the lead investigator. Among the many gangs he has investigated are those concerned in this trial, Doomztown and Driftwood. Doomztown was the principal target of an investigation beginning in late 2005, entitled “Project XXX”. In 2006 and 2007, Driftwood was the principal target of another investigation, called “Project Kryptic”. Backus was the lead investigator in both operations.

THE OPINIONS SOUGHT

12The Crown seeks to have Backus give evidence in relation to the culture, hierarchy, territoriality, habits, language, and symbolism of street gangs generally, but also, more particularly, in relation to Doomztown and Driftwood.

13The Crown seeks to have Backus opine that there was, as of September 2008, an ongoing rivalry between Doomztown and Driftwood that he would characterize, if permitted, as a gang war.

14Concerning Smelie, the Crown hopes to have Backus opine that he is a Doomztown member. Backus relies for his opinions on information acquired during the course of Project XXX, including certain private communications intercepted during the investigation pursuant to an authorization under Part VI of the Criminal Code. Backus also relies on Smelie’s association with certain other individuals known to him to be members of the gang.

15Turning to Gager, the Crown applied to have Backus interpret two letters Gager is said to have authored while in custody awaiting trial (“the letters application”). The letters were addressed to one Anthony St. Louis, said by Backus to be a Doomztown member, who was then incarcerated in another facility. The content of letters forms the basis of Backus’ opinion that Gager is a Doomztown member. In addition, Backus relies on the letters as some circumstantial evidence of the motive the Crown asserts.

16On December 12, 2011, in brief oral reasons, I ruled that the letters were admissible, but, having not yet heard the Backus application, my reasons did not address the issue of whether Backus could give evidence concerning the letters. On January 10, 2012, I released my reasons on the letters application. By then I had heard and decided the Backus application, although, as noted above, I had not released the reasons. That said, in my reasons on the letters application, I indicated that I was prepared to qualify Backus as an expert and outlined what he would be permitted to say about the letters.

EVIDENCE ON THE APPLICATIONS

17Concerning the initial applications for further disclosure, each party filed an application record. In addition, heavy reliance was placed by all parties on the application record filed by the Crown on the Backus application. Part of that application record consists of Backus’ evidence at the preliminary inquiry in this matter. No viva voce evidence was led on these applications.

EVIDENTIARY BURDEN

18I begin by instructing myself that the Crown is obliged to disclose all information in its possession arising from an investigation, except that which is clearly irrelevant or privileged and, further, where the Crown declines to disclose on either of these grounds, it bears the burden of justifying non-disclosure: R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, para. 5.

PROCEDURE

19In resisting disclosure of much of the material sought in these applications, the Crown relies on informant privilege. Therefore, as a first order of business, I considered whether it was necessary to proceed in camera.

20In R. v. Basi, 2009 SCC 52, [2009] S.C.J. No. 52, at paragraph 39, speaking for the court, Fish J. held:

Whenever informer privilege is claimed, or the court on its own motion considers that the privilege appears to arise, its existence must be determined in camera at a “first stage” hearing. Even the existence of the claim cannot be publicly disclosed. Ordinarily, only the putative informant and the Crown may appear before the judge. [Emphasis added.]

21I confess I find that passage difficult to reconcile with Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252, where, at paragraph 41, Bastarache J. states:

In more practical terms, this will mean that a trial judge must have the authority to hold an entire proceeding in camera if informer privilege is found to be present; however, an entirely in camera proceeding should be seen as a last resort. A judge ought to make every effort to ensure that as much information as possible is made public, and that disclosure and publication are restricted only for that information which might tend to reveal the informer's identity. [Emphasis added.]

22That said, on November 23, 2011, at the outset of these applications, I invited submissions as to whether the applications should be held in camera. All counsel were of the view that the discussion was likely to be such, at least in the first part of the hearing, that, to protect the privilege being asserted, it would not be necessary to proceed in camera, because the issues could be discussed in the abstract, as it were. Moreover, according to counsel, to proceed in camera would, in all the circumstances, unnecessarily offend the open court principle enunciated in Named Person. Further to counsel’s submissions, I heard argument at this stage in open court, with the information sought being discussed only in the most general terms.

23After considering the arguments, I indicated, for the reasons articulated in the discussion below, that I was of a mind to order disclosure of some of what the defence sought. I further indicated that, in preparation for the next stage of the proceeding, I would give the Crown the opportunity to produce the materials in both an unredacted form and provisionally redacted as they would see fit to do in keeping with my remarks as to why I thought the material ought to be disclosed. I indicated that, once the material was ready, I would hear further submissions as to what redactions were appropriate.

24After hearing other pre-trial applications in the interim, these applications were revisited during the week of December 5, 2011, at which time it was agreed by all that the matter should proceed in camera from that point forward.

25Pursuant to my earlier order, the Crown produced the following materials:

(i) an unredacted PowerPoint presentation Backus had prepared concerning Project XXX (in both electronic and hardcopy form);

(ii) an unredacted PowerPoint presentation Backus had prepared entitled “Part VI Authorizations” ² (in both electronic and hardcopy form);

(iii) an unredacted copy of one debriefing form from Project XXX;

(iv) unredacted copies of eight debriefing forms from Project Kryptic; and

(v) a copy each of the aforementioned items with the redactions proposed by the Crown.

26Respecting the discussion of what information ought to be redacted from the aforementioned materials, all counsel agreed with the following procedure:

(i) the Crown would argue the issue of what was to be redacted in the presence of the accused;

(ii) any discussion between Crown counsel and the court would be couched in terms sufficiently oblique as to not reveal the substance of the information under discussion;

(iii) defence counsel would make submissions in rebuttal;³

(iv) if it became necessary for the Crown to make submissions it could not make with the accused present, I would consider an application to proceed ex parte; and

(v) in the event that the matter were to proceed ex parte, I would provide a judicial summary of what had transpired in the absence of the accused.

27It was further agreed by all counsel that, pursuant to R. v. Richards (1997), 1997 3364 (ON CA), 34 O.R. (3d) 244 (C.A.), the common law respecting public interest privilege would permit the court to make rulings respecting what material was to be disclosed, but, if the court were to order disclosure of any material to which the Crown objected, it would then fall to the Crown to decide if it wished to invoke s. 37 of the Canada Evidence Act (“CEA”).

28On this basis, I heard submissions and made specific rulings as to the redaction of the individual documents tendered by the Crown in response to my earlier order.⁴ It never became necessary for the Crown to resort to s. 37 of the CEA.

THE DISCLOSURE SOUGHT

29The additional material sought by the applicants can be conveniently divided into three categories: the confidential informant database; the debriefing notes; and the PowerPoints.

The Confidential Informant Database

30Over the years, Backus has availed himself, from time to time, of information from a database maintained by the TPS containing information received from confidential informants (“CIs”). These records are kept in what Backus referred to as “our covert office”.⁵ He indicated that, for reasons having to do with the safety of CIs, he cannot access these records directly.

31Defence counsel argue that it is vital to their clients’ right to make full answer and defence that they be made privy to the information Backus relied on to form the opinions the Crown seeks to have him advance.

32Prior to 2005, when he began investigating street gangs, Backus had “several confidential sources over the periods [sic] of years that were street gang members and related to street gang members.”⁶ Since 2005, Backus has received information, either directly or indirectly, from approximately 44 “confidential sources who are entrenched in the gang lifestyle.”⁷ Of those, he said he had spoken to 10 or 12 personally. Information from the rest came to him through what Mr. Fishbayn characterized in cross-examination as “other police sources...”⁸

The Debriefing Notes

33In some of the projects Backus has been involved in persons arrested were “debriefed” by TPS officers and a form filled out recording the results of that process.⁹

34The forms are several pages long. The first page contains the name of the project and the arrestee’s name, address, date of birth and status within the particular gang with which he is associated. The next several pages consist of a lexicon of what Backus referred to as “code words” used by gang members, and persons affiliated with them, in the course of private communications intercepted during the project. The final page contains seven suggested questions to be asked of arrested persons, concerning such topics as membership in a gang, names and “street names” of other members of the gang, territory the gang controls and the arrestee’s awareness, if any, of recent shootings.

35Typically, investigators would ask the arrestees if they wished to cooperate by providing definitions of the terms and/or answering the questions. Some would agree; others would not. According to Backus, arrestees were only ever asked to complete the form once they had already declined to give a statement to the investigators concerning the offence(s) for which they were under arrest. Further, this cooperation was always sought on the basis that the person would not be revealed as the source of the information provided.

36Backus indicated that, of approximately 100 such debriefings in all, he did only two or three on each project, for a total of six to nine interviews over the course of the projects he led; the rest were done by “the arresting team itself...”¹⁰ The persons interviewed in this fashion are “considered confidential sources because of the danger they pose to themselves by assisting the police.”¹¹

37Mr. Fishbayn and Mr. Heath argue that the debriefing documents are necessary for their clients to make full answer and defence, because without them they will not be able to challenge Backus’ purported expertise in an effective way.

38Further, on behalf of Gager, Mr. Fishbayn argues that, without this material, he will not be able to challenge Backus’ interpretation of certain language used in the letters allegedly authored by his client.

The PowerPoint Presentations

39As a recognized gang expert within the TPS, Backus is called upon from time to time to impart his knowledge to other officers. He does this with the aid of two PowerPoint presentations he has created. While he indicated that the major part of his presentations relates to “officers’ safety in relation to street gangs”, Backus said he also lectures on “territorial control, gang symbols, tattoos, graffiti, and terminology.” ¹²

40Defence counsel argue that this material is akin to any writing authored by a witness proffered as an expert by opposing counsel. Just as counsel would be entitled to cross-examine a psychiatrist, for example, on earlier writings by the witness on a subject germane to his evidence in the proceeding, the accused in this case should be entitled, counsel assert, to cross-examine Backus on any views he has expressed in the PowerPoints, concerning the subject matters on which he may be asked to opine in this trial, including, but not limited to, gang organization, customs, territoriality, tattoos, symbols and language. While they concede that the Crown ought to have the right to redact any material in the PowerPoints that might tend to reveal investigative techniques or compromise officer safety, as distinct from those matters defence counsel argue that Backus should not be insulated from an examination on his views, as expressed elsewhere, on the subject of street gangs.

41The Crown takes issue on the grounds of public interest privilege. To order the Crown to disclose this material, counsel asserts, would be to force it to reveal information that could disclose investigative techniques, compromise officer safety, or both. Crown counsel did not explain, however, how these issues would be compromised if, as defence counsel concede is appropriate, the PowerPoints are redacted so as not to disclose information of that sort.

DISCUSSION

General Principles of Disclosure

42In Basi, at paragraph 1, speaking for the court, Fish J. observed:

Everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown. To withhold that material without justification is to jeopardize impermissibly the right of the accused to make full answer and defence. The entitlement to disclosure must therefore be broadly construed. But it is neither absolute nor unlimited.

43A well recognized exception to the general rule requiring disclosure “of all relevant material” concerns information that is subject to privilege. In R. v Stinchcombe, 1991 45 (SCC), [1991] S.C.J. No. 83, at paragraph 20, speaking for the court, Sopinka J. held:

[T]his obligation to disclose is not absolute. It is subject to the discretion of counsel for the Crown. This discretion extends both to the withholding of information and to the timing of disclosure. For example, counsel for the Crown has a duty to respect the rules of privilege. In the case of informers the Crown has a duty to protect their identity. In some cases serious prejudice or even harm may result to a person who has supplied evidence or information to the investigation.

44Just as the obligation to disclose is not absolute, likewise, as Sopinka J. noted two paragraphs later in Stinchcombe, the right to withhold disclosure on the basis of privilege is not absolute:

The trial judge might also, in certain circumstances, conclude that the recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege.

Informant Privilege

45The purpose of the rule of informant privilege was enunciated in R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, at paragraph 9, where McLachlin J., as she then was, held:

The rule against the non-disclosure of information which might identify an informer is one of long standing. It developed from an acceptance of the importance of the role of informers in the solution of crimes and the apprehension of criminals. It was recognized that citizens have a duty to divulge to the police any information that they may have pertaining to the commission of a crime. It was also obvious to the courts from very early times that the identity of an informer would have to be concealed, both for his or her own protection and to encourage others to divulge to the authorities any information pertaining to crimes. It was in order to achieve these goals that the rule was developed.

46At paragraph 12, McLachlin J. added, “informer privilege is of such importance that once found, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations ...” Referring to that passage,¹³ Bastarache J. stated, “this general protection is so important that it renders informer privilege a matter beyond the discretion of a trial judge.” At paragraph 26 of Named Person, Bastarache J. went on to outline the scope of the rule as follows:

In addition to its absolute non-discretionary nature, the rule is extremely broad in its application. The rule applies to the identity of every informer: it applies where the informer is not present, where the informer is present, and even where the informer himself or herself is a witness. It applies to both documentary evidence and oral testimony: Sopinka, Lederman and Bryant, at pp. 882-83. It applies in criminal and civil trials. The duty imposed to keep an informer's identity confidential applies to the police, to the Crown, to attorneys and to judges: Hubbard, Magotiaux and Duncan, at p. 2-2. The rule's protection is also broad in its coverage. Any information which might tend to identify an informer is protected by the privilege. Thus the protection is not limited simply to the informer's name, but extends to any information that might lead to identification.

47It is well settled that it is the identity of the informant that is confidential and not the information he provides, except to the limited extent that disclosure of information might tend to identify the informant. That said, on my reading of the authorities, nothing in either Basi or Leipert departs from the earlier holding to that effect in R. v. Durette, 1994 123 (SCC), [1994] 1 S.C.R. 469.

48On behalf of the Crown, Ms. Misener acknowledges that proposition, but relies on Leipert and R. v. Omar, 2007 ONCA 117, to argue that the court cannot know with sufficient certainty when something it orders disclosed will tend to identify the informant. In the absence, then, of a claim of innocence at stake, she asserts that none of the material sought can properly be disclosed. With respect, Ms. Misener paints with too broad a brush. Surely, in any case in which informant privilege is asserted, it can be said that one can never be absolutely certain just what information might tend to identify the informant to someone else who is privy to it. The net effect of such an approach would be to insulate all information from disclosure any time the Crown passed the first stage hurdle of showing that the source of the information was a CI.

49Despite the singular importance of the informant privilege, as Bastarache J. makes plain at paragraph 40 of Named Person, the rule was never meant to be applied so rigidly as to de facto prevent disclosure of all information forthcoming from CIs:

Although a judge has no discretion not to apply the informer privilege rule, to ensure that the open court principle is respected, we must ensure that it retains the maximum effect possible by requiring that the informer privilege cover only that information which would in fact tend to reveal an informer's identity; all other information regarding the proceeding would continue to be information which should be published under the open court principle.

The Confidential Informant Database

50As noted above, the defence seeks disclosure of material that Backus has consulted from time to time contained in a TPS CI database.

51Neither accused has suggested that the persons supplying this information were not CIs. Thus, concerning the information contained in the database, I am satisfied that the first stage test has been met: Basi, para. 39.

52Citing R. v. Stone, (1999), 1999 688 (SCC), 134 C.C.C. (3d) 353, (S.C.C.), Mr. Fishbayn argues that a witness cannot express opinions that rely for their validity on confidential sources while at the same time shielding those sources from disclosure. If the Crown wishes to maintain the privilege, Mr. Fishbayn argues, it must forego calling the witness.

53I do not find Stone applicable in this context.¹⁴ That case dealt with utterances of the appellant forming the underpinning of a psychiatric opinion advanced in his defence at trial. The Supreme Court held that, by offering the opinion of the psychiatrist, the appellant had waived any privilege that had theretofore attached to his utterances to the doctor. Here, on the other hand, the privilege is not that of the Crown, at least not exclusively, and the CIs have not waived the privilege: R. v. Basi, para. 40; Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd Ed. (Markham, Ont.: LexisNexis, 1999), at§15.57.

54Mr. Fishbayn asserts that the situation is not the same as Leipert because here we are dealing with known CIs, as opposed to anonymous informants. In my view, the principle is the same; it is difficult and, indeed, perilous, to attempt to determine what will or will not tend to reveal the identity of a CI. While it is more difficult, perhaps, in the case of an anonymous CI, the danger is certainly not eliminated in a given case simply because the identity of the CI is known to the authorities.

55Defence counsel assert that they need this information, at least in part, because Backus’ claim of expertise relies on it and they wish to challenge that claim. As an example, Mr. Fishbayn contends that Backus claims to understand the language used in the letters because of information he has received from CIs. While I agree Backus said that at the preliminary inquiry, as I understood his evidence he was referring to the odd word with which he had difficulty from time to time. Moreover, those difficulties were early on in the time he has been investigating gangs; since that time he has acquired an extensive knowledge of gang slang. Backus indicated that the vast majority of his understanding has come from countless hours of listening to several hundred thousand intercepts.

56Mr. Fishbayn also contends that, as well as going to Backus’ expertise, the CI information goes to the root of his opinions in this case, such that counsel will not be able to effectively challenge those opinions without access to those sources. In my view, the CI information upon which Backus relied is so miniscule in comparison to the wealth of firsthand experience he has in this regard that it cannot fairly be said that it goes to the root of his opinions. Rather, having reviewed the extensive transcript of his evidence at the preliminary inquiry, the clear sense I am left with is that the CI information is only one minute portion of his overall knowledge base. That said, the notion that counsel cannot effectively challenge Backus’ opinions without the benefit of the CI information is simply not tenable: R. v. Lucas, 2009 27837 (ON SC), [2009] O.J. No. 2252 (S.C.J.), paras. 28 and 29.

57Mr. Fishbayn also complains that Backus is unlike other experts because there is no body of literature that can be consulted with a view to challenging opinions Backus might hold that are not in keeping with mainstream thought in his particular field of expertise. That may be true and, as I will discuss when I come to deal with the Backus application, it may impact on the question of whether he can be properly considered to be an expert. That said, it does not, in my view, impact one way or another on the issue of whether the accused should be entitled to access the CI information.

58Mr. Fishbayn argued that many of Backus’ conclusions in the reports he prepared for the Crown in this case are speculative and, as such, it is vital that the defence have the opportunity to consult the database to see whether there is any support there for those conclusions. With respect, I do not see it as necessary to effectively challenge a particular assertion of fact that counsel have access to a database only for the purpose of showing that there is no information in the database confirming that assertion. At the risk of stating the obvious, absence of information concerning a proposition does not amount to a refutation of it. In my view, defence counsel can very effectively attack any assertion they contend is speculative simply by challenging the witness to defend his thesis by reference to tangible (and admissible) information. To the extent that he is unable to do so, his opinion will be entitled to correspondingly less weight. Counsel can do this at the stage at which I am asked, as the “gate keeper”, to determine whether Backus is a properly qualified expert and, if so, precisely which opinions he may offer¹⁵ and which he may not. Assuming for the sake of this discussion that the court qualifies Backus to give opinion evidence, counsel may, of course, mount the same attack again in front of the jury.

59There are several other problems with the defence request.

60First, unlike Stone, the information sought is not directly relevant to the issues before the court, but only tangentially so, insofar as it might impinge on the credibility or reliability of the proposed expert’s evidence. I emphasize the word “might” because there is no evidence before me to suggest that there is any information in the database that would contradict Backus’ opinions.

61Second, as I understand it, Backus did not access all the information in the database and, inasmuch as he says that any information he has acquired by reference to confidential sources is stored in his memory, he has no exact record of which information within the database he accessed and which he did not. Thus, it would be virtually impossible to discern this, with the result that, if I were to accede to the defence request, I might well be ordering disclosure of material that Backus never consulted.

62Third, in addition to information acquired from the database, Backus has also personally received information from his own CIs in relation to gang activities. That said, it seems obvious to me that, to the extent that his expertise is a function of information received from third parties as opposed to his own firsthand experience, which doubtless it is to some degree, some of his expertise likely depends on information forthcoming from his own sources, as opposed to information from the database. Concerning the CIs with whom he dealt personally, he dealt with most of them before he even became involved in Project XXX, in 2005, much less became involved in this case in 2008; so, the connection is remote. Because, as I understand it, none of the confidential information of which Backus is aware, either from the database or his own confidential sources relates directly to the case at hand, it would be difficult, if not impossible for Backus to separate out information he has received from his own CIs, which is not being sought in these applications, from that which he gleaned from the database, which is being sought.

63Fourth, on the one hand, Backus’ CI information is said by the defence to be inherently suspect by virtue of the dubious nature of the source. The defence makes this point in an effort to undermine the Crown’s claim that the witness possesses expertise in the field of street gangs. In the next breath, however, counsel argue that the confidential information might prove fruitful as an arsenal to which they could resort to challenge Backus’ assertions. However, if the information is so inherently suspect by virtue of its source that Backus cannot properly claim to be an expert based, in part, on his knowledge of that information, I fail to see how it can be seriously argued that without that information the defence will be deprived of a useful means by which to attack his assertions on the basis of such countervailing information as the database might contain.

64Fifth, the Crown does not seek to rely on any of the information sought to prove guilt. This was considered an important factor in Basi, where, at paragraph 51, Fish J. stated:

This case concerns an application for disclosure only. The Crown does not seek to rely upon the redacted portions of the documents in order to prove guilt. Indeed, the Crown could not introduce the withheld information as evidence at trial without providing it to the defence. This is therefore not a case where the Crown seeks to use information against a person without permitting that person to see the information. Compare Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.

65In summary, I am firmly of the opinion that the information in the CI database could not possibly affect the outcome of the trial; therefore the privilege ought to be maintained: R. v. Hernandez, 2010 BCCA 514, [2010] B.C.J. No. 2275 (C.A.). Indeed, in my respectful view, the need to preserve the informant privilege “far outweigh[s] any speculative benefits to the defense...”: People v. Callen 194 Cal. App. 3d 558 (1987), cited in R. v. Leipert at para. 11.

The Debriefing Notes

(i) Confidential Informant Status

66Turning to the debriefing documents, the Crown asserts informant privilege in relation to them as well.

67Counsel for the applicants, on the other hand, contend privilege does not apply because the persons debriefed were not CIs; rather, counsel argue, they were simply arrested persons being interviewed as part of standard post-arrest procedure. As such, their utterances are no different in kind than any other statement taken by a police officer in the course of an investigation. I disagree.

68A person is a CI if he gives information pursuant to a promise or assurance that the police will not reveal him to be the source of the information. See Bisaillon v. Keable, 1983 26 (SCC), [1983] 2 S.C.R. 60 where, at page 105, speaking for the court, Beetz J. stated:

The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.

Moreover, an express promise of confidentiality is not required: R. v. Thomas (1998), 1998 14942 (ON SC), 124 C.C.C. (3d) 178 (Ont. Ct. Gen. Div.), cited in Hubbard, Magotiaux and Duncan, The Law of Privilege in Canada (Toronto, Canada Law Book, 2006), at §2.100.90.

69As earlier noted, Backus said, quite explicitly, that the debriefing procedure was only resorted to once the arrestee had already declined to give a statement in the normal course of the investigation and, further, the arrestee was told that any subsequent cooperation with the police would be on the basis that his identity would not be disclosed.¹⁶ Backus’ evidence was never challenged in this regard. That is sufficient, in my view, to cloak the person with CI status.

(ii) Nature of the Information

70The debriefing notes include a great many words commonly used among gang members. To cite one example, the words “burner”, “heater” “tool” and “piece” are all said to be slang terms for a firearm. Indeed, respecting the word “burner”, Backus indicated in his evidence at the preliminary inquiry that it was “a pretty common word used on the street for firearm” and one he did not have to verify. On the other hand, still dealing with firearms, Backus said that “firestick”, was a term he had not heard used in that context and, thus, was one the meaning of which he felt obliged to confirm.¹⁷

71As earlier noted, relying on Leipert and Omar, the Crown argues that, since the court cannot know what information might tend to identify the CI, it is unsafe to disclose any of the information contained in the forms. In connection with the lexicons, I disagree. Backus indicated that as between the various gangs with which he is familiar “there’s a slight variance to several different gangs within Toronto ...but for the most part it’s pretty standard.”¹⁸

72The Crown’s argument presupposes that a term might have a definition so exclusive to a small enough group of persons that one member of the group could infer who among the group must have given the definition to the police. In weighing that argument, I must bear in mind, on the one hand, that, as earlier stated, the law does not protect the information provided by a CI, but, rather, his identity. On the other hand, I recognize that even that which appears to the uninitiated to be completely innocuous may reveal to the cognoscenti, as it were, the identity of an informant. In this instance, I consider, with respect, the possibility that one member of a gang could deduce the identity of another from a definition of a term on one of these forms to be remote in the extreme.

73Accordingly, I ordered the Crown to produce the debriefing materials, after redacting both personal identifiers and the answers to the questions at the end of the form.¹⁹

74As for the terms in the lexicon portion of the debrief forms, I indicated that, if the Crown was of the view that any of the terms was so unique that it could narrow the pool of persons who might have provided the information, so as to potentially reveal the identity of the contributor of the definition, I would be prepared to hear further evidence to that effect and argument on that issue, with a view to revisiting this aspect of my ruling.

75As it turned out, after hearing argument at a later point, I ordered that the lexicons contained in the various forms produced by the Crown to be disclosed.

The PowerPoints

76The defence sought access to a PowerPoint presentation Backus had created.²⁰ The Crown argues that this information is protected by investigative privilege and to disclose it would both compromise police investigative techniques and jeopardize officer safety. I disagree.

77The defence expressly concedes that it is not entitled to, and does not seek, any information dealing with either investigative techniques or officer safety. That said, the worries expressed by the Crown are unrealistic.

78The Crown frequently seeks to have police officers qualified in this area to give the very sort of evidence that the Crown seeks to have Backus give in this case.²¹ That said, it cannot sensibly be said that the substance of Backus’ views on the subject matters, concerning which the defence is seeking disclosure, is secret.

79To the extent that Backus’ PowerPoints can be redacted so as to disclose nothing more than he has already attested to in this or other proceedings, and not reveal anything relating to investigative techniques or officer safety, obviously no harm will be done. On the other hand, assuming for the sake of this discussion that the court were to qualify Backus as an expert, to the extent that his views on these subjects as expressed in the PowerPoints may differ from what he has said or will say in evidence, it would seem only fitting that the defence be able to test his credibility by putting before the trier of fact any such inconsistencies.

80For the foregoing reasons, I ordered the Crown to produce the PowerPoint to the Court together with a version redacted as they saw fit concerning matters of investigative strategy and officer safety.

81On December 5, 2011, the Crown produced the materials as ordered. I entertained submissions in camera, but not ex parte,²² concerning the nature of the proposed redactions and made rulings accordingly at that time.²³

APPLICATION FOR FURTHER ADDITIONAL DISCLOSURE

INTRODUCTION

82In the midst of other pre-trial applications, counsel for Smelie brought another application for still further additional disclosure respecting the underpinnings of Backus’ proposed opinion evidence. Counsel for Gager initially joined in this application and argued the matter at length, only to later abandon his request for the additional disclosure sought.²⁴ What follows are my reasons for refusing that application.

TIMING OF THE REQUEST

83As noted above, in an oral submission on December 2, 2011, counsel for Smelie made known to the court for the first time that, in addition to his earlier application for additional disclosure, he wished still further disclosure. I indicated to Mr. Heath that he was obliged to bring a written application; he submitted that application on December 5, 2011.

84I begin by noting that the application was not brought in compliance with the Rules of Criminal Proceedings.²⁵

85Failure by an accused to make a timely request for disclosure can have consequences. In R. v Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, at paragraph 37, speaking for the Court Cory J. stated:

In considering the overall fairness of the trial process, defence counsel's diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown's non-disclosure affected the fairness of the trial process. In Stinchcombe, supra, at p. 341, defence counsel's duty to be duly diligent was described in this way:

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, 1975 11 (SCC), [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure. This was aptly stated by the British Columbia Court of Appeal in R. v. Bramwell (1996), 1996 352 (BC CA), 106 C.C.C. (3d) 365 (aff'd 1996 156 (SCC), [1996] 3 S.C.R. 1126), at p. 374:

. . . the disclosure process is one which engages both the Crown and the defence. It is not one in which defence counsel has no role to play except as passive receiver of information. The goal of the disclosure process is to ensure that the accused is not denied a fair trial. To that end, Crown counsel must disclose everything in its possession which is not clearly irrelevant to the defence, but the defence must also play its part by diligently pursuing disclosure from Crown counsel in a timely manner. Further, where, as here, defence counsel makes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents was not made. [Emphasis added in both the main and internal quotes.]

Those remarks are entirely applicable in this case.

86Two paragraphs later, Cory J. stated, “… the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a very significant factor in deciding whether to order a new trial.” As Dixon makes abundantly clear, then, concerning disclosure, defence counsel have an obligation to exercise due diligence. In particular, counsel are obliged to bring any failure to disclose to the trial judge's attention at the earliest opportunity: R. v. Pena, [1997] B.C.J. No 1395 (S.C.), citing Stinchcombe.

87While I do not go so far as to say that the application reflected a tactical decision of the sort referred to in the above quoted passage from Dixon, given the timing of the disclosure request, the many thousands of pages of material sought, and the time and effort it would take to produce, vet and disclose that material, the request, if granted, would have had the net effect of imposing an unwieldy and unreasonable burden on the prosecution.

88Counsel for Smelie explained the tardiness of his application by saying that he was unaware of the need to bring it until the Crown served him with notice²⁶ pursuant to s. 189(5) of the Criminal Code respecting a number of private communications intercepted pursuant to two successive Part VI authorizations granted in 2007 as part of the Kryptic investigation. Likewise, counsel for Gager indicated that he simply did not realize that this further disclosure would be required until served with the notice. For the following reasons, I do not accept this explanation.

89First, in response to the s. 189(5) notices, a meeting was set up at the request of Mr. Heath. I was informed by Mr. Nathanson²⁷ that Mr. Heath contacted the Crown and indicated he was having trouble relating the calls referred to in the notice to the intercepts he had earlier received, in one form or another,²⁸ by way of 2010 Crown disclosure in this matter. There is no indication that Mr. Fishbayn was ever part of the discussions surrounding the meeting or that he ever contacted the Crown in this regard, from which I can only infer that, unlike Mr. Heath, he was not confused as to the calls to which the notices referred. It was arranged that Backus would attend that meeting. However, once having set up the meeting, Mr. Heath then cancelled it, indicating he was unable to attend. The meeting was never rescheduled; rather, Mr. Heath opted instead to bring this application.

90Second, the need for this material, such as it has been explained to me, must have been obvious long before the Crown served the notices. The rivalry between Doomztown and Driftwood has been a live issue in this litigation at least since the preliminary inquiry began, nearly two years ago. Backus was questioned at considerable length in that proceeding concerning inter-gang rivalry and numerous references were made during his cross-examination to the various intercepted calls.²⁹

91Third, the defence has been on notice since at least the pretrial conference in this matter, held in October 2010, that the Crown was intending to present this rivalry as the motive for the shooting and would seek to do so through Backus.

92Against that backdrop, it beggars the imagination to think that the purported relevance of the material they now seek only just occurred to experienced defence counsel upon receiving notice pursuant to s. 189(5).

93Fourth, even if it was only after receiving notice that counsel realized that Backus would be relying on these intercepts as part of the basis for his opinion that there was a rivalry or animosity between Doomztown and Driftwood, it is not disputed that the Crown served this notice by email on October 21 and followed it up with a further notice delivered in person on October 24, 2011. There was, therefore, ample time to comply with the Rules. That was not done and no explanation was given for Mr. Heath’s failure to do so.

94Had the application been filed in a timely fashion, it would have afforded the Crown time to find out certain information respecting the state of disclosure in these other matters and whether disclosure of some or all of the information sought might be effected without risking the revelation of any material that by virtue of privilege, or other reason, ought not to be disclosed. It is trite to observe that one of the foremost purposes of the rules is to ensure adequate and fair notice to an opposing party, such that it has a fair opportunity to respond in a cogent fashion to an application. ³⁰ As it was, (and I imply no criticism of Crown counsel in saying this) not having had the benefit of proper notice, the Crown was not in a position, at least initially, to respond cogently to certain questions I posed during oral argument concerning such things as the state of the disclosure in the cases arising from the aforementioned projects and the amount of material involved in those other matters.

95To the extent that I might have been inclined to order some or all of what was sought, by the timing of the application counsel created a very difficult situation. As an example, respecting the transcripts of intercepts counsel seek, many calls, I am told, have not yet been transcribed. That said, were I to have ordered disclosure, the police would have had to retrieve the calls, have them transcribed, make copies and then give disclosure to Crown counsel, who, in turn, would have had to vet the material for disclosure. With respect, defence counsel either failed to appreciate or, on the other hand, were simply indifferent to, the enormity of what they were seeking or the degree to which the timing of their application would compound the difficulty for the Crown of complying with any order I might have made in that behalf.³¹

96Further, had the Crown been put on proper notice it might have been willing, and might have had a reasonable opportunity to prepare, to disclose at least some of this material without the need for this application. I say that based on the degree of cooperation between the parties evident in the conduct of this prosecution.³²

97I have dealt with this issue at some length because defence counsel’s failure to apply in a timely way for that which they now seek resulted in a significant delay, particularly during the week of December 12, 2011, when I was repeatedly asked to stand down the cross-examination of Backus on the Crown’s application to have him declared an expert, in order to resolve outstanding disclosure issues that arose precisely because of the ill timing of this application.

98That said, I recognize, of course, that the potential unavailability of Charter relief on appeal, discussed in Dixon, as a result of the earlier failure of an appellant to pursue disclosure in a timely way, does not imply that a tardy request for disclosure disentitles an accused to full disclosure where the lack thereof is discovered before or during the trial. Indeed, Laskin J.A. rejected that argument in R. v. Dulude, 2004 30967 (ON CA), [2004] O.J. No. 3576 (C.A.), at paragraph 25. Accordingly, notwithstanding the delay in bringing this application, I heard the application on its merits, to which I now turn.

ALTERNATIVE BASES FOR THE APPLICATION

99The application has two bases: (i) that the Crown is obliged to provide the disclosure sought solely by virtue of the application of s. 189(5) of the Criminal Code and (ii) that the Crown is obliged to provide the disclosure pursuant to its obligations at common law, as augmented by s. 7 of the Charter.

THE REQUIREMENTS OF S. 189(5)

100Counsel contended that the present application was triggered by the Crown’s s. 189(5) notices and that the section requires that the Crown provide that which they seek. For the reasons that follow, I disagree.

101As earlier noted, the notices mention, in the aggregate, somewhere in the neighbourhood of 135 intercepts. Defence counsel acknowledge that, by one means or another, they already have particulars of the calls in question. Respecting some calls, they have call summaries; respecting others, they have transcripts; respecting still others, they have the actual recordings themselves. Respecting intercepts memorialized in more than one of these formats, the calls have been disclosed in as many forms as were produced. More importantly, defence counsel have had these calls, in one or more of the aforementioned forms since before the end of the preliminary inquiry in June 2010.

102Notwithstanding this earlier disclosure, counsel for both accused argue that s. 189(5) of the Code requires that, for each and every call mentioned in the notices, the Crown must provide transcripts of the intercept and the actual recording itself. In support of this proposition, counsel for Smelie relies heavily on R. v. Sappleton, 2010 ONSC 5704, [2010] O.J. No. 5366 (S.C.J.), in which, when confronted with a similar situation, Trafford J. ordered the Crown to disclose to the defence a call summary, a transcript and the actual recording of all calls referred to in the Crown’s s. 189(5) notice in order that the defence could effectively challenge the proffered evidence of the same witness, Backus.

103In furtherance of his suggestion that I should make the same order, Mr. Heath suggests that Trafford J. made the order he did because, simply, that is what the plain reading of s. 189(5) requires. I reject Mr. Heath’s submission that Sappleton stands for that proposition. Whatever he may have seen fit to order on the facts before him, I do not accept that Trafford J. meant to lay down a general rule that this is required in every case in order for the Crown to comply with the section. I say that, in large part, because Trafford J. referred to R. v. Tam, [2000] O.J. No. 2185 (C.A.), in which, at paragraphs 17 and 18, speaking for the court, Goudge J.A. held:

17 The purpose of s. 189(5)(a) is to provide the accused with timely disclosure of the evidence that may be tendered against him to enable him to prepare his defence.

18 The paragraph addresses two circumstances: one, where the evidence of the communication is to be adduced in the form of the recording itself, in which case a transcript is to be served on the accused; and the other where the evidence of the communication is to be given viva voce, in which case the accused must receive full particulars of the communication.

104I am satisfied that those conditions have been met in this case.

105Mr. Nathanson has stated that the Crown has no intention of introducing the actual recordings of any of the communications, either in the voir dire concerning Backus’ expertise or on the trial proper. Rather, Mr. Nathanson explained that the Crown served the notices as a precaution. Concerned that the subject of the intercepts might be raised in cross-examination of Backus and, to the extent that Backus relies on the intercepts in support of his opinions, the Crown did not want to find itself in the position of having Backus’ opinions ruled inadmissible because the information underlying them was inadmissible, by virtue of a failure by the Crown to disclose what had been ordered in Sappleton.

106With deference to those who hold a contrary opinion, in my view insofar as the Crown is not intending to introduce the actual intercepts it is not required to provide the accused with transcripts of the calls in question. The communications are only likely to be raised on the Backus application, if at all, by the defence in challenging Backus’ professed expertise. Thus, only viva voce evidence of the communication is likely to be forthcoming, and, to quote the language of the subsection, “the party intending to adduce it…” is the defence. As for the trial, I gather that, while counsel does not intend to introduce the intercepts themselves, it is the Crown’s intention to ask Backus to refer in his testimony to some XXX intercepts, but not to the Kryptic intercepts sought on this application. That said, as distinct from possible relevance considerations arising pursuant to Stinchcombe or O’Connor, as the case may be, s. 189(5) was never intended to permit the accused to require disclosure of Part VI interceptions that the Crown was never intending to adduce in evidence.

107I hasten to add that, in my view, the main rationale said to underlie counsel’s request for this further disclosure, namely, the prospect that they might be able to mount a stronger attack on Backus’ expertise or his opinions with the benefit of this material, is entirely conjectural. The most that Mr. Heath could suggest, was that this material might reveal that in his evidence at the preliminary inquiry Backus had “strategically edited” his reference to the information base available to him, so as to deliberately exclude any information that might undermine his expertise or the validity of his opinions. Counsel acknowledged, however, that he had no factual foundation for that submission.

108Even if the section did apply, insofar as it is not intended to introduce the actual recordings into evidence, it would be sufficient that the accused receive “full particulars of the communication.” That phrase is satisfied, in my view, by disclosure of a reasonable call summary. The Crown is not required to provide either a verbatim transcript of an intercept or the actual recording itself.

109In the final analysis, I am satisfied that the provisions of s. 189(5) have been met and the section does not require the Crown to provide that which the applicants seek.

COMMON LAW/CHARTER DISCLOSURE REQUIREMENTS

110I turn now to the argument that disclosure of this material is required at common law, as augmented by s. 7 of the Charter.

Analytical Framework: Stinchcombe or O’Connor

111Before considering the merits of this arm of the application, it was first necessary to decide the appropriate analytical framework. Is the material sought first party disclosure, so as to be governed by Stinchcombe, or is it third party material, such that O’Connor applies? Because the question of which disclosure regime should apply was never raised during the course of the initial hearing of this application, on December 20, 2011, having earlier given the parties notice that this was a matter of concern to me, I invited counsel to make submissions on this issue.

112Stinchcombe requires the prosecution to disclose to the defence “the fruits of the investigation”: para. 12. In this case, the records sought were created by the same police service and, indeed, Backus was the lead investigator for the projects in question, but, that notwithstanding, the records were not created as part of the investigation in this case.

113In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, Charron J., speaking for the court held at paragraph 25:

Even though, in this narrow sense, the police and the Crown may be viewed as one entity for disclosure purposes, the two are unquestionably separate and independent entities, both in fact and in law. Hence, production of criminal investigation files involving third parties, and that of police disciplinary records, usually falls to be determined in the context of an O'Connor application.

114In R. v. Black, 2011 ABCA 349, [2011] A.J. No. 1291, at paragraph 31, Ritter J.A., speaking for the majority, stated with reference to McNeil:

The second important statement of law is that although the disclosure obligation rests with the prosecuting authority, the investigating authority is under an obligation to disclose to the prosecuting authority all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, an investigating police force is not a third party, but acts on the same footing as the prosecuting authority. However, this corollary duty only extends to the fruits of the investigation, being the investigation of the accused, and does not include other materials or files in the possession of the police; for example, criminal files relating to a victim or witness. If the accused wants access to those files he or she must make an O'Connor application. [Emphasis added.]

115While Black, like McNeil, dealt with police discipline records, in my view any records created in the course of a different criminal investigation are third party records. The fact that a witness in this case was the lead investigator in the cases in which the material sought was generated does not change that principle. The fact remains that the sought after material is the fruit of another investigation.

116Unlike McNeil and Black, however, the materials in question in this case have been disclosed to “the Crown”. In O’Connor, at paragraph 19, Sopinka J. held:

When the defence seeks information in the hands of a third party (as compared to the state), the following considerations operate so as to require a shifting of the onus and a higher threshold of relevance:

(1) the information is not part of the state's "case to meet" nor has the state been granted access to the information in preparing its case; and

(2) third parties have no obligation to assist the defence. [Emphasis added.]

117Disclosure has been made to the accused in this case of the Project XXX material. As for Fusion, counsel for Smelie eventually withdrew the request for the Fusion material, save and except that which it contends the Crown is required to provide pursuant to s. 189(5), which I have dealt with above. Accordingly, the issue of disclosure respecting those projects is moot.

118Respecting Project Kryptic, however, disclosure of the fruits of that investigation has not been made to defence counsel in this case. As I understand it, the material from that project, albeit it has been put in the hands of other prosecutors, it is not in the hands of the prosecutors in this case. That begs the question of whether “the state has been granted access to the information”. In other words, does the fact that the material relates to investigations other than the one leading to the charge before this court and that further fact that, albeit it is in the hands of other prosecutors, it is not in the hands of the prosecutors in this case, shield the Crown in this case against a first party disclosure obligation?

119In McNeil at paragraph 13, Charron J. held:

Third, to the extent that the operative terms of the production order below may suggest that records in possession of one Crown entity are deemed to be in the possession of another, this interpretation should be discarded. The notion that all state authorities constitute a single indivisible Crown entity for the purposes of disclosure finds no support in law and, moreover, is unworkable in practice. Accordingly, Crown entities other than the prosecuting Crown are third parties under the O'Connor production regime. As I will explain, however, this does not relieve the prosecuting Crown from its obligation to make reasonable inquiries of other Crown entities and other third parties, in appropriate cases, with respect to records and information in their possession that may be relevant to the case being prosecuted. The Crown and the defence in a criminal proceeding are not adverse in interest for the purpose of discovering relevant information that may be of benefit to an accused. [Emphasis added.]

120In this case, although counsel having carriage of this prosecution and counsel prosecuting the cases arising from Project Kryptic are all employees of the Attorney General of Ontario, they are, in fact, employed in different offices and have different prosecutorial responsibilities. There are hundreds of Crown prosecutors employed by the Attorney General of this province and to consider them as one indivisible unit is, for all practical purposes, a fiction. Moreover, to impose on the prosecutor(s) of an individual case the obligation to seek out material that may be in the hands of other prosecutors would be onerous and unworkable. Thus, I conclude that the material is not in the hands of what Charron J. characterized as “the prosecuting Crown”.

121As for the “reasonable inquiries of other Crown entities” of which Charron J. spoke in the above quoted passage, by virtue of the search Backus performed and the resulting disclosure of the 15 page document concerning Kryptic, I am satisfied that the prosecutors in this case have fulfilled that obligation.³³

122In the result, on December 20, 2011, I ruled that the records were third party records and, as such, for the applicants to succeed they must satisfy the requirements of O’Connor.

RELEVANCE:

General Principles

123Before dealing with the material sought in this case, I propose to examine briefly some general principles respecting relevance in the disclosure context.

124The seminal case is, of course, Stinchcombe. In that case, as earlier noted, the Court held that, from the fruits of an investigation, the prosecutor has a duty to disclose to the accused all information, save that which is clearly irrelevant.

125In R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, at paragraph 30, citing Stinchcombe, Sopinka J., stated:

Nonetheless, the Crown's obligation to disclose is not absolute. (R. v. Stinchcombe, supra at p. 339): "While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant ...

Relevance is determined in relation to its use by the defence (at p. 340): ... " The trial judge on a review should be guided by the principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence unless the non-disclosure is justified by the law of privilege.

See also O'Connor, supra, at paragraph 22, and R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, at paragraph 42.

126In R. v. Egger, 1993 98 (SCC), [1993] 2 S.C.R. 451, at paragraph 20, the Court held that relevance, in the disclosure context, is a function of whether the material sought might reasonably be used by the accused to meet the case of the Crown, advance a defence, or make a decision affecting the conduct of the defence, for example, whether to call evidence.

127The threshold for disclosure is a low one and the scope of what will be considered to be relevant is broad. As Charron J. stated, at paragraph 33 of McNeil:

"Likely relevant" under the common law O'Connor regime means that there is "a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify" (O'Connor, at para. 22 (emphasis deleted)). An "issue at trial" here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also "evidence relating to the credibility of witnesses and to the reliability of other evidence in the case" (O'Connor, at para. 22). [Emphasis added.]

As the authorities also make clear, however, the right to disclosure, while fundamental, is not without limit. It does not extend to any and all information in the possession of the police, but, rather, must bear some touchstone to the prosecution at hand.

128In R. v. Gingras (1992), 1992 2826 (AB CA), 71 C.C.C. (3d) 53 (Alta. C.A.), one aspect of the appeal centred on the quashing of a subpoena to produce documents relating to a former prisoner who was about to testify for the Crown. At paragraph 15, the Court held:

[T]he records sought to be produced had nothing to do with the crime or the matters in issue in the present case. Indeed they had nothing whatever to do with the accused. The hope was presumably that something might be found in the records in question which would bear on the credibility of a prospective Crown witness. There was patently no prospect whatever that the files would contain anything relevant in any way to the issues in the prosecution. The only possible matter would be a collateral one.

The reasoning in Gingras was cited with approval in McNeil.³⁴

129In R. v. Girimonte (1997), 1997 1866 (ON CA), 121 C.C.C. (3d) 33 (Ont. C.A.), a case in which the defence sought disclosure of information and documents unrelated to the matter before the court, Doherty J.A., speaking for the court at paragraph 11ff., stated:

11 I need not make an item-by-item analysis of the appellant's demand for disclosure. Full disclosure is fundamental to the right to make full answer and defence. The Crown has both a legal and ethical obligation to make that disclosure. While the Crown's obligation to make full disclosure is quite properly stressed, defence counsel also has an obligation to act "responsibly" in the course of the disclosure process ... Some of the items which the appellant sought produced are clearly beyond the pale of any reasonable disclosure demand.

12 Disclosure demands which are no more than "fishing expeditions", seeking everything short of the proverbial kitchen sink undermine the good faith and candour which should govern the conduct of counsel... Disclosure demands like some of those made in this case seem calculated to create needless controversy and waste valuable resources rather than to assist the accused in making full answer and defence. [Emphasis added.]

130In O'Connor, at paragraph 194, McLachlin J., as she then was, stated:

194 Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence. From the accused's perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness. When other perspectives are considered, however, the picture changes. The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system - all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the law requires. [Emphasis added.]

131In considering whether material sought by the defence meets Charron J.’s test of “a reasonable possibility of being useful to the defence”, I am mindful of her comment at paragraph 22 of McNeil:

At this stage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial. The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position.

132While the likely relevance threshold is not meant to be onerous, particularly in view of an accused being in the unenviable position of having to argue the issue in a vacuum, in R. v. Thompson, speaking for the court, Goudge J.A. stated “[t]his passage clearly cannot be taken to mean that the accused can always satisfy the likely relevance requirement by means of the oral submissions of counsel.”: [2009] O.J. No. 1109 (C.A.), at para. 15, citing O'Connor at para. 19.

133In a similar vein, in R. v. Hart (L.) (1995), 1995 10589 (NL SC), 134 Nfld. & P.E.I.R. 199; 417 A.P.R. 199 (Nfld. T.D.), Mercer J. stated:

Certain arguments for disclosure are clearly insufficient. To state simply that the records may be relevant to credibility cannot justify production barring evidence of material in the records relevant to credibility on a particular issue. An applicant cannot simply invoke credibility 'at large'. Nor are records to be produced simply on an assertion that they may disclose a prior inconsistent statement unless there is a basis established for a belief that such evidence may be found.

134In the case at bar, the argument is not that the material impacts on the credibility of the witness, but, rather, the reliability of his evidence. That said, Mercer J.’s remarks apply with equal force. Although the argument is advanced that the material sought might contain information that would detract from such reliability, no basis has been established upon which to reasonably draw that conclusion.

Purported Relevance of the Material Sought in this Case

135As for the case at bar, in his prayer for relief, Mr. Heath sought the following material:

Project Kryptic hard-drive disclosure, including, transcripts and wave files of each intercepted communications [sic] relied on by Det. Backus in formulating his expert opinion in the case at bar;

Project XXX transcripts and wave files of the intercepted communications relied on by Det. Backus in formulating his expert opinion in the case at bar; and

Project Fusion transcripts and wave files of the intercepted communications relied on by Det. Backus in formulating his expert opinion in the case at bar.

136Before dealing with each project individually, I will make several observations applicable to all.

137It is important to observe that the material sought formed no part of the investigation into this crime and the Crown does not seek to use it against the accused. Moreover, none of the projects is directly relevant to the prosecution at hand. Indeed, all of the investigations have been long since concluded, although some prosecutions arising from these projects are still ongoing.

138In this case, the notice of application indicated that the material sought was relevant to whether Smelie was a member of Driftwood and whether a gang rivalry existed between the Jamestown Crips and the Driftwood Crips. In contrast, the affidavit initially filed in support of the application, but later withdrawn, simply made the bald assertion, with no further amplification, that the Kryptic disclosure, in particular, was “directly relevant to the expert opinion evidence sought to be adduced by the crown [sic] through Detective Backus; namely, whether a gang rivalry existed between the Jamestown Crips and the Driftwood Crips.” ³⁵ Nothing was said in the affidavit concerning how the other material sought in this application was relevant to the opinion that Smelie was a member of Driftwood.

139As for oral submissions, even allowing for the fact that the defence need not state with precision how the material might be used, the defence submissions on this application respecting all three sets of material sought, but in particular Fusion, were, with respect, extremely vague. They consisted, in the main, of the repeated assertion, without more, that the defence required the disclosure to make full answer and defence. When, at one point during oral argument, I asked Mr. Heath for some specific example as to how the material might be of use, the only response offered was, as earlier noted, that the material might reveal that Backus had “strategically edited” his evidence to omit any reference tending to undermine his opinions. As also noted, however, Mr. Heath acknowledged he had no basis for that suggestion.

140Against that backdrop, I turn to the individual projects.

(i) Project XXX

141Respecting Project XXX, the accused already have full disclosure of that which was disclosed to counsel for the persons who came to be charged when the investigation concluded. Even though there is no direct link between the matters under investigation in that project and the case at bar, the Crown saw fit to disclose this material earlier because Backus’ opinion that Smelie is a Doomztown member is based, in part at least, on communications he listened to, pursuant to a Part VI authorization granted in Project XXX, in which Smelie is a participant. Further, Backus’ opinion that Gager is a Doomztown member is predicated on letters Gager is said to have sent to Anthony St. Louis and Backus knows of St. Louis’ involvement in Doomztown by virtue of having listened to XXX intercepts.

142As earlier noted in respect of s. 189(5), the defence are not entitled in the circumstances of this case to either a transcript or the actual recording of the calls in question. That said, they have all they are entitled to have respecting XXX.

(ii) Project Fusion

143As for Project Fusion, on December 15, 2011, at a time before I gave my oral ruling on the applicability of s. 189(5), Mr. Heath indicated that he was no longer seeking anything beyond that which would be covered by the s. 189(5) notices. Mr. Fishbayn, who as of that point had not yet abandoned the application, joined Mr. Heath in that position. Therefore, given my finding on the applicability of s. 189(5), as set out above in relation to Project XXX, the defence already has that to which it is entitled respecting Project Fusion.

(iii) Project Kryptic

144The demand respecting Project Kryptic does not resolve itself quite so easily.

145To begin, without repeating my comments concerning the tardiness of this application, it is worthy of note that, unlike the relief sought respecting Fusion and XXX, respecting Kryptic, although they later came to revise their demands, initially the applicants did not restrict themselves to seeking merely the transcripts and recordings of the intercepts mentioned in the s. 189(5) notices said to have prompted the application. Rather, in addition, they sought “hard-drive disclosure” or, in other words, the fruits of the entire investigation. No one disputes that the investigation was a massive undertaking. Two examples are illustrative. First, the intercepts alone number approximately 200,000; of those, approximately 15,000, are thought by Backus to reflect criminality. Second, the two informations to obtain (“ITOs”) the initial wiretap authorization and a further extension total approximately 4,000 pages. Therefore, as can be seen at a glance, the magnitude of what is being sought, without proper notice and while the trial is ongoing, is nothing short of colossal in scope.

146The material sought is said to be vital to the ability of the accused to challenge Backus’ purported expertise and, more particularly, the admissibility of the opinions the Crown seeks to proffer through him. This is so, counsel contend, because Kryptic concerned the activities of Driftwood, with whom Doomztown are said to be in conflict. Some of that expertise and, indeed, some of the opinions are said to be based on information Backus learned during Kryptic.

147Respecting transcripts of intercepts, which Mr. Heath indicated in oral submissions were his principal interest in this application, many calls, as earlier noted, have not as yet been transcribed and, depending on the needs of the Kryptic prosecutions, may never be transcribed. That said, if I were to have ordered the disclosure sought, the police would have had to retrieve the calls, have them transcribed,³⁶ have copies made and then deliver the material to Crown counsel, who, in turn, would have to vet the material for disclosure.

148This trial is presently underway. Although Mr. Heath indicated in oral submissions that he was principally interested in certain intercepts, he did not identify them and the fact remains that, initially at least, he formally sought the entire investigative results of one massive police project and significant portions of the investigative results of two others. It is trite to observe that to competently and diligently prosecute a trial such as this is an all encompassing endeavour and a weighty responsibility. Given the sheer volume of the material sought, the task of vetting it for disclosure would be an enormous additional burden to impose on the prosecution at this stage³⁷, not to mention the potential to delay the trial of the accused, who have been in custody more than three years at this point.

149Later in the course of the application being heard, Mr. Heath indicated that he would be content with only those Kryptic intercepts that were relevant to the issue under consideration, namely, rivalry between Doomztown and Driftwood. What that revised position fails to take into account is that Crown counsel would have to vet the entire 200,000 intercepts in order to be in a position to responsibly indicate that they were disclosing all relevant calls. Rather than lessening the burden on the prosecution, that would significantly increase it. At a point later still in the course of the application, Mr. Heath purported to further limit his demand to include only intercepts involving any primary or secondary targets named in the authorization involving contact between Doomztown and Driftwood. This second revised demand, while presumably somewhat easier to satisfy than the first, would still be an enormous undertaking.

RESULT

150In R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paragraph 29, Charron J. stated:

The importance of preventing unnecessary applications for production from consuming scarce judicial resources cannot be overstated; however, the undue protraction of criminal proceedings remains a pressing concern, more than a decade after O'Connor.

That statement is apposite this application.

151These proceedings were protracted considerably by an application that was utterly without merit. Indeed, while I do not go so far as to say it was intended to be, having regard to:

(i) the minimal relevance, if any, of the material sought;

(ii) the time at which this relevance ought to have been apparent to counsel for the applicants, as opposed to the time at which the application was brought;

(iii) the sheer enormity of what was sought;

(iv) the Herculean burden an order of disclosure would impose on the prosecution;

(v) the potential for significant delay of the trial; and

(vi) counsel for the applicants’ failure to appreciate, or indifference to, as the case may be, any of the foregoing factors;

I am of the opinion that the application was frivolous. Further, while, again, I stop short of saying that the application was intended to be, I am of the opinion that, had the relief sought been granted, the result would have been vexatious.

152In the result, on December 20, 2011, I denied the application on the basis that likely relevance had not been shown. That was at a time before I had decided the Backus application. In light of the subsequent outcome of that application, the following postscript to this application is apposite.

153It is important to note that, according to the notice of application, the disclosure sought was only contended to be relevant to the issues of whether Backus could give evidence concerning Smelie’s membership in Driftwood and the rivalry said by the Crown to exist between Doomztown and Driftwood.³⁸ As the reasons that follow will reveal, I will not permit Backus to opine on those issues. That said, if I was wrong in holding that O’Connor, as opposed to Stinchcombe, applied to this application or if I was correct that O’Connor applied, but wrong in concluding that likely relevance had not been demonstrated, in either event the decision to refuse this application was effectively rendered moot.

EXPERT EVIDENCE (STREET GANGS)

INTRODUCTION

154As earlier indicated, the Crown seeks to have Detective Backus qualified as an expert in the field of Toronto street gangs. The accused argue that Backus is not properly qualified to give the evidence the Crown proposes to have him offer.

DISCUSSION

155To begin, as in R. v. Abbey, 2009 ONCA 694, “gang culture and the murderous violence it promotes [are] unavoidably central features of the factual matrix of this trial.” Thus, it is necessary to “equip the jury with all relevant, reliable information available and needed to arrive at a correct verdict, while avoiding exposure to information that could invite a verdict based on the jury’s understandably negative reaction to those who [are] part of the gang culture”: Abbey, para. 60.

156When admitting expert evidence, caution is required to ensure that it does not “swallow whole the fact-finding function of the court, especially in jury cases”: Abbey, para. 71. As Doherty J.A. characterized it, “[t]he judicial challenge is to properly control the admissibility of expert opinion evidence, the manner in which it is presented to the jury and the use that the jury makes of that evidence”: para. 73. In coming to grips with this challenge, Doherty J.A. recommended trial judges adopt a two stage approach. In the first, the court must ensure that the basic preconditions for the admissibility of expert evidence are satisfied. Assuming the evidence passes that hurdle, the court must go on, at the second, or so-called “gatekeeper”, stage, to engage in a cost/benefit analysis with a view to deciding whether the evidence is “sufficiently beneficial to the trial process to warrant its admission despite the potential harm that may flow from the admission of the expert evidence”: para. 76.

STAGE 1: PRECONDITIONS FOR ADMISSIBILITY

157The conditions precedent for the reception of expert evidence are well settled; they are relevance; necessity in assisting the trier of fact; the absence of any exclusionary rule; and a properly qualified expert: R. v. Mohan (1994), 1994 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.).

Absence of any Exclusionary Rule

158It is not argued that any exclusionary rule precludes the reception of the proposed evidence.

Necessity

159Although not formally conceded, the only argument that the proposed evidence is not necessary is advanced by Mr. Fishbayn in relation to the interpretation of Gager’s letters that the Crown proposes that Backus give the jury.

160Albeit the average member of the public is likely aware of the existence of street gangs, he or she is apt to be largely ignorant of the raison d’etre, structure and functioning of street gangs, including such aspects of the gang phenomenon as may be important in this case, namely, territoriality and inter-gang rivalry.

161Accordingly, I am satisfied that Backus’ evidence is necessary in the sense in which that word is understood in this context; i.e. it is more than merely helpful; rather, the jury is unlikely to properly understand the factual matrix surrounding this shooting without the benefit of his expertise.

Relevance

162Counsel for the accused strenuously assert that the proffered evidence is neither logically nor legally relevant.

163I will discuss logical relevance when I come to examine the proffered evidence against the indicia of reliability set out by Doherty J.A. in Abbey. I will examine legal relevance at the gatekeeper stage.

Properly Qualified Expert

164The main thrust of counsel’s opposition to the proposed evidence is that Detective Backus is not an expert. As with logical relevance, I will consider this issue against Doherty J.A.’s indicia of reliability.

Indicia of Reliability

165In Abbey, at paragraph 119, the court set out a list of criteria against which to assess the reliability of expert testimony. Those criteria form a helpful framework against which to measure the evidence proffered in this case.

To what extent is the field in which the opinion is offered a recognized discipline, profession or area of specialized training?

166Although as a general rule, the admission of expert evidence in one case does not necessarily have precedential value in later cases, the fact that opinion evidence proffered in one case is identical, or nearly so, to opinion evidence previously held by appellate courts to be properly admissible is an important factor in considering the admissibility of that evidence: R. v. K.(A.) and K.(N.), 1999 3793 (ON CA), 137 C.C.C. (3d) 225, (Ont. C.A.), at 261; Hill, Tanovich, Strezos and Hutchinson, McWilliams’ Canadian Criminal Evidence, 4th Ed., (Toronto, Carswell: 2003) at p. 12-22). As was stated in R. v. J. (J.L.) (2000), 2000 SCC 51, 148 C.C.C. (3d) 487, (S.C.C.), "widespread acceptance can be a factor in ruling evidence admissible ..." That said, expert evidence on the subject of criminal associations, has been widely accepted: Caccamo, supra; R. v. Ma (1978), 1978 2438 (ON CA), 44 C.C.C. (2d) 511 (Ont. C.A.); R. v. Lindsay, 2004 34074 (ON SC), [2004] O. J. No. 4097 (S.C.J.). More particularly, evidence of the nature and practices of street gangs is also routinely accepted: R. v. G.R.D., [2010] S.C.C.A. No. 440; R. v. Sarrazin, 2010 ONCA 577; R. v. Valentine, [2009] O.J. No. 5953 (S.C.J.); R. v. J.G., [2005] O.J. No. 4599 (S.C.J.). Indeed in this case, counsel take no issue with the area of expertise per se, but, rather, with qualifications of the proffered expert.

To what extent is the work within that field subject to quality assurance measures and appropriate independent review by others in the field?

167As Mr. Fishbayn has pointed out, the area appears to be one in which there is relatively little literature and little in the way of quality assurance measures. However, while certainly a factor to be considered, that does not necessarily militate for exclusion. Moreover, not all evidence is to be weighed in the same way in this respect. In Abbey, at paragraph 112, Doherty J.A., referred with approval to U.S. v. Hankey, 203 F. 3d 1160 (9th Cir. 2000), a case involving expert evidence on the subject of gangs, where at 1169, the court held:

Given the type of expert testimony proffered by the government, it is difficult to imagine that the court could have been more diligent in assessing relevance and reliability. The Daubert factors (peer review, publication, potential error rate, etc.) simply are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it. [Emphasis by Doherty J.A.]

168Those remarks are apposite this case. Backus’ knowledge is, for the most part, based on his own experience, which is both extensive and current. There is little, if any, theory underlying this body of knowledge; rather, it is empirically based. As for methodology, again, there is little in the way of formal method underlying it. The only methodology referred to in the evidence is the TPS protocol for determining whether a person is likely a gang member, but, as Backus indicated in his testimony on this voir dire, that instrument is intended largely for the aid of those who do not have his expertise.

What are the particular expert's qualifications within that discipline, profession or area of specialized training?

169Provided the court is satisfied that the witness is sufficiently experienced in the subject matter at issue, the admissibility of expert evidence does not depend on how the expertise was acquired, although that may affect the weight to be given to the evidence: R. v. N.O., 2009 ABCA 75, [2009] A.J. No. 213 (C.A.), citing Sopinka, Lederman and Bryant, The Law of Evidence of Canada 2nd Ed. (Markham, Ont., LexisNexis: 1999), at pp. 536-537.

170Detective Backus’ extensive qualifications have been referred to above. Indeed, defence counsel do not object that he lacks experience per se; rather, as I will discuss below, their complaints lie elsewhere.

171Although Mr. Fishbayn notes that Backus was never qualified as an expert before testifying at the preliminary inquiry in this case, the fact remains that he has previously been qualified as an expert by other courts: Sappleton, supra, R. v. Pierre, 2011 ONSC 3422 (S.C.J.); R. v. Mills and Williams, (September 29, 2011, unrep., O.C.J.).

172In Sappleton, at paragraph 175, Trafford J. found Backus to be an expert in the field in which he is offered in this trial. In making that ruling, Trafford J. said:

The absence of ... academic achievements does not necessarily lead to the conclusion that [Backus] is not an expert. Some experience by some police officers in some circumstances can make them experts in a carefully defined area. The nature and scope of Backus' expertise is an issue I will comment upon shortly. However, he is a policeman in Toronto who, over the last five years, has developed a significant body of knowledge about some aspects of the existence of street gangs in Toronto.

I adopt those remarks.

173In addition to his general complaint that Backus ought not to be considered an expert, Mr. Fishbayn takes particular exception to Backus being qualified as an expert in the area of gang slang or the patois spoken in many of intercepted communications to which he has listened because, as Detective Backus acknowledged at the preliminary inquiry, he does not speak patois. For the following reasons, I do not see this as an impediment to qualifying the officer in this aspect of his proposed evidence or more generally.

174First, I am satisfied from Backus’ evidence that he understands, if not all, certainly most of what he hears in that regard.³⁹ In Abbey, at paragraph 159, Doherty J.A. noted that “[a] witness's ability to speak to the common understanding of a symbol comes not from the reliability of any particular source of knowledge but from that witness's day-to-day living within the culture.” The same can be said for language: R. v. C.M., 2010 ONSC 4819, at para. 13. I am satisfied that the extent to which Detective Backus now needs assistance with the language used by the persons to whose communications he is listening is minimal.

175Second, apart from the letters, I do not expect that Backus will be asked to interpret anything else. As for the letters themselves, while Backus’ assistance will be necessary for some of the terms, because they will be unfamiliar to the average juror, there is no significant amount of patois in the letters.

176Other things being equal, then, Detective Backus’ knowledge is sufficient to qualify him as an expert in the areas in which he is being proffered.

To the extent that the opinion rests on data accumulated through various means such as interviews, is the data accurately recorded, stored and available?

177To the extent that Detective Backus relied on CI information, counsel argue that the court should be concerned that such information is known in many cases to be inaccurate, thereby undermining Backus’ claimed expertise. I disagree. As pointed out in Abbey, where an expert depends on information from other individuals it is inevitable that some of them may have been deceitful, such that, if courts were to require proof that an expert’s data base was free from false information, few, if any, experts would ever be qualified. Doherty J.A. went on to indicate that, as opposed to being required to demonstrate that the information was accurate, the Crown must demonstrate “sufficient indicia of reliability to warrant placing an opinion based on that information before the jury so that it [can] make the ultimate determination on the reliability of that information and the validity of the opinion based on it”: para. 130.

178To the extent that Backus’ knowledge rests on recorded interviews, as became clear in the second phase of the first applications for further disclosure, the manner in which the debrief forms were handled is questionable. There was no firsthand evidence as to how they were compiled and whether the persons “cooperating” by providing answers were doing so in earnest or, as Mr. Fishbayn suggested, in some cases at least, trifling with the police. Moreover, the Crown was only able to produce a small percentage of the total number of debrief forms. That said, the forms were only an infinitesimal part of Backus’ informational base for one aspect of his expertise, namely, understanding gang slang. Thus, in my opinion, any shortcomings in this respect are of no real import in terms of whether Backus should be qualified as an expert.

179On the other hand, in sharp contrast to the situation with the debrief forms, the major component of Backus’ knowledge derives from listening to thousands of intercepts. All those intercepts are carefully recorded and stored and, as discussed above, counsel have disclosure of many of the intercepts in question.

To what extent are the reasoning processes underlying the opinion and the methods used to gather the relevant information clearly explained by the witness and susceptible to critical examination by a jury?

180Although it is true to say that, by virtue of privilege, some of the information upon which Backus relies for his opinions is not available to counsel or the jury, certainly the methods by which he gathered his information are all readily available to be critically examined by the jury. As for the reasoning processes Backus applied to the information he gathered, they, too, can be laid bare for the jury’s consideration during cross-examination.

To what extent has the expert arrived at his or her opinion using methodologies accepted by those working in the particular field in which the opinion is advanced?

181Defence counsel argue that the evidence proffered in this case fails to measure up to the first of the four “predicates” of the “evidence-based” approach recommended by Professor Paciocco in his recent article on expert evidence,⁴⁰ namely, that “the theory or technique used by the expert must be reliable and so too must the use of that theory or technique by the expert…” In contrast, counsel contend that Backus has no methodology worthy of the name.

182Mr. Fishbayn cites as an example of this alleged failing the fact that the officer did not use the established TPS protocol for deciding whether someone is a gang member. Mr. Fishbayn argued that this is a particularly difficult area in which to challenge a witness because there is very little literature in the field and very few authoritative standards against which to assess the methods used and results achieved by a proposed expert witness. One of the few standards of which counsel is aware is the TPS protocol and the court should find it troubling, counsel asserts, (i) that the witness did not avail himself of that standard in deciding that the accused are gang members and (ii) that once having come to that opinion, Backus did not check his own conclusions against the protocol.

183Backus was not asked to employ the protocol. Indeed, as I understood his evidence on this hearing, there is no standing rule that this protocol must be employed before drawing the conclusion that someone is a gang member; rather, as earlier noted, the protocol is designed to assist persons without Backus’ expertise to make such a determination. Thus, in light of the above quoted passage from Hankey concerning methodology, cited with approval in Abbey, I do not find it particularly odd that Backus relied directly on his own experience to draw the conclusions in question. By comparison, it is not unlike a psychiatrist making a diagnosis without referring to the Diagnostic and Statistical Manual. While in a perfect world, perhaps, the practitioner would do so, I suspect that it is not at all uncommon for experienced doctors, to make diagnoses without referring to the manual simply because, at least respecting the most common disorders, they are thoroughly conversant with the symptoms. Furthermore, given that I have decided to disallow most of the opinions the Crown seeks to have Backus offer and to permit him to testify only on his knowledge of gangs gained from empirical observation it is, at the highest, a matter going to the weight to be attached to his evidence, not its admissibility.

To what extent do the accepted methodologies promote and enhance the reliability of the information gathered and relied on by the expert?

184Defence counsel contend that, because Backus employs no sound methodology, some of his opinions are patently unreasonable. All of that can be brought out effectively during cross-examination. Moreover, as I indicated to Mr. Fishbayn during oral argument, if, in their view, Backus’ method is either undisciplined or, worse yet, non-existent, or if his opinions are as unreasonable as counsel contend, there is nothing to prevent them from calling evidence to rebut his evidence.

185Counsel further argue that, even assuming one could call his approach a methodology, Backus is too careless to be considered an expert. Mr. Fishbayn, in particular, spent a great deal of time picking out errors in the various reports Backus has prepared for the prosecution since he was initially consulted. While I agree that Backus could have used more care in the preparation of some of his work, I disagree that his lack of care rises to the level that it should disqualify him from being considered an expert. Indeed, in Sappleton, Trafford J. remarked on several aspects of Backus’ lack of care, yet went on to qualify him as an expert.

To what extent has the witness, in advancing the opinion, honoured the boundaries and limits of the discipline from which his or her expertise arises?

186Defence counsel argue that Backus is too biased to be qualified as an expert.

187In R. v. Bertram, [1989] O.J. No. 2123 (H.C.J.), Watt J., as he then was, defined bias as "a leaning, inclination, bent or predisposition towards one side or another or a particular result" and, further, "[i]n its application to legal proceedings, . . . a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction". Although Watt J. was speaking of a jurist, the definition is nonetheless apt in this context.

188Even where there is no dispute as to the expertise of a witness, a perceived bias on the part of a proposed expert witness may require the court to exclude the witness’ evidence: R. v. Docherty, 2010 ONSC 3628, [2010] O.J. No. 3460 (S.C.J.). However, as Wein J. observed at paragraph 12, “little precedent exists for legal rejection of expert opinion evidence on the basis of bias or the apprehension of bias.” That said, a helpful précis of the law on this subject is found in R. v. L.K., 2011 ONSC 2562, [2011] O.J. No. 2553 (S.C.J.), at paragraph 9 ff. At paragraph 9, Trotter J. stated “bias or partiality is not explicitly identified as a pre-condition for qualification as an expert witness. But it is certainly implicit in more than one of the Mohan factors.” He went on in the next paragraph to indicate that the decision whether to exclude proffered expert testimony on the basis of bias is a matter of “residual discretion... after engaging in a costs/benefits analysis.”

189Mr. Fishbayn contends that one can reason a priori from the fact that Backus is a policeman that he is naturally predisposed toward the prosecution. I disagree. I do not accept that the mere fact that Backus is a police officer, without more, ought to disqualify him as an expert. Obviously, police officers are routinely qualified as expert witnesses in various capacities.⁴¹

190One can also reason empirically that Backus is biased, Mr. Fishbayn asserts, because his efforts to date demonstrate that he is bent on demonstrating both that there was a gang war between Doomztown and Driftwood ongoing at the time of the shooting and that the accused were members of Doomztown.

191Mr. Fishbayn cites as an example of Backus attempting to make the facts fit the Crown theory the fact that, as earlier mentioned, Backus did not employ the TPS protocol for determining whether someone is a gang member, until he realized that he was going to be challenged in cross-examination on this voir dire for his failure to do so. Then, and only then, did Backus use the protocol and, not surprisingly, according to Mr. Fishbayn, Backus concluded that both accused fit the profile.

192I do not agree that, as counsel suggest, Backus is attempting to make the facts fit the hypothesis, so as to, in turn, provide the opinions desired by the Crown. I note, by way of example, that when first asked to opine on the Gager letters, Detective Backus “knew nothing about the case other than that it was a homicide.”⁴² As opposed to showing a desire to achieve, by any and all means at his disposal, the result sought by the prosecution, that demonstrates to me a desire to remain neutral. Had he been as intent as counsel suggest on tailoring a result to fit the needs of the homicide investigator or the prosecutor, as the case may be, it strikes me that Backus would have made inquiries concerning the facts of the case.

193As another example of Backus’ alleged bias, Mr. Fishbayn made much in oral argument of the fact that Backus would rarely, if ever, acknowledge a proposition suggested to him in cross-examination. It is fair to say that Backus holds firm opinions. It is also true that, despite vigorous cross-examination, he was not willing to abandon certain of those opinions, even where, objectively viewed, their foundations appear to be weak.⁴³ That may make him stubborn, but it does not does not make him biased. It does not follow from the mere fact that Backus does not adopt suggestions put to him by defence counsel that he is not giving his evidence in a reasonably objective fashion. Certainly, the same can be said of many expert witnesses; yet it does not disqualify them from giving evidence.

194Having read the entirety of his evidence from the preliminary inquiry and having listened to his evidence on this hearing, I am of the view that Backus gave his evidence in both proceedings in a fair minded fashion. I am mindful in saying that of the fact, as earlier noted,⁴⁴ that Backus went out of his way at the preliminary inquiry to provide additional material sought by the defence, sometimes without being asked to do so.

195In Sappleton, at paragraphs 45 to 50 inclusive, Trafford J. expressed considerable concern about what he felt was a lack of objectivity on Backus’ part. Ultimately, however, despite those misgivings, he admitted Backus’ evidence for the reason that what he considered a lack of objectivity “did not relate to the core of the information he relied upon in the preparation of his opinion”: para. 50.

196In this case, although I agree that Backus might have been more careful in certain respects in preparing his opinions and more circumspect of some of the information upon which he chose to rely in so doing, overall I do not have misgivings of the sort Trafford J. expressed in Sappleton. Moreover, for reasons that will become apparent when I come to discuss the scope of what Backus will be permitted to say, I am satisfied that any shortcomings on Backus’ part in this respect do not go to the core of the information I propose to allow him to impart to the jury. That said, the extent, if any, to which Backus can be said to be less than fair-minded is, to my mind, a matter going to the weight to be accorded his evidence; it does not rise to the level where I feel the need to exercise my discretion to exclude his evidence.

197The extent to which Detective Backus has respected the legitimate boundaries of this area of expertise is a subject that can be fully explored in cross-examination.

To what extent is the proffered opinion based on data and other information gathered independently of the specific case or, more broadly, the litigation process?

198On the one hand, with the exception of the Gager letters, the entirety of Detective Backus’ information is gathered independently of this specific case. On the other hand, given the nature of Backus’ employment, the phenomenon forming the subject matter of his expertise and the natural outcome of many, if not most, police investigations, it is, of course, almost impossible to satisfy the second aspect of this criterion. That said, as Doherty J.A. pointed out at paragraph 124 of Abbey, the concern here is whether the proposed expert “sought, consciously or subconsciously to lend his expertise to one side of the legal controversy.” While certainly, unlike the expert in Abbey, Detective Backus did not gather his information in a research study, he gathered it in a milieu sufficiently detached from this case that there is little danger of confirmation bias. Moreover, any such bias can be exposed during cross-examination.

STAGE 2: COST/BENEFIT ANALYSIS

199I turn now to the second stage of the analysis, the so-called “gatekeeper function”.

200To begin on the cost side of the ledger, some of the concerns cited in Abbey are undue consumption of time, prejudice, confusion, the expert’s impressive credentials, the impenetrable jargon in which his evidence is couched and the cross-examiner’s inability to expose any shortcomings in the opinions advanced: para. 90, citing R. v. J. (L.J.), supra.

201Dealing first with the undue consumption of time, in this case I do not see this as significant. I am confident that Detective Backus’ evidence can be presented in relatively short order.

202As for the possibility confusion, and the jargon in which the evidence is couched, again, I do not consider the cost of receiving the evidence to be high. Albeit this is an area with which the jury is apt to be unfamiliar, there is nothing terribly complex or intellectually challenging about the nature of the evidence and, although some of the language used by the persons whose communications were intercepted is apt to be foreign to the jury, the language in which Backus will give his evidence is neither overly technical nor sophisticated. Thus, Backus’ evidence is very unlikely to engender any confusion.

203As for impressive credentials, meaning him no disrespect, while he has vast experience, Backus does not have what would be considered by most people to be impressive credentials in the sense in which that term is normally understood. Thus, the jury is not apt to be overawed by Backus’ accomplishments so as to abdicate to him their fact-finding role.

204A further concern was raised in Sappleton, at paragraph 205, where Trafford J. expressed the view that there was a risk that “the jurors may arbitrarily identify with a police officer who is dedicated to maintaining the safety of their community against street gangs, without any critical analysis of his opinion.” Respectfully, I disagree. While I expect the average jury member likely holds police officers in some esteem, I do not accept the proposition that, simply because Detective Backus has a sworn duty to maintain public safety, the jurors will be apt to accept his views without careful scrutiny. I am reinforced in that view in this case by virtue of the extent to which I propose to limit his evidence to matters of what I consider to be fact, as opposed to opinion.

205Turning to the main concern on the cost side, it is self evident that some measure of moral prejudice against an accused is apt to arise from being immersed in, or associated with, gang culture: Abbey, at para. 60; R. v. Sarrazin, 2010 ONCA 577, at para. 18. Counsel argue, therefore, that, even if the court finds Backus’ evidence sufficiently reliable to be received, the probative value of that evidence is outweighed by its potential prejudice, such that it fails to meet the test of legal relevance. I disagree.

206In R. v. Riley, 2009 15451 (ON SC), [2009] O.J. No. 1374 (S.C.J.), at paragraph 20 ff., Dambrot J. gave the following helpful précis on the admissibility of evidence of bad character:

20 Character evidence that shows only that an accused is the type of person likely to have committed the offence charged is usually inadmissible. (See, for example, R. v. S.G.G. (1997), 1997 311 (SCC), 116 C.C.C. (3d) 193 (S.C.C.) at para. 63).

21 However evidence that tends to show that the accused is a person of bad character but which is also relevant to an issue in the case does not fall within this exclusionary rule. (See R. v. B.F.F. (1993), 1993 167 (SCC), 79 C.C.C. (3d) 112 (S.C.C.) at para. 71).

22 As Lamer J. (as he then was) stated in R. v. Morris (1983), 1983 28 (SCC), 7 C.C.C. (3d) 97 (S.C.C.) at p. 106-7:

This is not to say that evidence which is relevant to a given issue in a case will of necessity be excluded merely because it also tends to prove disposition. Such evidence will be admitted subject to the judge weighing its probative value to that issue (e.g., identity), also weighing its prejudicial effect, and then determining its admissibility by measuring one to the other.

23 In other words, evidence that tends to show bad character or a criminal disposition on the part of an accused is admissible if (1) it is relevant to some other issue beyond disposition or character, and (2) its probative value outweighs its prejudicial effect.

207In this case, as noted above, the Crown contends that the evidence of bad character is relevant to motive, which, in turn, is “always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility”: R. v. S.G.G., supra, at para. 64, per Cory J., citing Lewis v. The Queen, 1979 19 (SCC), [1979] 2 S.C.R. 821.

208As the aforementioned authorities reflect, the fact that otherwise relevant evidence bespeaks bad character is no reason to exclude evidence, provided that the nature and scope of the evidence put before the jury, a topic to which I will turn momentarily, can be governed in such a way that the likely prejudice can be overcome by appropriate instruction.⁴⁵

209As articulated by Charron J.A., as she then was, in R. v. L.B. (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481(Ont. C.A.), at paragraph 24, when considering the possible prejudice arising from the admission of bad character evidence, the trial judge should consider:

(i) how discreditable it is;

(ii) the extent to which it may support an inference of guilt based solely on bad character;

(iii) the extent to which it may confuse issues; and

(iv) the accused's ability to respond to it.

210As noted above, obviously membership in, or close association with, a street gang is discreditable. Given the reason d’etre of such gangs and the frequently violent means by which they carry out their objectives, one could readily postulate that it might be considered highly discreditable in the mind of the average juror. That said, even assuming some or all members of the jury were to find it highly discreditable, it would be unlikely to support an inference of guilt based on bad character alone.

211As for confusing the issues, in Riley the accused was charged, inter alia, with a murder said to arise from inter-gang rivalry. Concerning the admissibility of evidence of the existence of a street gang and the accused’s membership in it, at paragraph 164, Dambrot J. found that, as well as being relevant, inter alia, to motive and planning and deliberation, the evidence was relevant to “provide essential context to the Crown’s allegation, particularly this shooting being part of a larger overall scheme, and to provide the jury with an intelligible description of the offence charged.” Likewise in this case, as opposed to confusing the issues, in my opinion this evidence is apt to clarify for the jury what occurred here. On the other hand, without the evidence tending to show hostility between the gangs and membership of the accused in Doomztown, and hence motive on their part, the jury may be unable to make any sense of the shooting.

212Given the limitations I intend to impose on the scope of Backus’ evidence, the accused will be able to respond to it. First, without taking the witness box, they can attack the underpinnings of Backus’ testimony, exposing any weakness in his assertions. Second, they can, if they choose, give evidence and deny membership in the gang or, in the alternative, admit membership, but deny the existence of the motive said to arise from Backus’ evidence.

RESULT RE QUALIFICATION

213Respecting Backus, I am satisfied on a balance of probabilities:

(i) that he has considerable expertise in an area with which the jury is very unlikely to be conversant, such that his evidence is necessary for the jury to have a proper understanding of the rest of the evidence they will hear;

(ii) that the evidence I will permit him to give is relevant;

(iii) that it is probative of issues the jury will be required to decide;

(iv) that any prejudice the evidence might entail can be overcome by appropriate instructions, with the result that its probative value outweighs any such prejudice; and

(v) that there is no exclusionary rule that would prevent the proposed evidence from being received.

214In the result, then, I find Detective Backus to be a qualified expert in the area of street gangs and, subject to the strictures set out below, he will be entitled to give evidence in this trial.

PERMISSIBLE SCOPE OF DETECTIVE BACKUS’ EVIDENCE

215Having decided that Backus is a properly qualified expert, it remains to determine what he may attest to and what he may not: Abbey, para. 62.

FACTUAL EVIDENCE

216In their text, The Law of Evidence, 3rd Ed., (Irwin Law, Toronto, 2002) Professors Paciocco and Stuesser state, at p. 173, that, in addition to giving opinion evidence, an expert may simply provide “general background information to the trier of fact that is useful in assessing evidence. This can be done without the expert commenting on the particular case." Similarly, in Gold, A., Expert Evidence in Criminal Law: The Scientific Approach 2nd Ed., (Toronto, Irwin Law, 2009), at p. 48, the author makes the point that an expert witness may “testify to a fact - as opposed to an opinion - which he observed through the employment of specialized knowledge and techniques."

217The demarcation between when expert evidence will constitute opinion and when it will amount merely to a statement of fact was recently discussed in R. v. Hamilton, 2011 ONCA 399, [2011] O.J. No. 2306 (C.A.).⁴⁶ In light of Abbey, where the court stressed the importance of the gatekeeper function and the trial judge’s critical task of ensuring that the witness does not exceed the scope of his expertise, that distinction becomes important in the sense that, to the extent that the evidence involves statements of fact as opposed to opinion, the chance that the expert will effectively overtake the jury’s fact-finding function is reduced.

218Against that backdrop, I consider that much of Backus’ evidence is not opinion as such, but, rather, general factual information. Albeit the average member of the public is likely aware of the existence of street gangs, he or she is apt to be largely ignorant of the raison d’etre, structure and functioning of street gangs, including such aspects of the gang phenomenon as may be important in this case, namely, territoriality and inter-gang rivalry. That said, to those who have expertise on the subject of street gangs, those matters are largely uncontroversial. Likewise, as Backus indicated, much of the slang used by gangs is somewhat universal and thus, by extension, I should think, largely uncontroversial. The extent to which that is not the case can be fully explored in cross-examination.

219It is understood that experts often rely on information that they have acquired through secondary sources and, provided that it is restricted to general, non-case specific, facts in their particular field, such evidence, while technically hearsay, is generally not objectionable: Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd Ed. (Markham, Ont., LexisNexis, 1999), at §§12.87 – 12.89.

220In Riley, at paragraph 205, Dambrot J. allowed hearsay evidence in this context on the basis that, as distinct from particular events having to do with the events under consideration at trial, “general testimony about the gang, its history, its membership and the nature of its activities stands on a different footing.” In so holding, he relied on R. v. Lindsay, 2005 479 (ON SC), [2005] O.J. No. 61, (S.C.J.) where Crown witnesses “were permitted to give opinion evidence about the nature and characteristics of the Hells Angels organization, the main purposes and activities of the Hells Angels organization and whether these activities constituted the facilitation or commission of serious criminal offences that afford a material benefit to its members. The opinion evidence was based on a mix of hearsay and non-hearsay information. The hearsay information included hearsay statements of Hells Angels members”: Riley, para. 206.

221For greater certainty, then, Backus may testify, and in so doing may rely on hearsay, concerning the following matters:

(i) the phenomenon of the street gang;

(ii) the structure and organization of gangs generally, including the affiliation of many local gangs to the overarching Bloodz and Cripz organizations;

(iii) the symbols and graffiti commonly used by gangs;

(iv) the concept of a street gang having a core territory;

(v) the use of graffiti by gangs to denote their territory;

(vi) the proposition that, for fear of reprisal, a gang member would not likely enter the territory of a rival gang absent a compelling reason to do so;

(vii) typical gang responses to perceived infringement of territoriality; and

(viii) the existence of such gangs in Toronto.

OPINION EVIDENCE

222As distinct from what I consider to be matters of fact, as discussed above, I turn now to several issues that involve Detective Backus’ opinions.

The Existence of the Doomztown Cripz and Driftwood Cripz

223In this case, to my mind, like the matters listed above, the existence of the two gangs in question is sufficiently well documented, by virtue of the respective police projects investigating their activities, that it can be said to be a matter of fact, as opposed to opinion.⁴⁷ On the other hand, in other recent cases, evidence concerning the existence of the gang in question in the case has been treated as opinion. On the retrial of Sarrazin, (2006, unrep. S.C.J.), Charbonneau J. held that the existence of the gang was a matter of opinion, but went on to hold that the Crown’s expert could impart the opinion to the jury: para. 57. In contrast, in Sappleton, while treating Backus’ evidence as to the existence of the gang as an opinion, Trafford J. held that Backus could not express that opinion, but, rather, could “only speak in terms of the likelihood of the existence of the gang⁴⁸..., given the information he considered”: para. 242. Although in my view postulating the existence of these gangs is tantamount to making a statement of fact, in an effort to strike the appropriate balance, I have decided to follow Sarrazin. Accordingly, Detective Backus will be permitted to express his opinion that the two gangs exist, but will not be permitted to state as a fact that they exist. In buttressing that opinion, he will be permitted to rely on hearsay information, provided that it has been disclosed to the defence. For greater certainty, to the extent that he is aware from his own firsthand knowledge, he may also opine on the degree, if any, to which the general customs and habits of street gangs, as discussed above, apply to these particular gangs.

Gager’s Membership in Doomztown

224Respecting his opinion that Gager is a member of Doomztown, Backus relies, in part, on the fact that he considers Anthony St. Louis to be a member of Doomztown coupled with his opinion that a non-gang member would not speak to a gang member in the way that Gager speaks to St. Louis in the letters. Backus is of the view that only someone of equal status in the gang hierarchy would address St. Louis in the way in which Gager addresses him in the letters.

225The problem with that reasoning is that throughout his evidence at the preliminary inquiry and on this voir dire Backus has referred to St. Louis variously as a member⁴⁹ an affiliate⁵⁰ and an associate of Doomztown.⁵¹ Detective Backus says that, among those conversant with street gangs, those terms have specific meanings that are quite different from one another.⁵² Therefore, if St. Louis is only an associate or an affiliate of Doomztown, as opposed to a member, then, obviously, it does not follow from the fact that Gager may speak to him as an equal that Gager is a member of Doomztown.

226Concerning Gager, Backus will be allowed to tell the jury the aspects of the letters that, with the benefit of his expertise, he considers are characteristic of things that would be likely to be said only if the author were a member of the gang. To put the letters in their proper context, Backus will be permitted to impart to the jury his knowledge of gang hierarchy, as well as the typical interrelation between gang members themselves, and between gang members and non-gang members, including how, in his experience, such persons are likely or not likely to address one another.

227Detective Backus will not, however, be permitted to state his opinion that Gager is a member of Doomztown.

228The Crown also seeks to prove the connection between the two men by having Detective Backus impart to the jury the fact that Gager “was co-accused with Anthony St. Louis in a robbery that occurred in 2005.”⁵³ That event is sufficiently dated that, in light of other evidence available to the Crown to show association between the two men, its probative value is outweighed by the obvious prejudice it entails. Accordingly, Backus may not mention the robbery charge.

Anthony St. Louis’ Membership in Doomztown

229As noted above, in support of his opinion that Gager is a member of Doomztown, Detective Backus relies, in part, on his opinion that Anthony St. Louis is also a member.

230Concerning St. Louis, Backus will be permitted to tell the jury of St. Louis’ connection to Doomztown, such as it emerges from the intercepts to which he has personally listened or any other source of which he has firsthand knowledge. He will not be permitted to convey to the jury any hearsay information he has received concerning St. Louis.

231Backus may also relate his firsthand knowledge of telephone contact between Gager and Anthony St. Louis’ brother, Nicholas, who, according to Backus, is known to be a member of the a gang called the Kipling Cripz.

232Backus will not be permitted to express his opinion that Anthony St. Louis is a Doomztown member or that Nicholas St. Louis is a member of the Kipling Cripz.

Smelie’s Membership in Doomztown

233Backus is of the opinion that Smelie is a member of Doomztown.⁵⁴ He bases this opinion, in part, on the number of people known to be members of the gang with whom Smelie associates.⁵⁵ I have difficulty with that aspect of his reasoning.⁵⁶ He also bases his opinion on numerous intercepts in which he has heard Smelie speak of various illegal activities with gang members, including guns and drugs.

234To express the opinion that Smelie is a member of Doomztown would not, as defence counsel suggests, be to express an opinion on the ultimate issue. The ultimate issue in this case, respecting Smelie, is whether he participated in a planned and deliberate murder of whatever unfortunate bystander the occupants of the stolen van might find at Driftwood Court on the evening of September 22, 2008.That said, while not the ultimate issue, it is an important fact in the Crown’s case for first degree murder that the men in the van were members of Doomztown and, further, that the gang had an animus toward Driftwood. The jury is the trier of fact, not Backus. All they need is the information that will allow them to properly determine whether Smelie is a Doomztown member. To that end, Backus can give them that information without the attendant conclusion that he has drawn from it.

235Backus will be permitted to mention any telephone intercepts to which he has personally listened in which Smelie says anything that indicates that he is a gang member.⁵⁷ In order to minimize the prejudicial effect, however, Backus will not be permitted, at the instance of the Crown, to delve into the specifics of the calls. Rather, he may simply indicate in a general way the nature of the call, the other party to the call, and, the connection, if any, of that other party to Doomztown, provided he is aware of that connection from his own knowledge.

236Backus may give evidence concerning intercepts he has heard in which Smelie is discussing controlled substances with other persons and concerning intercepts he has heard in which Smelie is discussing obtaining and/or using firearms and ammunition for the purpose of criminal activity or protecting gang territory. He may indicate in each case, if he knows, who the other person is and may impart to the jury his firsthand knowledge of the association of that person with other any person(s) associated with Doomztown, but may not opine that the person is a member of Doomztown.

237Backus may not mention in this context, at the instance of the Crown, any intercept to which Smelie is not a party. For greater certainty, he may not mention the intercept in which someone he believes to be Tristan Bailey, but pretending to be Smelie, discusses hostility between Doomztown and Driftwood.

238Backus may mention the fact that Smelie’s name or one of his several nicknames, as the case may be, was found in the electronic phone book of any of the telephones seized by the police in Project XXX from persons known to be associated to Doomztown, provided that Backus has firsthand knowledge of that association. He may not, however, mention the fact that some of those persons pleaded guilty to charges arising from Project XXX, including any criminal organization charges.

239Backus may give evidence as to his firsthand knowledge of the premises known as “the Mansion”, to which members of Doomztown routinely resorted to conduct criminal activities. He may also indicate that, in his opinion, a non-gang member would be unlikely to go to, or be welcome at, the Mansion.

240Backus may give evidence concerning the intercept in which Smelie allegedly speaks to one Akeem Bailey concerning the whereabouts of the “burner” because someone has entered “the hood”. While he may impart to the jury definitions of the terms “burner” and “hood”, he may not, however, give his opinion as to the meaning of the call.

241Backus may also impart to the jury any other indicia, of which he has direct knowledge, that he relies upon for his opinion that Smelie is a Doomztown member.

242In concluding that Smelie is a gang member, Backus also relies on “Smelie’s subsequent affiliation with Mr. Gager and the circumstances of his arrest on September 22, 2008...” Insofar as the motive for the shooting is said to be a pre-existing gang rivalry, to rely for proof of the motive on nature of the crime itself is circular, in my view, and, accordingly, Backus will not be permitted to state that the nature of the offence is a circumstance that is consistent with either Smelie or Gager being a member of Doomztown.

243Backus will not be permitted to state his opinion that Smelie is a member of Doomztown.

“Midnight’s” Membership in Doomztown

244Concerning the Gager letters, the letter postmarked October 30, 2008, makes reference to someone named “Midnight” who has been “droped”, which Backus understands to mean murdered. Detective Backus may explain to the jury the meaning of this terminology.

245Based on communications intercepted during Project XXX, Backus is of the opinion that Midnight was a member of Doomztown. That is said by the Crown to be important because Gager’s apparent upset at the news of Midnight’s demise is arguably some circumstantial evidence that Gager is himself a member of Doomztown.

246Backus can speak of the intercepts he himself has heard involving Midnight and may give to the jury any other firsthand information he has that would support the conclusion that Midnight was a member of Doomztown. He may not impart to the jury any second hand information in support of that conclusion. For greater certainty, he may not opine that Midnight is in fact Daniel Asarfo-Adejei, a member of Doomztown, who was murdered in Edmonton in 2008.⁵⁸ Likewise, he may not express his opinion that Midnight was a member of Doomztown.

Shane Salmon’s Membership in Doomztown

247In the course of the investigation, police found a fingerprint impression on the van they believe was used to carry out the shooting. The impression was identified as belonging to one Shane Salmon. Salmon was a co-accused on a charge of robbery in 2005 along with Gager and Anthony St. Louis. Obviously, the probative value of the evidence lies in Gager’s association with Salmon who is, in turn, forensically linked to the van. However, the robbery, and hence evidence of association between the two men, is temporally remote from the shooting and, in light of the fact that the van was stolen from Doomztown core territory, Salmon could have come in contact with the van at any time, not necessarily at the time of the shooting. Moreover, albeit there is no evidence tying the accused directly to the van, other evidence linking both Gager and Smelie to the shooting itself is very strong. Thus, the probative value of this indirect link of Gager to the van through Salmon is so slight as to be grossly outweighed by its obvious prejudicial effect. Accordingly, Backus is not permitted to mention the robbery as the basis for associating the two men. He may, however, subject to being vetted by the court, give other evidence of which he is aware through his own firsthand knowledge that Salmon is associated with Doomztown. He may not, however, opine that Salmon is a member of Doomztown.

Summary Re Opinions on Gang Membership

248Whether Gager, Smelie, St. Louis, Midnight, Killa, or the rest of the persons named in the letters, anyone whose communications were intercepted, or anyone who was spoken about by others on the intercepts, was a member of Doomztown is not something upon which I will permit Backus to opine. I will, however, permit Detective Backus to give any evidence of which he is personally aware that links any of the aforementioned persons to Doomztown. Backus will also be permitted to impart to the jury the TPS protocol and its indicia of gang membership so that the jury will have some framework against which to measure his evidence concerning the various persons. It will then be for the jury to draw their own conclusions as to who was, or was not, a member of Doomztown.

Gang War Between Doomztown and Driftwood

249Backus postulates that, as of September 2008, a gang war existed between Doomztown and Driftwood. He has expressed that opinion with varying degrees of certainty at different times.⁵⁹ The opinion is based on the following factors.

(i) Gager Letters

250When he testified at the preliminary inquiry, Backus relied, as I understood his evidence, solely on the letters written by Gager and “the territory in which the shooting occurred.”⁶⁰ The simple fact that Gager wrote the words “fuck driftwood” and “fuck east Mall” was enough to tell Backus not only that Gager had animosity toward both gangs, but that there was a gang war ongoing between Doomztown and the other gangs.

251Backus cannot say that he has ever seen another letter written in similar terms, where the existence of such a conflict was supported by other objective evidence of hostilities between two rival gangs. Absent, then, some articulable basis in his experience upon which he could reasonably predicate his opinion that the letters bespeak the existence of a gang war, I am of the view that, to the extent it relies on the content of the letters, his opinion is mere speculation.

(ii) CI Information

252As of the time of the preliminary inquiry, Backus had evidently learned from a CI that there is hostility between the two groups.⁶¹ This consisted, however, of only one report, long after the event. Thus, it would be unfair to allow Backus to opine based on that source since the defence would have no way of challenging it: Sappleton, para. 68.

(iii) Intercepted Private Communications

253Backus indicated in his evidence in this voir dire that he also relies on certain intercepts from Projects XXX and Kryptic to support his opinion. He said there were approximately six such intercepts, of which the majority came from Project XXX in the year 2006 and one or two from 2007. Curiously enough, to my recollection at least, Backus made no mention in his evidence at the preliminary inquiry of relying on any intercepts in support of this opinion. If the intercepts were from 2006 and a couple from 2007, obviously he was privy to them when he testified in 2010. But, as I understood his testimony, he was clear, as earlier stated, that the only things upon which he based his opinion at the time he first postulated a gang war in his initial report to the Crown were the letters and the location in which the shooting occurred. I am at a loss to understand why he failed to mention these intercepts if, indeed, they support his opinion.

254Backus said in his evidence in this hearing that he listened to somewhere between 15,000 to 18,000 intercepts on Kryptic alone. Although he did not mention a figure on this hearing, I suspect that Backus must have listened to something like the same number of calls in relation to XXX, as well. Of that total, the approximately six calls to which he referred related, according to his evidence on this hearing, not to a gang war as such, but, rather, to gang rivalry, and each was, presumably, so unremarkable that it did not occur to him to mention them at the preliminary inquiry. Against that backdrop, I have some difficulty understanding how six more or less innocuous calls could cause him to now hold the opinion that there was a gang war extant at the time of the shooting in 2008. I say “innocuous” because, when asked about these calls on this voir dire, Backus gave no indication of what was said that caused him to conclude that they reflected even rivalry between the gangs, much less a gang war.

(iv) Occurrence Reports

255As he indicated in his evidence on this voir dire, Backus also relies, albeit latterly,⁶² on certain police occurrence reports documenting a number of violent events during the month of September 2008 in the Jamestown and Driftwood areas. Looked at collectively, and taken at face value, the reports suggest a stimulus/response pattern of violence and retributive violence, alternating back and forth between the core territory of Doomztown and that of Driftwood. The information contained in the reports is potentially important because, on one interpretation at least, it provides support for the proposition that the shooting of Mr. Grant was simply one incident in a progression of violence, thus demonstrating the motive alleged by the Crown and, by extension, tending to show that the shooting was not merely a murder, but a first degree murder, by virtue of having been both planned and deliberate.

256I understand that Backus only examined the occurrences when asked to do so by Ms. Misener, in October of 2011. What I do not understand is why he failed to check these materials of his own accord before postulating at the preliminary inquiry that there was a gang war ongoing. Occurrence reports would seem like an obvious resource to check before venturing such an opinion, particularly where that opinion rested at that time on nothing more than two letters from a man Backus did not otherwise know to be associated with Doomztown and the location of the shooting itself.

257While acknowledging that the reports are hearsay, Crown counsel contends that the court should accept the occurrence reports as reliable, without further proof, as a basis upon which Backus can rest his opinion that a gang war was ongoing. The defence does not admit the accuracy of the reports and objects to their admission as hearsay. There are several problems with the Crown’s approach.

258First, in light of their hearsay nature, no proper foundation was laid upon which to permit the trier of fact to rely upon the reports for their truth. They cannot qualify as business records because they were made “in the course of an investigation” and, arguably at least, “in contemplation of a legal proceeding”: CEA, ss. 30(10) (a) (i) and (ii). Nor can they qualify at common law, because one of the conditions precedent for admission has not been established, namely, that the information the records contain was recorded by a person having personal knowledge of the event being recorded: Ares v. Venner 1970 5 (SCC), [1970] S.C.R. 608. Lastly, given the hearsay nature of most of what is reported, I am not satisfied from the mere fact that the documents were authored by police officers that threshold reliability is made out: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. Given the importance of these records to both the issue of motive and the issue of planning and deliberation, it is vital to the fair trial interests of the accused that defence counsel have a meaningful opportunity to challenge this evidence, which admitting the reports for their truth through Backus would not provide.

259Second, if, in the alternative, the Crown were to attempt to overcome the hearsay problem by calling the witnesses who could attest firsthand to the information contained in the occurrence reports, although the reports were disclosed early on, none of the documentation underlying them has been disclosed to this point. As Mr. Fishbayn noted in his submissions, albeit in a somewhat in terrorem fashion, this could delay the trial in order to facilitate appropriate disclosure. That said, if it were the Crown’s intention to call the witnesses having firsthand knowledge of the events described in the reports, it ought to have made full disclosure of the material underlying the reports long before now.

260Third, however the other incidents were to be proven, introducing these other matters would complicate the trial somewhat by introducing what, in effect, would be a series of mini-trials with the potential, in my respectful view, to significantly distract the jury.⁶³

261Fourth, the tendency of some of the incidents reported to show the alleged motive is tenuous at best. For example, the fact that the police investigated a report of gunshots and found a single shell casing in the general area by no means proves (i) that the sounds reported actually were gunshots; (ii) if the sounds were gunshots, that the shell casing found was connected to those shots; (iii) even if shots were fired, that they were fired in anger, as it were; or (iv) even if shots were fired in anger, that anyone from either Doomztown or Driftwood was involved. Similarly, a report documenting that a car stolen in the Jamestown area on the same day a shooting occurred in the Driftwood area was later found abandoned in the Jamestown area by no means proves that the theft and the shooting are connected.

262For the foregoing reasons, evidence concerning the incidents referred to in the occurrence reports is not admissible, either by means of the reports or through the testimony of firsthand witnesses.

263In the alternative, relying on R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, Crown counsel argues that, even if the reports themselves are not admissible, Backus should be permitted to advance his opinion based on them. In Lavallee, the accused did not testify, but a psychiatrist called on her behalf relied, in part, on what she had told him concerning the events surrounding her having killed her abusive husband. The Court held that the fact that there is no proof of some of the facts relied upon by an expert in forming his opinion does not disqualify the opinion; rather, provided that there is some admissible evidence supporting the expert opinion, the jury cannot be told to totally disregard it. That said, the principle emerging from R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, remains firmly in place, namely, that an opinion is only entitled to weight to the extent that its factual underpinnings have been established in the evidence.

264In this case, apart from the occurrence reports, the other supports for Backus’ opinion respecting a gang war are the content of Gager’s letters, the location of the shooting, the aforementioned intercepts and the one CI report. As a basis for his opinion, the letters are so weak that, to the extent that he relies on them, the opinion is, with respect, farfetched. For the reasons earlier mentioned, the telephone intercepts are not persuasive. The location of the shooting is equally unimpressive. Lastly, the CI information is inadmissible. While I appreciate that evidence is not to be examined piece meal, even in the aggregate the evidence is a long way from convincing. In contrast, the incidents documented by the occurrence reports are so numerous, that they would bear nearly the entire weight of the opinion. It would not be a case of the jury relying on an opinion where some aspects of its underpinning have not been proven; rather, virtually the entirety of the support for the opinion would be inadmissible.

265Furthermore, concerning the remarks in Gager’s letters said to demonstrate that there was a gang war extant as of September 22, 2008, such as “Fuck Driftwood” and “fuck east Mall”, there is nothing about those remarks with which the jury requires Backus’ assistance. The language, while crude and profane, is straightforward and not something respecting which the jury needs any explanation. The jury is perfectly capable of understanding, without Backus’ assistance, that the expressions could be interpreted as reflecting animosity. The significance of those remarks, if any, in terms of the death of Mr. Grant will be a matter for the jury to determine at the end of the case.

266In summary, Backus’ opinion concerning the existence of a gang war represents, with respect, the antithesis of the “evidence based approach” recommended by Commissioner Goudge⁶⁴, later endorsed by the Court of Appeal in Abbey. In saying that, I recognize that “[t]he integrity of the trial process requires that the trial judge not overstep [the gatekeeper] function and encroach on the jury’s function”: Abbey, para. 142. However, the opinion is so lacking in foundation that the jury is apt to accord it far more weight than it can reasonably support by virtue of “the understandable assumption that a person labelled as an expert by the trial judge knows more about his ...area of expertise than do the individual members of the jury”: Abbey, para. 90. Given the obvious importance of this issue to the Crown’s ability to prove not just murder, but first degree murder, Backus’ opinion in this behalf is, with respect, “not worthy of being heard”: Abbey, para. 89. It is, therefore, inadmissible.

Language to be Used by Detective Backus in Giving Evidence

267In Abbey, the Court made clear that the trial judge has a role to play in determining not merely the scope, but also “the language of the proposed expert opinion evidence”: para. 64. Insofar as I have precluded the officer from expressing his opinion as such regarding many aspects of that to which I will permit him to attest, it is important to determine how he may express himself when dealing with those areas. On the one hand, the jury must be equipped with “all relevant, reliable information available and needed to arrive at a correct verdict”: Abbey, para. 60. On the other, as the triers of fact, they must be left to make their own determination of whether certain facts the Crown will establish imply the existence of other facts they contend are relevant and not have the expert “swallow whole the fact-finding function of the court”: Abbey, para. 71.

268I recognize that the expression, frequently used by experts in the past, that a fact, “X”, is “consistent with” a state of affairs, “Y”, is problematic.⁶⁵ In the circumstances of this case, it seems to me that a middle ground between Backus expressing his opinion and simply saying that “X” is consistent with “Y”, would be for him to say that a fact, “X”, is characteristic of the state of affairs “Y”. That would be fairer and more meaningful in the sense that the language implies that the presence of “X” actually makes probable the existence of “Y”, as opposed to the “consistent with” expression, which simply means that, from the existence of “X”, one is unable to exclude the possibility “Y”, no matter how remote the possibility may be. Moreover, if there is not at least that degree of probability then it would seem to me that “X” fails the test of logical relevance.

269I remain open, of course, to suggestions respecting the manner in which Backus may express certain aspects of his evidence in order to achieve the appropriate balance between helping the jury, on the one hand, and not allowing the expert to usurp their function, on the other.

CONCLUSION

270In the result, Detective Backus is permitted to give evidence as an expert, as restricted by the foregoing reasons. For greater certainty, however, subject to what I will say below about defence counsel opening up areas foreclosed to the Crown, these restrictions do not apply to the defence.

271I have attempted to deal with what I understand to be the main aspects of Detective Backus’ proposed evidence. To the extent that I may have overlooked any area in which the Crown seeks to have Detective Backus opine that may be contentious, the parties are encouraged to raise it at the earliest opportunity in the absence of the jury.

272The parties are also advised that the foregoing holdings are provisional.

273On the one hand, as Trafford J. alluded to in Sappleton, equally in this case, any subsequent admissions by the defence may alter the balance between probative value and prejudicial effect respecting the evidence I have indicated Backus may give, requiring, in turn, a reassessment of one or more aspects of this ruling.

274On the other hand, as McCombs J. cautioned on the retrial of Abbey, defence counsel should exercise care in their cross-examination of Backus, so as to avoid opening up an area of opinion presently foreclosed to the witness and I repeat here McCombs J.’s admonition in that regard: “If [either counsel] finds himself in doubt about whether a particular question or questions might trigger the admissibility of evidence which I have found to be inadmissible, he would be well-advised to canvass the issue with me in the absence of the jury prior to embarking on that line of questioning”: 2011 ONSC 1260, [2011] O.J. No. 868 (S.C.J.), at para. 46.

275In a similar vein, in the unlikely event that counsel for one of the accused may wish to question Backus about an area foreclosed to the Crown, in light of the potential for prejudice to the co-accused, I expect counsel to first raise the matter with the court in the absence of the jury.

Clark J.

DATE: January 17, 2012