Her Majesty the Queen v. Lavare Williams and Chael Mills, 2013 ONSC 1076

COURT FILE NO.: 12-40000008-0000

DATE: 20130219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

LAVARE WILLIAMS and CHAEL MILLS

Respondents

Patrick Clement and Mary Misener, for the Crown

R. Roots Gadhia, for the Accused, Lavare Williams

Talman Rodocker, for the Accused, Chael Mills

HEARD: January 14, 15, 17, 18, 21, 22, 23,

25, 28, 31, 2013

APPLICATION #7

ADMISSIBILITY OF EXPERT OPINION AND RELATED EVIDENCE

REASONS FOR DECISION

Clark J.:

INTRODUCTION

[1] On May 3, 2010, Mitchell Celise was shot to death in broad daylight on a Toronto street. The accused are charged with his murder.

[2] The Crown alleges that the accused are members of “M.O.B. Klick”, a street gang said to be affiliated with the Bloods, and killed Celise, who was a member of a rival gang, the Eglinton West Crips (“EWC”), to avenge the death of another M.O.B. Klick member a short time earlier.

[3] The Crown applies to be permitted to call Detective Douglas Backus, of the Toronto Police Service (“TPS”), as an expert witness on the subject of street gangs. The defence strenuously resists the application.

[4] Following the procedure discussed in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal ref’d, [2010] S.C.C.A. No. 125, I dealt with this matter in separate phases.

[5] I first considered whether expert evidence was necessary and, if so, whether Backus is qualified to give the evidence the Crown seeks to adduce. On January 23, 2013, in a brief oral pronouncement, I made known that I considered expert evidence to be necessary and, further, that I would permit Detective Backus to testify as an expert on the subject of street gangs. I indicated that I would give reasons for that decision as soon as time permitted; those reasons are set out below.

[6] I next considered what evidence the Crown could adduce as well as the nature and scope of Detective Backus’ opinions, both generally and in specific relation to that evidence. On January 31, 2013, although I had not completed my reasons for decision, in order to assist counsel with their trial preparation I released a provisional ruling[^1] indicating what evidence Detective Backus could refer to and what limitations I would place on the opinions he could express. I indicated that I would give more fulsome reasons for that ruling as soon as time permitted. Those reasons also follow.

BACKGROUND

[7] The street gang “M.O.B. Klick” is said to exist in the area of Vaughan Rd. and Oakwood Ave. in central Toronto. The gang is alleged to be comprised of younger members of another gang known to exist in the same area, the Vaughan Road Bloods. The Vaughan Road Bloods and M.O.B. Klick are both said to be associated with what is referred to as the “Blood Nation”.[^2] The EWC purport to control an area that abuts the area over which M.O.B. Klick exerts control.

[8] In addition to a general antipathy toward EWC that typifies relations between Bloods and Crips, there is evidence that, at the time Celise was killed, members of M.O.B. Klick bore a particular grudge against EWC because they believed that a member of the EWC had recently shot and killed a M.O.B. Klick member, one Robert Flagiello, also known as “Bubba”.

POSITION OF THE APPLICANT

[9] Counsel for the Crown concedes that the average prospective juror will be aware in a general way of the existence of street gangs, but argues that the particular habits, customs, attitudes, argot, and likes and dislikes of members of street gangs will all likely be foreign to the jury. As such, the jury will need assistance to come to a correct conclusion with respect to the significance of the evidence they will hear. That said, Ms. Misener takes the further position that Det. Backus is amply qualified to provide the jury with the additional information they require to properly consider the issues in this trial.

POSITION OF THE RESPONDENT MILLS

[10] In terms of Phase I of this application, in his written submissions on behalf of Mills,[^3] Mr. Rodocker contended that expert evidence was not necessary in this case and, in the alternative, if it could be said to be necessary, while he conceded that Det. Backus has sufficient qualifications to properly be considered an expert concerning street gangs, he went on to argue that Backus has no demonstrated expertise to qualify him to opine on the issue of whether a criminal organization exists. Mr. Rodocker made no oral submissions during the Phase I argument.

[11] When it came time to argue Phase II of the application, although Mr. Rodocker began his oral submissions by indicating that he did not challenge Backus’ expertise and did not quarrel with the Crown’s assertion that expert evidence on this subject could be said to be necessary in this case, oddly enough he immediately went on to argue that Backus was both biased and reckless in formulating his various reports, such that the court should not qualify Backus to give the opinions the Crown would have him impart to the jury. I say “oddly enough” because it seems to me that this question goes directly to the issue of whether he should be qualified as an expert at all and not, with respect, to the secondary question of what he should be permitted to say and how he should be permitted to say it.

[12] Mr. Rodocker’s principal objection at this second stage was to the evidence proffered by the Crown on the basis that, for the most part, it bespeaks bad character on the part of his client and therefore will invite propensity reasoning. He also objected that no proper foundation had been laid upon which some of the Crown’s proffered evidence could be attributed to his client. Accordingly, its probative value is outweighed by its prejudicial effect. As for the opinions that Backus should be entitled to express, I will deal with these complaints in some greater detail as I come to discuss the individual pieces of evidence upon which I have earlier ruled the Crown may rely.

POSITION OF THE RESPONDENT WILLIAMS

[13] As for Phase I, on behalf of Williams, Ms. Gadhia, like Mr. Rodocker, took the position that the jury is capable of understanding the street gang phenomenon, such that there is no need for an expert witness.

[14] In the alternative, Ms. Gadhia took the further position that the court ought not to be satisfied that Backus is a qualified expert because he is biased, because has no real knowledge of the particular gangs in question and because he was reckless in his methodology. Counsel suggested that the fact that Backus had been qualified in the past did not mean that he ought necessarily to be qualified again.

[15] As for Phase II, Ms. Gadhia adopted essentially the same position as Mr. Rodocker that the probative value of the evidence proffered by the Crown is eclipsed by its prejudicial effect. I will deal with some of her specific complaints as I come to discuss the evidence I have ruled admissible.

DISCUSSION

PHASE I

QUALIFICATION OF THE EXPERT

Is Expert Evidence Necessary?

[16] Before a witness may be qualified to give expert evidence, the court must first determine that the expert’s evidence will not merely be helpful to the jury, but, rather, that it is necessary to assist the jury to come to a proper determination of the case: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9.

[17] The jury will be asked to examine videos and still photographs of numerous things found in the area in which M.O.B. Klick is said to exist and to examine many images of persons said to be members of the gang. There is no doubt in my mind that most of what Backus has to say about the significance of a great many of these things would simply not occur to the average juror.

[18] The jury will also be asked to interpret numerous oral utterances from certain videos, as well as what is written in various letters seized from custodial facilities and documents seized in the execution of a search warrant at 481 Vaughan Rd., the address of the accused prior to their arrest. The unique argot used in street gang culture is replete with words and phrases that would not be intelligible to the average person not steeped in that milieu. The following are but a few of a great many examples found in the material the jury will have to consider.

[19] Dealing first with individual words, I am satisfied that the average person would not likely understand the word “Crab” (or “Crabe”) to be a derogatory term commonly used by members of the Bloods to refer to a person affiliated with the Crips. Likewise, the average juror would not understand the word “Dblock” to refer to the Dufferin St. and Eglinton Ave. West area of Toronto, to which the EWC lay claim.

[20] By way of another example, Backus will say that gang members routinely deliberately misspell words containing the letter “c” by inserting the letter “k” immediately after the “c”. Given the appallingly bad orthography and syntax displayed in most of the documents attributed to the accused that the jury will see, I very much doubt that the average juror would understand that the misspellings were intentional acts reflecting Bloods shorthand for the words “Crip Killer”.

[21] Turning to an example of the many lyrics the jury will hear, both in the video evidence and in certain documents, in my opinion the average juror would not likely understand two lyrics spoken by Mills in a YouTube video (“Show you what my hood’s like, everything for a good price” and “M.O.B.’s the shit, heartless in the building run the building like a landlord”) to mean that Mills, who is known by the nickname “Heartless”, is, on Backus’ interpretation, boasting that he controls the sale of controlled substances in an area controlled by M.O.B. Klick.

[22] The jury will also require assistance to comprehend the significance of much of the imagery they will see in the videos and still photographs that will be adduced.

[23] I suspect, for example, that something as innocuous as a young man pouring the contents of a beer bottle onto the ground would not be understood by the average person to be a gesture of respect for a deceased gang member.

[24] Likewise, according to Backus, images of a street sign or an address on an apartment block that appear in a video are meant to be, at one and the same time, both an assertion of the gang’s control over the territory in which those places find themselves and a warning to members of other gangs to stay out of that area. To my mind, that is not something that would be intuitively obvious to the average juror.

[25] A screen capture from one of the videos the jury will see depicts a red bandana covering the lower part of a sign on the outside of a building. The bandana obscures what experience suggests is probably the word “PARKING”, leaving visible only the words “NO VISITOR”. The average person might know that members of the Bloods tend to wear the colour red, but would not likely deduce, as Backus will opine, that this image is a message to members of rival gangs to stay out of the area.

[26] Backus cites literally scores of such examples in the two reports he compiled for this case, which total in the aggregate nearly 130 pages; the handful mentioned above are merely illustrative of the basis upon which I have concluded that the jury could not properly assess the evidence they will hear and see without the assistance of someone with Backus’ specialized knowledge. Indeed, it is, with respect, idle to suggest that expert testimony is not necessary in this case.

[27] Accepting, then, that expert evidence is necessary, I turn to consider whether the proposed witness has the required expertise to warrant receiving his evidence.

Is Detective Backus Suitably Qualified to be Ruled an Expert?

[28] In 2012, in R. v. Gager, 2012 ONSC 388, [2012] O.J. No. 259, I qualified Det. Backus as a street gang expert. Obviously, that does not preordain the same result in this trial, but I mention Gager because, in that case, I discussed at some length the law to be applied to the issue of expert evidence. Therefore, for the sake of brevity, rather than reproduce that discussion here, suffice it to say that, to the extent that they are applicable, I adopt and apply my reasons from Gager on the issue of Backus’ qualification in this case, as well as on the issue of the nature and scope of the opinions Backus may offer.

[29] Det. Backus’ qualifications are set out in his curriculum vitae, which forms part of the Crown’s Application Record, and were amplified by his viva voce evidence on this application. I do not propose to refer to the evidence of his qualifications in detail. Suffice it to say, Backus has many years’ experience investigating street gangs from which he has gained a wealth of knowledge on their structure and workings, their raison d’etre, their customs and habits, the language they typically use, the concept of territoriality they espouse, the means by which they enforce such territorial claims, and the nature of their relations with other street gangs.

[30] One of the principal complaints from counsel for both accused is that Backus is not impartial. As I indicated in Gager, at paragraph 188, and in R. v. Gager, 2012 ONSC 1472, [2012] O.J. No. 1027 (“Gager No. 2”), at paragraph 67, while there is authority for the proposition that a trial judge has discretion to exclude an expert’s evidence where it appears the expert is biased, in my opinion the better view is that bias goes to weight, not admissibility. Even if bias were dispositive for disqualification of an expert, however, I do not agree that Backus exhibited bias.

[31] According to Mr. Rodocker, Backus is “a hired mouthpiece”; according to Ms. Gadhia, he is “a hired gun”. In my opinion, as well as unflattering, both characterizations are unwarranted and unfair. Neither counsel ever gave any convincing support to their bald accusations in this behalf.

[32] Mr. Rodocker suggested that the mere fact that Det. Backus is a police officer suggests that he has an interest in the outcome of the case. I disagree. As I indicated in Gager, the mere fact that Backus is a police officer does not, a priori, bespeak bias. In criminal litigation, police officers are routinely qualified as experts in many diverse fields, including the area in which the Crown seeks to qualify Backus. Nor does the fact that, when challenged on certain points in cross-examination, Backus was firm in his opinions equate with bias. In short, I saw no demonstrable bias on Backus’ part. I found that his written reports, which the Crown filed as part of its Application Record, were balanced and fair. Similarly, I found that, in his viva voce evidence in this hearing, Backus answered questions in a consummately fair-minded and helpful manner. Moreover, he was quick to acknowledge the very few mistakes that counsel were able to find in his extensive written reports.

[33] As for the suggestion that Backus is not qualified because he has no firsthand knowledge of the particular gangs in question, Ms. Gadhia made much of the fact that Backus had no direct investigative experience in which the target of the investigation was a Bloods gang; rather, all his experience was in relation to Crips gangs. But the fact is that Backus has extensive knowledge of the street gang culture in general terms. Therefore, it strikes me that one cannot know a significant amount about one organization without having some awareness, certainly exceeding that of the average juror, of the culture of the other.[^4]

[34] In my opinion, this is no different than a person with no knowledge of auto mechanics asking a master mechanic to diagnose what is wrong with a make of automobile the mechanic has never been trained to repair. Just because the mechanic may not have dealt with this particular make of car before, it it does not follow that he suddenly ceases to be an expert in automobile mechanics. Despite having no training with respect to the particular automobile, he is vastly better situated to diagnose the problem than the untutored person who brought him the car.

[35] I turn next to Mr. Rodocker’s suggestion that Backus was reckless. Counsel for Williams also criticized what she contended was Backus’ carelessness. These submissions are based principally on two facts.

[36] The first fact, which the officer fairly acknowledged in cross-examination, was that he made two mistakes in the reports he prepared in this case. In my view, these mistakes[^5] are inconsequential in the scheme of things. Backus’ reports total 129 single-spaced pages and cover a wealth of material. In my opinion, two small errors in such a compendious body of work hardly merit Backus being characterized as reckless. On the contrary, I find that the officer was careful in the preparation of his written reports, just as he appeared to me to be when giving viva voce evidence on this hearing.

[37] The second fact upon which defence counsel rely in order to characterize Backus as reckless is that, as the basis for some of his opinions, Backus relied on facts asserted in police documents known as Field Information Reports[^6] (“FIRs”), but did not check the accuracy of those facts by personally consulting the officers who authored the FIRs. Three points are apposite.

[38] First, this approach, to my mind, is no different than that taken by a great many experts who rely on information authored by others and supplied to them by the party who retains them, but of which they themselves have no firsthand knowledge. In the vast majority of such cases, the expert does not consult the author of any particular document before relying on it.

[39] Second, even had Backus bothered to check with the officers in person, as defence counsel suggest he ought to have done, the information would still be secondhand out of Backus’ mouth. Counsel suggest that Backus’ ability to be confident in the accuracy of the information he learned from the FIRs would have been enhanced by speaking firsthand with the authors of those reports. But, for the most part, and perhaps entirely, he would not have known the officers and therefore would have had little or no idea how reliable any particular officer’s information in fact was. So the distinction counsel seek to draw is illusory, in my opinion. To the extent that his opinion relies on information from FIRs, the strength of that opinion will be, in the final analysis, a function of the extent to which the Crown proves the underlying facts by calling the authors of those documents: R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24.

[40] Third, even if I were persuaded that Backus had been reckless, which I am not, the nature of the recklessness argued here is not such as to impinge on the reliability of the core of his evidence, nor does it diminish his experience and knowledge in this area. In R. v. Sappleton, 2010 ONSC 5704, [2010] O.J. No. 5366, at paragraph 50, in deciding whether Backus would be qualified to give expert evidence, Trafford J. found that Backus had been careless in failing to adequately check certain facts upon which he relied for his opinions, but held, nonetheless, that his evidence was admissible because his lack of care went to the probative value of his evidence, not its admissibility.

[41] I am not, however, persuaded that Backus was reckless in the preparation of his reports and I would not exclude his evidence on that basis.

[42] In the result on this first phase, I am satisfied that expert evidence is necessary and, further, that Det. Backus is a suitably qualified expert.

PHASE II

PERMISSIBLE NATURE AND SCOPE OF THE EXPERT’S OPINIONS

[43] I turn now to discuss the admissibility of some of the evidence upon which the Crown seeks to have Backus testify. Following that, I will discuss certain limitations I will impose on the manner in which Backus may impart his knowledge and opinions to the jury.

[44] Before turning to the specifics of Backus’ evidence, I wish to discuss, very briefly, the principal complaint the defence counsel raise to the reception of the proffered evidence, namely, that much of it bespeaks bad character on the part of the accused. Thus, it is inadmissible on that ground alone because its probative value is outweighed by its prejudicial effect.

[45] To begin, in R. v. B. (L.) (1998), 1997 3187 (ON CA), 35 O.R. (3d) 35 (C.A.), at pp. 54-55 and pp. 58-59, Charron J.A., as she then was, said the following concerning the nature of prejudice in terms of deciding the admissibility of evidence:

Identifying the issue in the trial to which the proposed evidence relates is particularly important given the prejudice which may arise from the admission of evidence of discreditable conduct. It is important to keep in mind what is meant by prejudice in this context. The danger which must be guarded against is that the trier of fact, in relying on the evidence of discreditable conduct, may conclude that the accused committed the offence with which he is charged based, not on the strength of the evidence which has a connection to the issues in the case, but rather, on the strength of the evidence that he is "a bad person" who would have a tendency to commit this offence.

Evidence of discreditable conduct is inherently prejudicial. Indeed this feature forms the basis of the underlying rationale for the similar fact evidence rule. Again, in assessing the prejudice of the proposed evidence, it is important to keep in mind what is meant by prejudice in this context. It is the effect this kind of evidence may have in compelling a trier of fact to find the accused guilty not on the strength of the evidence marshalled against him in relation to the offence with which he is charged, but on the strength of the evidence of his bad character. Therefore, it follows that, in general, the higher the probative value of the evidence, the lesser the prejudicial effect. Conversely, any weaknesses which have been identified in the course of assessing the probative value of the evidence will generally increase the prejudicial effect.

[46] As I indicated in R. v. Gager, 2012 ONSC 2697, [2012] O.J. No. 2085 (“Gager No. 3”), at paragraph 38 ff.:

38 It is axiomatic that evidence of bad character is inadmissible where it shows nothing more than that the accused is the type of person likely to have committed the offence: R. v. S.G.G., 1997 311 (SCC), [1997] 2 S.C.R. 716, at para. 63. Having made that observation, however, Cory J. then set out the following three exceptions to the general prohibition:

(1) where the evidence is relevant to an issue in the case: see, for example, Morris, 1983 28 (SCC), [1983] 2 S.C.R. 190, supra, at p. 202; B. (F.F.), supra, at p. 731. See also R. v. Lepage, 1995 123 (SCC), [1995] 1 S.C.R. 654, at pp. 672-74; R. v. Hinchey, 1996 157 (SCC), [1996] 3 S.C.R. 1128, at para. 135, per Cory J.

39 At paragraph 64 ff. of S.G.G., Cory J. then went on to state:

Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown's theory of the case, such as motive, opportunity or means: see R. v. Davison (1974), 1974 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.); Hinchey, supra, at para. 135. Evidence of motive, for example, 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: Lewis v. The Queen, 1979 19 (SCC), [1979] 2 S.C.R. 821.

Evidence which is directly relevant to the Crown's theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect: B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, supra, at p. 731. [Emphasis added.]

[47] In this case, much of the evidence the Crown seeks to adduce in connection with Backus’ opinions bespeaks bad character on the part of the accused, but it is not being introduced to show bad character per se, but, rather, to show:

(i) that M.O.B. Klick is a street gang (and, by extension, a criminal organization);

(ii) that the accused are members of M.O.B. Klick; and

(iii) that, as members of the gang, the accused had a powerful motive to commit the crime with which they presently stand charged.

In short, the vast bulk of the proffered evidence is highly relevant to motive.

[48] Moreover, the evidence does not go solely to motive. Respecting Mills, in order to prove he committed first degree murder, contrary to s. 231(6.1) of the Criminal Code, the Crown must prove, as an essential element of the offence, that the M.O.B. Klick is a criminal organization, as defined by s. 467.1(1) of the Code, and that Mills committed the murder for the benefit of, or in association with, that organization. Obviously, evidence showing the nature of the gang and Mills’ membership in it is central to the Crown’s ability to prove murder by way of this subsection.

Criminal Antecedents of Alleged Gang Members Not Before the Court

[49] The Crown seeks to prove the criminal antecedents of persons not before the court said to be members of M.O.B. Klick as a means by which to establish that the entity known as M.O.B. Klick is in fact a street gang. The convictions of other alleged members would tend to establish, the Crown contends, that M.O.B. Klick is a gang because the crimes of which the third parties have been convicted are, according to the Crown’s expert, of a type typically committed by members of street gangs. For the following reasons, I refused to permit the Crown to do that.

[50] To begin, the manner in which the Crown sought to prove the prior bad acts of third party alleged gang members is problematic. Although the Crown acknowledges that, while the pleas constitute admissions by the persons who made them, they are not binding, obviously, on the accused. The Crown contends that that difficulty is overcome by s. 23 of the Canada Evidence Act, which provides that transcripts of judicial proceedings may be admitted as proof of their contents. While that is correct, the problem is that the transcript only provides evidence of what took place in court and is no evidence of what actually occurred in the course of the incident giving rise to the charge being dealt with in the proceeding transcribed.

[51] Even assuming one could prove the prior convictions, the problem with the Crown’s logic is that it ignores the fact that just because a crime is of the sort often committed by gang members it does not follow that any particular crime was committed in association with or for the benefit of the gang. For this calculus to have any probative value in this case, then, it would be necessary to explore the circumstances of each of the convictions to determine whether it would be reasonable to conclude that the third party committed the offence in question for the benefit of the gang. That would involve a series of mini-trials that would divert this trial and add considerable confusion to the jury’s task. It is trite to observe that one basis upon which evidence will tend to cause the prejudicial effect of evidence to outweigh its probative value is where it delays the proceedings and/or distracts the jury: R. v. Cyr, 2012 ONCA 919, [2012] O.J. No. 6148, at para. 104.

[52] In summary, then, I find that the potential prejudice of evidence of the criminal antecedents of third parties outweighs its probative value.

Criminal Antecedents of the Accused

[53] I move next to the criminal antecedents of the accused.

(i) Lavare Williams

[54] Dealing first with Mr. Williams, the Crown seeks to adduce evidence that he has been convicted of possession of marijuana. He was originally charged, in 2009, with possession for the purpose of trafficking, but pleaded guilty to simple possession.

[55] The Crown contends that Williams’ conviction reflects that he possessed of an amount of marijuana at a place said to be within the gang’s “turf”. Further, the Crown asserts that the drugs in his possession were individually wrapped in small packages consistent with the way in which someone intending to traffic the drug would do and, in addition, that he was at the same time found in possession of one of the typical tools of a trafficker, namely, a digital scale. Moreover, according to Backus, only gang members are permitted to traffic narcotics on gang turf, such that an intention to traffic drugs in that territory is strongly indicative of the person being a member of the gang.

[56] Admittedly, those circumstances suggest an intention to traffic. Trafficking is an offence, so Backus would say, typically committed by members of street gangs.

[57] The first problem with this evidence, however, is that it is dated. The probative value of one incident more than a year prior to the offence charged is slim at best.

[58] The second problem is the circumstances surrounding the arrest of Mr. Williams on this charge. Williams was a passenger in a car and there is no evidence as to where the occupants of the car were bound when stopped and investigated by the police. Although I appreciate that my so-called “gatekeeper function” involves only a limited ability to weigh the evidence, it is questionable, to my mind at least, whether the offence even suggests gang involvement.

[59] Further, it is not admitted that the accused had the drugs for the purpose of trafficking, such that it will involve another mini-trial that would, in turn, distract the jury.

[60] In the final analysis, I am satisfied that the probative value of the prior conviction is outweighed by its prejudice and the Crown is forbidden from adducing evidence of it in its case in chief.

(ii) Chael Mills

[61] Turning to Mills, the Crown seeks to adduce evidence of several of his prior convictions.

[62] The accused has several drug related convictions from 2006. The Crown concedes that these convictions do not relate in any way to M.O.B. Klick; rather he acquired them in Oshawa, Ontario. Therefore, they do not show that he is likely a member of M.O.B. Klick by virtue of having committed crimes typically committed by members of street gangs and, thus, they are not circumstantial evidence that he was a member of M.O.B. Klick. The Crown seeks to adduce them, nonetheless, to show that the accused is familiar with drug dealing, such that evidence of the convictions is relevant to show that he was likely a member of M.O.B. Klick.

[63] The accused is presently 23 years of age. In my view, given his age at the time he committed the drug offences, the convictions are too remote in time to be of any significant probative value and I would exclude them on that basis alone. Even if they were closer in time, I would still exclude them because, to my mind, the inference the Crown would seek to have the jury draw based on those convictions is so weak that it amounts to nothing more than evidence of bad character per se.

[64] The Crown also seeks to adduce to adduce evidence of a prior conviction for assault with a weapon. That conviction involved an incident on April 11, 2008, more than two years prior to the offence charged on this indictment, wherein Mills and another alleged gang member, one Floyd Francois, were passengers in a car driven by Mr. Mills’ godfather, a Mr. Dietrich. While driving within gang turf, they suddenly ordered Dietrich to pull over, whereupon Mills and Francois got out of the car and began to assault a young man standing at a bus shelter. Mills is said to have stabbed the victim with a knife.

[65] There are several problems with this incident being put before the jury.

[66] First, there are problems of proof. It is unclear whether either the victim or Mr. Dietrich, the driver of the car, is available and, more importantly, willing to testify.

[67] As for Francois, I am advised he has been deported and, even if he were available, I have grave doubts whether he would be willing to testify.

[68] The Crown contends Francois’ unavailability is not a problem because it can prove the conviction by adducing a transcript of Mills’ guilty plea. However, I am advised that the transcript does not mention Mr. Francois. The Crown hopes to overcome that difficulty by introducing into evidence, along with the Mills transcript, a certified copy of an indictment against Mr. Francois in respect of the offence, wherein he pleaded guilty to assault with a weapon on the same victim. Nowhere on the indictment,[^7] however, is Mr. Mills mentioned. To link the two matters, then, the jury would have to infer that the victim was only assaulted once on the day in question. The inference is not a quantum leap, perhaps, and if this were the only problem, I might admit the evidence. Unfortunately for the Crown, this is not the only problem with the proposed evidence.

[69] Second, the stabbing incident is somewhat dated, thereby lessening its probative value.

[70] Third, although the incident shows Mills acting in concert with Francois, apart from the location of the assault being within the geographical area over which M.O.B. Klick endeavours to exert control, there is nothing about the earlier incident that shows in any convincing way that the assault was committed for the benefit of or in association with a criminal organization.

[71] Fourth, although in this earlier incident Mills used a knife, whereas he is alleged to have used a gun to kill Mr. Celise, the attacks were similar in the sense that, in each case, the victim had done nothing obvious, at least not at the time of the attack, to incur the wrath of Mr. Mills, but, rather, just happened to be present when Mills and a confederate set upon him. To observe that the stabbing incident is apt to characterize Mr. Mills in the eyes of the jury as a man predisposed to violence is to state the obvious. For the stabbing incident to show Mills’ connection to M.O.B. Klick and, further, that he likely committed the offence for the benefit of, or in association with, a criminal organization would require something more than has been presented to me. In the absence of any such further evidence, I am of the opinion that the probative value of the earlier stabbing incident is significantly outweighed by its obvious prejudicial effect.

[72] Fifth, if I were to allow this evidence, it would amount to a mini-trial of sorts that would distract the jury to a degree that would exceed the probative value of the evidence in terms of the issue it is meant to prove in this case. I say that bearing in mind that the probative value is diminished by other admissible evidence tending to show that Mills is a member of M.O.B. Klick and that he may have shot Celise in association with, or for the benefit of, M.O.B. Klick.

[73] On balance, then, I have concluded that the probative value of Mr. Mills’ prior convictions is outweighed by their potential prejudice. In the result, none of Mills’ prior convictions are admissible in the Crown’s case in chief.

Letters Allegedly Authored by Floyd Francois

[74] The Crown sought to adduce several letters allegedly authored by Floyd Francois (“the Francois letters”). As noted above, he is alleged to be a M.O.B. Klick member. The letters are meant to show the existence of M.O.B. Klick as a criminal organization.[^8]

[75] Counsel for Mr. Mills objects to the admission of the letters on the following grounds:

(i) they are not authenticated;

(ii) they are hearsay; and

(iii) their prejudicial effect outweighs any probative value.

[76] The objection that the letters are not authenticated is based on the fact that there is no direct evidence of authorship and the letters were signed in what the Crown contends were false names for the purpose of avoiding detection by the authorities.[^9] As for the intended recipients, the Crown contends that all of the letters it proffers were, for the most part, addressed to a person other than the intended recipient.

[77] In response to this objection, the Crown says that it can show circumstantially that Francois was the author of the letters by reliance on the following evidence:

(i) as for the letters seized on July 5, 2011, they were in the outgoing mail at the institution in which Francois was then incarcerated;

(ii) the putative author of two of the letters[^10] is Floyd Francois;

(iii) one of the letters refers to the author being on an immigration hold and facing deportation;

(iv) Francois was deported on May 27, 2012;

(v) the putative author of another letter[^11] is Dwayne Nelson;

(vi) a person of that name was housed in the same correctional institution as Francois at the time the letter was sent;

(vii) the putative author of still another letter[^12] is Christian Rose;

(viii) a person of that name was Francois’ cell mate at the time the letter was sent;

(ix) the addressee of one of the letters attributed to Francois was Richard Steele, a person known to be associated with the Vaughan Road Bloods;

(x) the addressee of two of the letters is Mr. Mills; and

(xi) there is extrinsic evidence showing that Francois associated with Mr. Mills and was connected to M.O.B. Klick and the Vaughan Road Bloods.

[78] In R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653, at pp. 664-65, Sopinka J. held, relying on McCormick on Evidence, that authentication is not a question of fact upon which admissibility depends, but, rather, provided there is a prima facie showing, the ultimate question of authenticity is for the jury. On the strength of the aforementioned evidence, I am satisfied that there is a sufficient body of circumstantial evidence upon which the jury could reasonably attribute the letters to Francois.

[79] To the objection that the letters are hearsay, Crown counsel contends that the letters are not hearsay because they are not being adduced for their truth. In the alternative, Crown counsel asserts that, if they are hearsay, they are nonetheless admissible as:

(i) exceptions to the rule:

(a) for oral acts; or

(b) for statements reflecting the declarant’s state of mind; or

(ii) they are admissible by the application of the principled approach to hearsay.

[80] Dealing first with the principled approach to the rule against hearsay, Crown counsel asserts that the necessity criterion is made out with respect to the Francois because he has been deported. However, in R. v. O’Connor (2002), 2002 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.), the court held that, to establish necessity, the Crown must do more than merely show that a witness is out of the jurisdiction and, hence, not compellable; rather, it must demonstrate that it made suitable efforts to obtain or preserve the witness’ evidence, but was unable to do so.

[81] Likewise, in R. v. Heath, 2010 ONSC 3161, [2010] O.J. No. 2276, at paragraph 13, Pomerance J. refused to admit the statement of a witness who was out of the jurisdiction because the Crown had not taken reasonable steps to preserve his evidence prior to his deportation.

[82] In this application, no evidence was called to explain why the Crown did not take any of the steps suggested in O’Connor to preserve the evidence. In the final analysis, I am not persuaded that necessity has been established. Therefore the documents are not admissible via this route.

[83] As for the statements amounting to oral acts, I am not persuaded that that exception applies here. As Fuerst J. pointed out in R. v. Lindsay, 2005 479 (ON SC), [2005] O.J. No. 61 (S.C.J.), at paragraph 119, quoting Wigmore on Evidence, Chadbourn Revision, vol. 6, at p. 267, a verbal act is an utterance that “accompanies conduct to which it is desired to attach some legal effect. The conduct or act has intrinsically no definite significance, or only an ambiguous one, and its whole legal purport or tenor is to be more precisely ascertained by considering the words accompanying it.” Here there is no act that the words accompany. Rather, it is the words themselves that are important, at least to the extent that they were written; that is to say, there is no other act that the words explain or clarify.

[84] Turning to the exception for statements reflecting the declarant’s state of mind, in Lindsay, one of the questions before the court was whether the Hells Angels was a criminal organization. Fuerst J. held that the statements of persons not before the court, although not admissible to show the state of mind of anyone other than the declarant, were nonetheless admissible because they reflected the state of mind of the declarant, which was relevant to the issue of whether the declarant was a member of a criminal organization.

[85] Similarly, in R. v. Sandham, 2009 59151 (ON SC), [2009] O.J. No. 4527 (S.C.J.), Heeney J. held that the letters authored by certain persons not before the court were relevant to show the states of mind of those persons. Their respective states of mind were, in turn, some circumstantial evidence of a state of affairs that existed among certain motorcycle gangs. The nature of those relations was central to proving the motive underlying the murders being tried.

[86] In R. v. Violette, 2008 BCSC 422, [2008] B.C.J. No. 2781, another case involving allegations of persons committing criminal offences for the benefit of a criminal organization, Romilly J., relying on Lindsay, stated, at paragraph 48, “When it comes to ascertaining the collective nature of an organization, it is only reasonable that the beliefs and states of mind of individuals who comprise that organization will have relevance in that regard.” Romilly J. then went on to hold, at paragraph 50, that “statements that pertain to the knowledge and beliefs of members as to the criminality of their colleagues and of the EEHA itself ... are relevant to the issue of whether the EEHA is a criminal organization.”

[87] In this case, I am of the view that the statements of Francois fall into the same category as the statements in the cases cited above. They are evidence of the state of mind of the writer; his state of mind is, in turn, some circumstantial evidence of the existence of the criminal organization the Crown alleges. Accordingly, with the exception of the letter earlier alleged to be addressed to Francois, but now alleged to have been addressed to Richard Steele, the other Francois letters are admissible.[^13]

[88] At paragraphs 38 through 40 of its factum on this issue, the Crown concedes that certain portions of some of the letters should be redacted. These include:

• references in Letters 6 and 7 to women, other than their names; and

• references to Lavare Williams in the Francois letters.

The Crown acknowledges that some of the aforementioned passages refer to women in terms that are both derogatory and sexist and, as such, have a potential for prejudice. The names of the several of the women do, however, have some probative value in that they tend to establish circumstantially that Francois is the author. I agree that, except for the names of the women, which may remain, the portions of the various letters that the Crown has identified in its factum must be redacted.

[89] Turning to the prejudicial effect of which Mr. Rodocker complains, it must be remembered that the Crown must prove that the accused belonged to a criminal organization and that the organization is an enduring entity with some structure to it: R. v. Venneri, 2012 SCC 33, at para. 35. The letters tend to show the state of mind of Francois in relation to the gang and, as the authorities discussed above indicate, his state of mind is some circumstantial evidence of the actual existence of the gang. Therefore, I consider the evidence of these letters to be highly probative.

[90] The proffered letters say little, if anything, about Mr. Mills, so there is nothing that is directly discreditable about them. It is fair to say, of course, that Francois repeatedly addresses Mr. Mills in the letters in a way that suggests that Mr. Mills is a gang member, but I will instruct the jury that they may not use those forms of address as any evidence that Mr. Mills is in fact a gang member because that would be a hearsay use of the letters. However, provided that the jury is given a proper instruction in that behalf, I do not see the letters as being prejudicial.

[91] As for references in the letters to Mr. Williams, the Crown agrees that it must redact any and all such references. That being said, the introduction of the letters for the limited purpose of showing Francois’ state of mind, as some circumstantial evidence of the existence of M.O.B. Klick, creates no prejudice to Mr. Williams.

[92] In the final analysis, apart from the redactions mentioned above, I hold that, other than the Steele letter, the letters attributed to Francois are admissible.

Letters Allegedly Authored by Mills

[93] As with the Francois letters, there are problems of proof for the Crown in establishing that Mills was the actual author of several letters the Crown attributes to him (“the Mills letters”).

[94] In the case of the Mills letters, while none of them purport to be signed by Mills, the Crown also has a group of documents seized during the execution of a search warrant at 481 Vaughan Rd. in Toronto, where Mills is said to have resided before his arrest. While those documents are not admitted to be authored by Mills, there is circumstantial evidence from which that inference might be drawn. The Crown has used that set of documents as a control sample for purposes of having a handwriting analyst compare them to the letters attributed to Mills. I am satisfied that there is sufficient evidence from which the jury could reasonably conclude that Mr. Mills authored the letters.

[95] If the jury were to find as a fact that the letters were written by Mills, then, in the same way as the Francois letters, they would be potentially probative, as against both accused, of the existence of M.O.B. Klick as a gang. By extension, as against Mills, the letters would also be some evidence of his membership in M.O.B. Klick. Turning to Williams, the jury will have to be cautioned, of course, that, as distinct from their being some circumstantial evidence of the existence of M.O.B. Klick, the Mills letters are no evidence that Williams is a member of M.O.B. Klick.

[96] Counsel for Mills does not dispute the probative value of the letters, but contends that it is outweighed by their prejudicial effect on the jury. I disagree.

[97] The Crown has redacted significant portions of the letters to remove certain passages that are unnecessary to its case and that tend to portray Mills in a negative light. For example, the letters contain numerous unflattering references to women. Much of what is left after redaction also portrays Mills in a negative light, but the negative information relates directly to the issue of whether he is a member of M.O.B. Klick, whether M.O.B. Klick is a street gang and, by extension, whether it is a criminal organization. I am of the opinion that the probative value is potentially high and I am satisfied that any prejudice the letters engender can be overcome by proper instruction.

[98] Counsel for Williams objected to certain references to her client in the Mills letters, but the references to Williams are centrally important to make clear that that Mills is speaking at certain points about the killing of Mr. Celise. To remove the references to Williams would be to rob the letters of a vitally important aspect of their overall probative value to the Crown in its case against Mr. Mills. Obviously, at the risk of repetition, beyond the limited use they may have to enable the Crown to establish that M.O.B. Klick exists, the letters are otherwise no evidence against Williams. The jury must be told that in very clear terms, both at the time the letters are introduced and again in my final instructions.

[99] I turn now to the specific proposals for redaction.

[100] Respecting the letter putatively written by Dennis DaSilva to Francois, Mr. Rodocker seeks to add a passage[^14] to the portion that the Crown agrees it must redact. Mr. Rodocker objects to the passage going before the jury because it refers to Mills being in a fight in the jail. I agree with the Crown, however, that it is important to include this passage because the dispute between Mills and the other person appears to have been predicated on that person’s gang affiliation such that the passage amounts to some circumstantial evidence tending to show Mills’ interest in gangs and gang rivalry. Jury members are not so naive as not to recognize that jail is a place where there are often disputes and that sometimes those disputes result in physical combat. To the extent that Det. Backus interprets the portion of the letter to be Mills saying he beat up the other man, even if Mills was the aggressor, that level of violence is a long way from shooting a man to death. I am confident that, with the benefit of an instruction in this behalf, the jury will not misuse this evidence.[^15]

[101] Respecting the letter putatively written by J. Syring to Francois, I agree with the Crown’s proposed redactions. I disagree with Mr. Rodocker that the content he complains of (which, on one interpretation, shows Mills had more than one girlfriend at the same time) must be redacted. It is not even clear to me that Mills acknowledges having more than one girlfriend at the same time. Even if that is a fair interpretation, that is not the sort of character evidence that is apt to persuade, or even help to persuade, a jury that Mills is therefore predisposed to violence, such that he is more likely guilty of murder as a function of what Mr. Rodocker characterized as “his philandering”. On the other hand, the reference to his girlfriend is important to show that he declined a visit with her in order to have a visit from persons the Crown contends are his fellow gang members, to whom he refers in the letter as “da Mobdem”.

[102] Respecting the letter putatively sent by Tommy Stephens to Francois,[^16] Mr. Rodocker had no complaint with the Crown’s proposed redaction. Ms. Gadhia was concerned that Mills mentions her client, but, as I have noted above, the reference can be the subject of an instruction that it is no evidence against Williams.

[103] Respecting the birthday card putatively sent by Daniel Omari to Francois, the card is probative in at least two ways. First, it shows a proclivity for using Blood gang symbols. Second, it refers to Francois as “THE GENZ”, which is said to be short for “the General”. In the Blood argot that term, according to Det. Backus, refers to the leader of a gang.

[104] Mr. Rodocker objects to the admissibility of the card because there is no handwriting analysis by means of which to attribute the letter to Mills; two points are apposite.

[105] First, the common law provides that lay triers of fact are entitled to make their own comparisons of handwriting unassisted by expert testimony. It is incumbent, of course, upon the trial judge to give the jury instructions, inter alia, about the quality of the particular questioned example, and the need for special care in the absence of expert evidence: R. v. Abdi (1997), 1997 4448 (ON CA), 34 O.R. (3d) 499 (C.A.).

[106] The court in Abdi made clear that, for purposes of such an exercise by the jury, there must be an authenticated or genuine example of handwriting against which to which to compare the questioned writing. In this case, while there is no direct evidence identifying what I have referred to as the control samples, there is, as noted above, a body of circumstantial evidence from which the jury might reasonably conclude that Mills was the author of the documents seized at 481 Vaughan Rd. There are official documents that associate Mills to that address and handwritings seized during the execution of the search warrant contain lyrics to songs that Mills sings in the various rap videos that the Crown has tendered and I have indicated the jury may see.

[107] In this case, I note that it is not just the comparison of the handwriting on the card to other samples of handwriting upon which the jury can rely. In addition, assuming the jury decides that certain of the Mills letters were in fact written by him, the text of the birthday card (as distinct from the handwriting) constitutes some circumstantial evidence of the identity of the author. I refer to the fact that the author refers to Francois as “THE GENZ”, which can be compared to the use in the DaSilva letter of the expressions “da Generally’s [sic]...” and “my General da [sic] Boss...”, which Backus will say are also terms used in gang terminology to refer to the boss of a gang. Similarly, in the Stephens letter, toward the bottom of the third page, the author wrote, “Freedom Is a must.” The author of the card wrote, “You ALREDY [sic] KNOW Freedom IS A MUST!” The use of the same expression is some circumstantial evidence from which one might deduce that the author of the card was referring to the remark he made in an earlier letter.[^17]

[108] Respecting the second letter purportedly written by Stephens to Francois,[^18] Mr. Rodocker has no complaint concerning its content, but rests his objection to its admissibility on the fact that there is no handwriting analysis to identify it as having been written by the same author as the control documents. My earlier comments in this behalf apply equally to this letter.

[109] In summary on this issue, I am satisfied that, redacted as per the Crown’s proposals, the probative value of the Mills letters outweighs any prejudicial effect they may have; hence, they are admissible.

Graffiti

[110] The Crown also seeks to adduce evidence of certain graffiti found in two locations.

[111] The first instance upon which the Crown wishes to rely is the words “M.O.B. Klick” that are scratched into a wall in the washroom of an establishment known as the Town Talk Restaurant and Bar, situate on Vaughan Road in Toronto, within the area said to be controlled by M.O.B. Klick. Inasmuch as someone took the trouble to scrawl the graffiti on the wall, it is a piece of physical evidence that has some limited circumstantial value in terms of demonstrating that M.O.B. Klick in fact exists.

[112] The second instance is the same name scrawled on the wall of a washroom at the courthouse at 1000 Finch Ave. West in Toronto. That courthouse is where criminal charges laid by officers of 13 Division of the TPS are initially returnable. The territory of M.O.B. Klick is said to be within 13 Division. Therefore, the graffiti has the same potential probative value as that found in the restaurant.

[113] Defence counsel complain that it will prejudice their respective clients because their preliminary inquiry was held at 1000 Finch Ave. West. I disagree. Provided that the jury is instructed that, in the absence of any evidence linking either of the accused to the creation of the graffiti, the most it can tend to prove is the existence of the gang and not membership of either accused in the gang, I can see no prejudice.

[114] Mr. Rodocker argues that the graffiti is not admissible because there is no evidence as to when the graffiti was created. He argues that, for the graffiti to be admissible, it must first be shown that the time it was created “relates to the time of the offence.”

[115] In a similar vein, Ms. Gadhia argues that the graffiti is not admissible because the author is unknown.

[116] These arguments are ill conceived. The object of introducing the graffiti is as some circumstantial evidence of the existence of M.O.B. Klick. In this case, the mere presence of the graffiti is a circumstance from which, taken together with other evidence, the existence of the gang can be inferred. Proof of authorship is not a necessary condition for the graffiti to have probative value in that regard, nor, at the risk of stating the obvious, is proof that the graffiti was created at the same time as the offences here charged took place. With respect, these arguments are tantamount to saying that hieroglyphics amount to no evidence of the existence of ancient Egyptian civilization because there is no evidence to establish precisely when any particular example was created or by whom.

[117] Mr. Rodocker also complained that the photograph showing the graffiti in the courthouse washroom is of a very poor quality. Provided, however, that someone can attest to having seen what the photograph purports to depict, any inadequacy in the photograph is a matter going to weight and not admissibility.

[118] Both of the above mentioned instances of graffiti are admissible.

[119] The Crown also sought to adduce evidence of a bed sheet seized from a custodial facility in which Floyd Francois was an inmate and documents seized from a cell occupied by Francois. Both the bed sheet and the documents were said to have graffiti on them suggesting the existence of M.O.B. Klick. The documents had some writing to the same effect.

[120] The bed sheet was originally said to have been seized from a cell occupied by Francois, but later the Crown advised that the sheet was seized from a common range to which many prisoners had access. As with the graffiti in the restaurant and courthouse, it was not absolutely necessary to prove that Francois possessed the bed sheet or the documents for them to have some probative value in establishing the existence of the gang. However, (i) given the change in the Crown’s position in the latter stages of this application and the lack of opportunity for the defence to prepare a cogent response, and (ii) the limited probative value of the items, especially when measured against considerable other evidence pointing toward the existence of the gang, I exercised my discretion to exclude them.

Video Evidence Proffered by the Crown

[121] In the course of their investigation, the police downloaded from the Internet, specifically YouTube, more than 70 videos depicting M.O.B. Klick. Of those, the Crown initially sought to play ten videos for the jury. After considering the matter, I indicated that I was prepared to allow some, but not all, of the proposed videos to go before the jury. That decision was predicated not on lack of relevance or the potential prejudice of any particular video, but, rather, solely on my concern for the cumulative effect of the number of videos the Crown proposed to adduce. I gave the Crown an opportunity to reassess which videos would be the most probative of the existence and nature of M.O.B. Klick, as well as the membership of the accused in it. In response, the Crown reduced the number of videos it sought to adduce to six. I then heard further argument as to whether any of the reduced number should go to the jury and, if so, which ones.

[122] Mr. Rodocker conceded that the videos have some probative value, but argued that the prejudicial impact of the videos is “overwhelming”. For her part, while agreeing with Mr. Rodocker that the videos are highly prejudicial, Ms. Gadhia argued that the videos have no probative value. I disagree.

[123] As for probative value, in my view, all the videos are, in varying measure, probative of the existence and nature of M.O.B. Klick and the accused’s membership in it.

[124] As for potential prejudice, the imagery includes weapons and hand gestures reflecting the use of weapons. The lyrics frequently concern drug dealing and violence. To say, then, that in the mind of any right thinking person the videos are unbecoming the accused is to state the obvious. To say that they are prejudicial is, however, another matter. As noted above, the essence of the Crown’s case is that this murder was driven by gang rivalry and, more specifically, by a desire to avenge the death of a M.O.B. Klick member at the hands of an EWC member. Moreover, to prove first degree murder against Mills, the Crown must prove that he killed Celise in association with, or for the benefit of, a criminal organization.

[125] In these videos, the accused are heard repeatedly exalting the sale of cocaine. On the one hand, quite obviously, the jury is apt to find that the accused, inasmuch as they repeatedly sing the praises of this pernicious activity, are persons of low moral character. That will certainly not assist them in their defence. On the other hand, one of the core businesses of street gangs is the sale of illegal narcotics. Therefore, the audio and visual proof that the accused purport to sell drugs for M.O.B. Klick is highly probative of the Crown’s contention that M.O.B. Klick is a criminal organization and that the accused are members of it.

[126] As for violence, the accused repeatedly refer to carrying and using firearms. Again, the videos are damaging to the accused. However, Backus will say that the possession of firearms is a central part of gang life, enabling the gang to instill fear in persons within what they consider to be their turf and, most importantly, perhaps, potential competitors in the form of rival gangs.

[127] There are very few Canadian authorities on point.

[128] In R. v. Alvarez, 2009 48828 (ON SC), [2009] O.J. No. 3825 (S.C.J.), Molloy J. dismissed a defence application to set aside an authorization to intercept private communications where the authorizing judge relied, in part, on a video available on YouTube entitled “Rapsheet” that, according to the police, portrayed members of a Toronto gang known as the Doomztown Crips brandishing handguns and boasting of their criminal activities. In R. v. Willis, 2007 ONCJ 605, [2007] O.J. No. 5691, Pringle J. considered the same video, Rapsheet, as did Watson J. in R. v. Argueta, 2011 ONCJ 576, [2011] O.J. No. 5195. These cases are of no utility on the issue before me, however, because in none of them was the court obliged to consider the impact of the video on a jury.

[129] In R. v. D.S., 2010 ONSC 7254, [2010] O.J. No. 5747, A. O’Marra J. held that a video could be introduced at the instance of the accused to show, in aid of a defence of self-defence, that the deceased was a member of a street gang. O’Marra J. refused the application to play the video on the basis that “[t]he music with violent gang/rap lyrics playing throughout video has little probative value and great prejudicial effect.” He held, however, that certain individual photographs were potentially relevant and probative to confirm the involvement of others with EWC.

[130] Given the paucity of Canadian authorities dealing with the introduction of video evidence in cases involving street gangs, I consulted various authorities from other jurisdictions, mainly the United States. Before discussing some of those cases, I wish to make three initial points.

[131] First, I appreciate that one must be careful in applying American jurisprudence to Canadian situations: R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588, at p. 639; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697, at p. 740. Although Rahey and Keegstra dealt with the applicability of American constitutional jurisprudence in the Charter context, caution is also required when, as here, considering the admissibility of evidence. That is so because, whereas in this country admissibility is governed by the common law, in the United States it is, for the most part, governed by statute.

[132] With that caution in mind, I note that in People v. Narciso Torres, 2012 Cal. App. Unpub. LEXIS 2714, at pp. 13-14, the Court of Appeal of California (4th App. Dist.) pointed out that the prejudice s. 352 of the California Evidence Code is designed to avoid is “not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence” (citations omitted in the original), but, rather, the misuse of information for an illegitimate purpose based on the jurors’ emotional reaction to that information. For a statement of the same principle in the Canadian context, see B. (L.), where at pp. 46-47, speaking for the court, Charron J.A. stated:

It is important to define what is meant by prejudice in this context. In its widest sense, any evidence that tends to prove guilt can be said to be prejudicial to the accused since it is detrimental to his or her position. Obviously that is not the kind of prejudice that calls for special evidentiary rules. Professor Delisle defines the meaning of prejudice in this context succinctly as follows:

Prejudice in this context, of course, does not mean that the evidence might increase the chances of conviction but rather that the evidence might be improperly used by the trier of fact. It is one thing for evidence to operate unfortunately for an accused but it is quite another matter for the evidence to operate unfairly. The trier who learns of the accused's previous misconduct may view the accused as a bad man, one who deserves punishment regardless of his guilt of the instant offence and may be less critical of the evidence presently marshalled against him.

Comparing the definition set out in Narciso Torres and the other American cases I have considered to the aforementioned passages from B. (L.), I am confident that the meaning the American authorities ascribe to “prejudice” in this context is, for all intents and purposes, the same as the definition employed in this country. That said, because the provisions of the various Evidence Codes closely mirror Canadian common law in this respect, I am confident that the American authorities to which I refer below are useful comparators in weighing the probative value of the evidence proffered in the case at bar against its potential prejudice.[^19]

[133] Second, where I have cited cases decided in American federal courts, one must bear in mind that the review of state appellate decisions by federal courts turns on the right of due process guaranteed to defendants by the Fourteenth Amendment to the United States Constitution, which has, quite obviously, no application to the instant case. Accordingly, I have only cited cases in which the reviewing federal court has expressly approved of the decision in the court(s) below, where, as noted above, the considerations governing the admissibility of evidence are effectively the same as in Canada.

[134] Third, some of the cases to which I refer are “unpublished”.[^20]

[135] Bearing those caveats in mind, I propose to examine the response of some of the American authorities to the arguments advanced by counsel in the case at bar.

[136] Defence counsel argue that the videos proposed for admission in this case are of limited probative value and such value as they might have is eclipsed by what counsel contend is the profound prejudicial effect they will have on the jury. With one exception, to which I will momentarily refer, faced with comparable video evidence, American courts, at least in the cases I have reviewed, by and large do not support this view.

[137] The exception is Commonwealth v. Gray, 436 Mass. 731. In Gray, the appellant was convicted of first degree murder. One ground of appeal was that the trial court erred in admitting a rap video that depicted the appellant, along with others, wearing “‘gangsta’ clothing” with bandanas over their faces. The Supreme Judicial Court of Massachusetts described the video as being “replete with words and images that appear[ed] to glorify violence (‘we have pills, perps, pistols and powder. It’s a P-Thang’)” (at p. 744). The court acknowledged, at p. 752, that “[i]n the circumstances of an apparently random shooting on a public sidewalk, evidence of the feud between H-Block and Heath Street, and of the defendant’s membership in Heath Street, was relevant to provide a reason for an otherwise inexplicable killing.” Nonetheless, the court reversed the conviction because it considered that the prejudicial effect of the video outweighed its probative value. It is important to note, however, that Gray had not otherwise contested that he was a gang member and, although he had not formally done so, he had offered to stipulate at trial that he was member of the gang in question, such that the probative value of the video was greatly reduced. No such offer, much less a formal admission, has been made in the case at bar.

[138] In Narciso Torres, at p. 12, the court agreed with the appellant’s submission that a YouTube video introduced at his trial portrayed members of the gang to which he was said to belong as “violent, dangerous, misogynistic, and crude” and tended to show that they intended to kill others. Nonetheless, the court upheld the conviction on the basis that “the probative value of the video was very strong”, because it established a clear motive for the appellant to commit the crime and because it provided “compelling evidence that the crimes were gang-related.” The court held that, because a motive is ordinarily the incentive for criminal behaviour, generally speaking the probative value of evidence of motive will outweigh any attendant prejudice.

[139] In People v. Panfilo Torres, 2012 Cal. App. Unpub. LEXIS 6236, the appellants appealed their convictions for murder and assault with a firearm. The Court of Appeal of California (3rd App. Dist.) upheld the admission of three videos in the trial of the appellants on charges of having committed murder for the benefit of a criminal street gang. One video showed a gang fight taking place among a number of women while a group of men stood by making gang hand signs; a codefendant displayed a gun. The second video showed a number of men making gang hand signs, break dancing and swearing. Two men in that video were displaying guns. The third video included a codefendant, who was seen to be carrying a handgun. In that video, men were dancing to rap music, showing their tattoos, drinking beer and flashing hand signs. The court held that inasmuch as they demonstrated that the men used common identifying symbols, wore gang attire and used a common slang, the videos were probative of the existence of the gang in question and the fact that it consisted of at least three people, as the California statute[^21] requires in order for a group to constitute a criminal street gang.

[140] In U.S. v. Mejia (2008), 280 Fed. Appx. 32 (U.S.C.A. 2nd Circ.), an appeal from convictions for murder and conspiracy to commit murder, both in aid of racketeering, the court upheld the trial judge’s decision to admit a video tape of members of a gang known as MS-13 attending a wake for a deceased gang member. Despite the appellant’s complaint that the prejudicial impact of the tape “far outweighed” its probative value, the court held, at p. 33:

The significant probative value of this videotape is clear: it confirmed the existence of the MS-13 gang and corroborated the testimony of the government’s expert witness with respect to the gang’s practices and conduct. This evidence went directly to the issue of whether Mejia’s criminal conduct was related to a racketeering enterprise.

[141] In White v. Texas, 2011 Tex. App. LEXIS 8118 (not designated for publication), the appellant had been convicted of murder. It was alleged that the appellant was a member of a street gang called “Hated By Many” (“HBM”). The trial judge admitted two videos. The first, a surveillance video from a local hospital, showed the appellant and other HBM members assaulting an individual (not the victim of the murder) at the hospital. The second was a YouTube video which showed the appellant and other members of HBM “throwing gang signs”, holding AK-47s and MAC-10s, and tagging property with graffiti. The Court of Appeals of Texas (8th Dist.) upheld the trial judge’s decision on the basis that the video evidence “strongly tended to prove” that the appellant acted with “intent to participate in a criminal street gang” (at pp. 25-26). As in the case at bar, at least as it relates to Mr. Mills, that was one of the elements the prosecution in White had to establish to prove two of the counts charged.

[142] In Marroquin v. Uribe, 2010 U.S. Dist. LEXIS 23984, the defendant was convicted of robbery for the benefit of a criminal street gang. The trial court admitted a video that the defendant complained portrayed him as a “violent and contemptible gang leader” and was “laden with gang lingo, slang, and screaming.” On reviewing the decision on constitutional grounds, the District Court expressly approved of the California Court of Appeal’s decision that the video was admissible to show motive for the crime.

[143] In People v. Mireles, 2008 WL 588937 (unpublished), the California Court of Appeal (2nd App. Dist.) upheld the appellant’s convictions for first degree murder and discharging a firearm, both for the benefit of and in association with a criminal street gang. The appellant argued that the trial court had erred by admitting a portion of a National Geographic program concerning the Mara Salvatrucha (“MS”) gang that had previously aired on national television. A police gang expert testified that he could identify the appellant on the video. The video was played for the jury with the voice-over narrative deleted, but leaving in certain things said by gang members, including the person identified by the police officer as the appellant. The court held that the video was properly admitted because certain admissions by the appellant were “highly relevant” because they “not only showed [the] appellant’s adherence to the gang’s territory but also included direct evidence that [the] appellant possessed the intent necessary to render him an aider-abetter [sic] and principal to the murder.” The court went on to say that the video was prejudicial “only in respect of establishing facts and elements of an admittedly violent case” and did not “gratuitously elicit a bias against [the] appellant, unconnected to his acts” (at p. 5).

[144] In Carrillo v. Gonzalez, 2010 U.S. Dist. LEXIS 48463, the trial court admitted what was referred to as “a general Colonia video” by a rapper known to make videos for a particular street gang, the “Colonia Chiques”. The video depicted a number of tattooed members of the gang making gang signs, talking about guns and simulating different types of crimes they commit with firearms. The petitioner was not involved in the video. The United States District Court for the Central District of California expressly agreed with both the trial and appellate courts that the video was relevant to show the existence of the Colonia Chiques as a criminal street gang.

[145] In R. v. O., [2010] EWCA Crim 2985, the appellant was convicted of possessing a firearm and possessing ammunition, each count alleging an intent to endanger life, contrary to s. 16 of the Firearms Act, 1968. The trial judge admitted a music video downloaded from YouTube. A local police officer, “with knowledge of the area and possible insight as to street language but [who] was not put forward as an expert and [who] denied being one”,[^22] identified the appellant as being the main person depicted in the video (at para. 10). The officer testified that the purpose of a gang making such a video and of posting it on YouTube was to incite violence among gangs and explained her understanding of certain phrases and lyrics in the video, including the terms “Mack” and “Nine”, which were slang for firearm.

[146] The English Court of Appeal (Criminal Division), at paragraph 17, considered that “[it was] plain … that the video was left to the jury as a matter going to a disposition or propensity of the appellant as a gang member to use gun violence for the purposes of endangering life. Therefore, if that evidence was accepted on that basis, it would have made it more likely that the appellant was guilty of the offence of possessing the weapon with the intent alleged.”

[147] The court upheld the trial judge’s decision, on the basis that “the judge was entitled to admit this evidence at any rate under gateway (d).” (Gateway (d) provides for admission of evidence where “it is relevant to an important matter in issue between the defendant and the prosecution.”[^23]) The court held that the evidence was “relevant to the important matter in issue of whether the gun found at his feet but not mentioned to the taxi driver was in his possession with the intent to endanger life.” Although the court found that the trial judge did not advert to s. 101(3) of the Criminal Justice Act,[^24] as he was obliged to do, the court considered that it was harmless error inasmuch as, “prejudicial as such evidence necessarily is, it would not have such an adverse effect on the fairness of the proceedings that the court ought not to admit it” (at paras. 21-26).

[148] The obvious differences between English and Canadian evidentiary law cause me to consider this case with some caution. Nonetheless, despite those differences, I find that the case is useful in the limited sense that it confirms my opinion that a properly instructed jury can make proper use of evidence of this nature without it overcoming their ability to decide the case in a reasoned and dispassionate manner.

[149] As well as being probative of both motive and an essential element of s. 231(6.1), the videos are also probative in two other ways.

[150] First, the videos provide support for the identification evidence of the eye witness to the shooting, Vernon Flavius. To the extent that the videos associate the accused with M.O.B. Klick, they will tend to enhance Flavius’ identification of Mills as the man who shot Celise and Williams as his accomplice. See People v. Ross, 2012 Cal. App. Unpub. LEXIS 8431, where the California Court of Appeal (2nd App. Dist.) held that, as well as being relevant to motive, a video demonstrating the appellant’s membership in the Lynwood Neighborhood Crips was “also relevant to corroborate [the witnesses’] identification of [the] defendant” (at p. 60). In that case, in fairness, this secondary relevance was more compelling because the State’s witnesses actually first identified the defendant from the YouTube video.

[151] In this case, the shooting occurred in M.O.B. Klick territory and appears to have been the result of the shooter and his companion taking issue with the fact that the deceased was wearing a blue bandana in an area controlled by a Blood-affiliated gang. That said, the fact that the videos portray the accused as being members of M.O.B. Klick tends, albeit to a lesser degree than in Ross, to support circumstantially what I understand will be Flavius’ identification of Mr. Mills as the shooter and Mr. Williams as his accomplice.

[152] Second, the proffered videos are also probative in that they tend to support the evidence of Det. Backus.

[153] In Mejia, court held that it was “clear” that the video tape introduced by the prosecution had “significant probative value” because “it confirmed the existence of the MS-13 gang and corroborated the testimony of the government’s expert witness with respect to the gang’s practices and conduct” (emphasis added). Likewise, in Panfilo Torres, the court noted the trial judge’s finding that “the videos would support expert testimony” in several respects (at pp. 20-21). See also R. v. O.

[154] In the case at bar, it must be remembered, the defence takes strenuous issue with Det. Backus’ expertise. In light of the position taken by both accused respecting what they contend is Backus’ lack of proper qualification, it should be open to the prosecution, in my view, to support Backus’ testimony by visually depicting the actual phenomena that Backus asserts suggest the existence of a street gang and, further, to depict the defendants engaging in behaviour that Backus will say typifies membership in such a gang.

[155] Defence counsel further assert that the prejudice of the proposed evidence is so grave that no judicial instruction can offset the damage. Again, I disagree.

[156] In People v. Carrillo, 2008 Cal. App. Unpub. LEXIS 2882, the appellant appealed his conviction for murder and discharging a firearm, both for the benefit of a criminal street gang. A music video entitled “Gangsta Games” was introduced by the prosecution to prove that the gang qualified as a criminal street gang.[^25] In dismissing the appellant’s claim that the video was unduly prejudicial, the Court of Appeal of California (2nd App. Dist.) referred to the trial judge’s observation that “unless the jurors are properly instructed, … [the video] could be quite prejudicial” (at p. 8; emphasis added).

[157] In Carrillo v. Gonzalez, the United States District Court agreed with the courts below that a limiting instruction would suffice to overcome any prejudice the video in that case might engender.

[158] In Panfilo Torres, at p. 23, the appellate court noted that the trial judge “solicited a draft limiting instruction from each of the defendants, suggesting an appropriate manner in which the jury could consider the [video] evidence”, but went on to note that no such instruction appeared in the record. I take from those comments, and the fact that the appeal was dismissed despite the apparent absence of a limiting instruction, that the court was of the view that any prejudice that might arise from the introduction of the video evidence was certainly capable of being overcome by appropriate instruction.

[159] In White, at p. 26, the appellate court held that “any potential to create undue prejudice would have been counteracted by the trial court’s limiting instruction”.

[160] In Mejia, at p. 33, the court expressed the following view of the efficacy of instruction in overcoming possible prejudice:

Balanced against this substantial probative value is the danger that the videotape of a young man’s wake – possibly the result of gang violence – would unfairly prejudice the jury against Mejia. We find this risk of unfair prejudice vanishingly small, particularly in light of the District Court’s limiting instructions, and see no abuse of discretion in the Court’s decision to admit the evidence. [Emphasis added.]

[161] Contrary, then, to the submissions of defence counsel that no judicial instructions can overcome what they contend is the “overwhelming prejudice” that the proffered videos will engender, the authorities cited above reinforce my conviction that any potential prejudice the videos might create can, indeed, be overcome by appropriate instruction.

[162] With that brief overview of cases in which video evidence has been received, I turn to examine the individual videos the Crown seeks to tender.

“Bloodz”

[163] The Crown seeks to adduce a video entitled “Bloodz”. The video shows a bunch of young men hanging around the back of a building. It is said to be relevant in the following ways.

[164] The video is said to show gang rivalry. It appears to be a wake for two members of the gang, one of whom is supposedly Flagiello, who, as earlier noted, is said to have been killed by a member of the EWC. At the risk of repetition, I note that the video held to have been properly admitted in Mejia depicted a wake being held for a deceased gang member.

[165] The video shows numerous young men making what Backus will say are well recognized Bloods hand signs. I note, parenthetically, that the signs are such that, in my opinion, their meaning would not be obvious to the average juror untutored in the customs and habits of street gangs.

[166] Both Mr. Mills and Floyd Francois are heard making utterances. In particular, Mr. Mills is heard to say the words, “Bang, Bang, Blood gang”. The Crown alleges that statement is a threat of sorts toward the EWC and is in direct response to the killing of Flagiello. It is also important to note, in this context, that the evidence will show that Mr. Mills was present when Flagiello was killed.

[167] Mr. Rodocker contends that this video is of “little relevance”. In particular, he argues that Mills’ statement in the video, “Bang, Bang, Blood gang”, should be redacted. I disagree. The statement can be taken as an admission of one of the factors that the Crown is entitled to prove vis-à-vis establishing motive and one of the essential elements it must establish to prove that Mills is guilty of first degree murder pursuant to s. 231(6.1), namely, that M.O.B. Klick is a street gang. I note that in People v. Aguayo, 2010 Cal. App. Unpub. LEXIS 9831, the California Court of Appeal (4th App. Dist.) held that a video in which, amongst other things, the appellant can be heard to say, “Banging in the hood is the thing for me, I’m going to bang my hood till they kill me”, was properly admitted at trial. The court also held that a compact disc seized in the search of the home of another member of the same gang, which showed the appellant saying the words, “West Side Riverside till I die” and “West Side Riva be the gang. Lobos clique be the clique that I mother fucking bang” was properly admitted.

[168] “Bloodz” is highly probative in my opinion. It tends to establish that M.O.B. Klick is a street gang and, by extension, a criminal organization. It also tends to establish the motive the Crown ascribes to the accused. As for potential prejudice, all the men are doing in “Bloodz” is “hanging around”, to speak in the vernacular. There is nothing particularly violent about the video.

[169] In People v. Thompson, 2011 Cal. App. Unpub. LEXIS 9554, although the appeal was allowed on other grounds, the California Court of Appeal (3rd App. Dist.) held to have been properly admitted at trial a video depicting “numerous individuals, including [the] defendant and six additional individuals identified to be Oak Park Blood, FAB and Ridezilla gang members talking and ‘rapping’” (at p. 4; footnotes omitted). From the description given, the video seems to me to be very similar to “Bloodz”. I note, parenthetically, with reference to Mr. Rodocker’s argument that all references to firearms must be deleted from the videos proposed for admission here, that the video in Thompson included a lyric in which the appellant stated, “I keep the .40 on me Homie riding through the ghetto.”

[170] That said, balancing the probative value against the potential prejudice of this video, I am of the view that the former significantly outweighs the latter. It is admissible.

“Hood Life”

[171] The Crown seeks to adduce a YouTube video entitled “Hood Life”. It is said to be relevant in the following ways.

[172] The video shows a geographical area, including several shots of street signs that identify intersections known to be in an area said to be M.O.B. Klick turf. This tends to confirm the concept of territoriality that Det. Backus will say is important to street gangs. Backus will also say that it is characteristic of street gangs to make their territory known on YouTube and/or other social media in order to warn other gangs that they ought not to enter the area.

[173] The lyrics of this video are found in the documents seized at 481 Vaughan Rd. and thus tend to establish that Mills was the author of the documents seized during the search and, by extension, the letters the prosecution attributes to him.

[174] Both Mr. Mills and Mr. Williams can be seen in the video. Mr. Mills is performing a rap song; for his part, Mr. Williams is simply captured in the occasional frame, but he is not doing anything of particular note. Nobody in the video is doing anything particularly offensive. I conclude that the video is not prejudicial in terms of its visual content.

[175] The lyrics, on the other hand, convey that the gang is involved in selling drugs; they also refer to guns. According to Det. Backus, selling drugs is one of the principal activities of a street gang and guns are also a large part of this culture. That said, to the extent that the jury interprets the singer as being serious in terms of what he says about guns and drugs, although potentially prejudicial, these discreditable sentiments tend to prove the existence of M.O.B. Klick as a street gang. Mr. Rodocker contends that the lyrics should be redacted to remove any reference to guns because the jury will interpret these remarks as a propensity on the part of Mr. Mills toward violence.

[176] I find that the probative value of the video is considerable because it provides a basis from which the jury could infer that the murder of Celise was gang-related. Thus, it speaks directly to motive. Further, in relation to Mills, it tends to establish the essential element the Crown must prove to establish first degree murder, namely, that Mills killed Celise for the benefit of, or in association with, a criminal organization. To do as Mr. Rodocker suggests would rob the video of a significant portion of that probative value.

[177] Ms. Gadhia complains about one point in the video where her client is seen “giving the finger” to the videographer. She also refers to Det. Backus’s first report wherein he associates Lavare Williams to M.O.B. Klick. She contends that, given the gesture Williams makes, the video is equivocal as to whether Williams is even involved in the activities in which the other young men on the video appear to be engaged. What Ms. Gadhia’s argument ignores, however, is that the jury’s decision whether Williams is a member of M.O.B. Klick must be made, not on the basis of this video viewed in isolation, but, rather, from the evidence as a whole, of which this video is only one small part. Given that I do not propose to allow Det. Backus to opine that Williams is a member of M.O.B. Klick, in my view there is no potential prejudice to Williams from the jury seeing this video. Whether he is or is not actively involved in the making of the video will be a matter for the jury to determine.

[178] In Panfilo Torres, among other grounds, the appellant argued that the trial judge erred by admitting three YouTube videos because the videos focused, not on him, but mainly on two other young men and, further, because there was no evidence showing when the videos were made or that he was “involved in, participated in or even knew of the existence of the videos” (at p. 24). The court upheld the trial judge’s decision to admit the videos because they were relevant to demonstrate that the gang in question had at least three members and to show the appellant’s membership in the gang.

[179] Similarly, in Narciso Torres, the court upheld the trial judge’s decision to admit a video that included two photos of the complainant, a rival gang member, with an “X” across his face, notwithstanding there was no evidence as to who created the video, when it was made, or that the defendant knew anything about it.

[180] I conclude that any potential prejudice from this video is significantly outweighed by its probative value and I therefore hold that it is admissible in evidence.

“Cocaine Alumni”

[181] The Crown seeks to adduce a video entitled “Cocaine Alumni”, which is said to be important in the following ways.

[182] To begin, the Crown contends that Mills makes various statements in this video that amount to declarations of membership in M.O.B. Klick.

[183] The lyrics in the video are said to be identical to writings found in the course of the execution of the search warrant at 481 Vaughan Rd., thus amounting to some evidence that Mills authored those documents.

[184] In the video one sees Mills speaking the lyrics, “RIP Bubba” and “I’m in the middle of a murder beef”. Mills also speaks of being unable to go to the police respecting what he knows about the death of “Bubba” (Flagiello) because it would be equivalent to “snitching” (informing), which Backus will say is contrary to the credo of street gangs. These snippets, the Crown argues, reflect the desire to avenge Flagiello’s murder.

[185] Mr. Rodocker contends that the video is too inflammatory to be shown to the jury unexpurgated. He says that lyrics such as “I just want to unload and reload” and “I’m in a murder beef” invite the jury to engage in propensity reasoning. In my view, while the lyrics bespeak violence, in the context of the motive alleged here, their probative value in terms of animus and, hence, motive outweighs any prejudice they might entail.

[186] Mr. Rodocker also complains that this is the video respecting which Backus mistook what appears to be a knife held by one of the persons in the video for a gun.[^26] He contends that the jury is likely to make the same mistake. This submission is without merit. Counsel will be able to cross-examine Backus to make clear that what the person is holding is not a gun, but, rather, a knife, and counsel will be able in final argument to invite the jury to take a very close look at this portion of the video in order to see for themselves that, indeed, what the young man is holding is a knife. Against that backdrop, the danger counsel postulates is illusory.

“Chiibz Freestyle”

[187] The Crown seeks to adduce a video entitled “Chiibz Freestyle”. The video is just over three minutes in length and consists of five still images, only one of which is visible at any given point in the video. The images change from one to another, back and forth, with one of them, depicting Lavare Williams standing by himself, being the predominant image throughout the short video.

[188] The video is said to be probative of the Crown’s case in the following ways.

[189] To begin, one image depicts Williams and Mills standing together, thereby amounting to evidence of association between them.

[190] Several images show Williams wearing a hooded sweatshirt with the letters “Y. M.O.B.” on it. This is said, according to Backus, to mean “Young Member of Bloods”. This is important to the Crown because it tends to show that he is a member of a Blood gang. It is also important to counter the proposition put to Backus in cross-examination at both the preliminary inquiry and the evidentiary phase of this hearing, with which he agreed, that the letters “M.O.B.” do not necessarily mean “Member of Bloods”, but, rather, can be also understood among people of the accused’s age to mean “Money Over Bitches”.

[191] The image of Mr. Mills shows him wearing a sweatshirt that has the words “V.O. Mobsta” on the front. The letters “V.O.” are said to be a short form of “Vaughan and Oakwood”.

[192] The lyrics are said to be important to the Crown’s case because they tend to show that Williams is a member of M.O.B. Klick. Furthermore, if the jury finds that the voice on “Chiibz Freestyle” is in fact Williams’, then it is potentially an important link for the jury to identify a voice on the video, “You Don’t Really Want It”, in which the singer the Crown contends is Williams cannot be seen. Those lyrics are important, in turn, because they speak to avenging the death of Flagiello.

[193] The video is also important respecting Williams because it debunks the suggestion put to Backus in cross-examination in the evidentiary phase of this hearing, namely, that the only images of Williams in the video “Hood Life” do not show him actively participating in the activities of the others shown in the video.

[194] The video is said by counsel for Williams to be prejudicial in the following ways.

[195] First, Ms. Gadhia contends that the mere fact that the visual component of the video consists of a photograph of him is no proof that Williams had anything to do with the production of the video. It is possible, Ms. Gadhia suggests, that someone could have made this video and loaded it onto YouTube without her client’s knowledge. That said, there is no evidence properly identifying Williams as the person whose voice can be heard on the video. I disagree.

[196] My comments above need not be repeated. Suffice it to say a lack of evidence as to Williams’ knowledge of or participation in the making of the video goes to weight and not admissibility. Similarly, in Narciso Torres, the appellate division noted that the video was adequately authenticated by the testimony of a gang expert that “he found the video on YouTube and the video was an accurate depiction of what it looked like on YouTube.” On the strength of that evidence, the appellate division dismissed the appeal on the basis that “[t]he trial court could reasonably conclude that the videotape was a reasonable representation of the YouTube video and that the video would assist the jurors in determining the facts of the case and motivation for the crimes.” The court held that “[a]ny weakness in the link [between the defendant and the video], because of uncertainty as to when the video was produced and whether defendant knew about the video, went to the weight of the evidence, rather than admissibility” (at pp. 11-12).

[197] Indeed, in virtually all of the American cases I have examined, the date the video was made was unknown; in none of those cases did the appellate court criticize the trial court for having admitted the video without knowing the date it was made or the date it was uploaded to YouTube.

[198] In this case, in my view, the following circumstantial evidence would permit the jury to conclude that it is Williams speaking in the video:

(i) his image is in every one of the screens that one sees in the video;

(ii) he is wearing a sweatshirt sporting the name “Chiibz”;

(iii) he is in other similar videos together with Mr. Mills (who is also seen in “Chiibz Freestyle”);

(iv) his then girlfriend, Ashley Bryan, will say that Williams was also known by the nickname “Chiibz”;

(v) sheets of written lyrics found in the videos said to include Williams were seized in the search of 481 Vaughan Rd., where he is said to have lived prior to his arrest; and

(vi) by means of handwriting analysis that will be adduced, the Crown contends that it can prove that these lyrics were written by Williams.

Against that evidentiary backdrop, though possible, the likelihood that someone was using Williams’ photograph without his knowledge to make these videos, is, to borrow a turn of phrase from Mejia, “vanishingly small.”

[199] Ms. Gadhia’s second complaint is that Williams is seen in one image smoking what appears to be a marijuana cigarette, seen in two images holding what appears to be a bottle of rum and, in one of those two images, appears to be actually drinking from it. These objections are of no moment. Average Canadian adults, twelve of whom will form the jury in this case, surely understand that many young men drink alcohol. They also understand that many young men frequently smoke marijuana. Albeit, medical exceptions aside, possession of marijuana is illegal, it is so ubiquitous, and a large segment of the Canadian public so tolerant of its use as a recreational drug, that it is inconceivable to me that average jurors would be more inclined to convict an accused of murder than they might otherwise be based on the rest of the evidence by virtue of the fact that the accused smokes marijuana and/or drinks alcohol. Thus, neither of those factors is such, either alone or in combination, as to cause any propensity reasoning on the part of the jury.

[200] The third objection to this video is that the lyrics allude to, and extol the virtues of, selling drugs, such that the video amounts to evidence of bad character that will prejudice the accused. The lyrics show an interest on Williams’ part in selling drugs. According to Backus, the sale of illegal drugs is at the heart of what street gangs do and gangs do not tolerate non-members dealing drugs in gang territory. Therefore, if the jury were to find that M.O.B. Klick is a criminal organization, Williams’ interest in selling drugs would amount to some circumstantial evidence that Williams is a member of M.O.B. Klick.

[201] In my opinion, albeit the evidence reflects bad character on the part of Williams, there is no necessary logical connection between selling drugs and intentionally killing someone. That is particularly so where, as in this case, drug dealing forms no part of the motive alleged by the Crown. That said, the prospect that the jury will utilize propensity reasoning to deduce that Williams is a drug dealer and, because he is a drug dealer, he is therefore more likely to have killed Celise is so remote as to be unrealistic. Equally, in a society in which the existence of an illegal drug trade is well known, the notion that the jury would be apt to convict the accused of murder in order to punish him for the extraneous misdeed of dealing drugs is equally unrealistic. To the extent that the jury might be inclined toward either of these forbidden routes to a guilty verdict, I am confident that any such inclination can be overcome by proper instruction in that behalf.

[202] Accordingly, none of the arguments raised by Ms. Gadhia persuades me that the potential prejudicial effect of this evidence outweighs its probative value. On the contrary, being firmly of the opposite view, I hold that the video is admissible.

“You Don’t Really Want It”

[203] The Crown seeks to adduce a video entitled “You Don’t Really Want It”. The entire video consists of one constant, still image of Mr. Mills. He is standing with the middle finger of each hand extended, so as to fashion what is widely, if not universally, accepted to be an obscene gesture, often referred to in common parlance as “the finger”. The image also includes the words “Heartless G” in its upper left hand corner; as earlier indicated, that is a nickname Mr. Mills is known to use. Below Mr. Mills’ nickname is the title. Below the title is the word “Featuring” and beneath that are what appear to be three nicknames. One of those names is “Chiibz”, which, as noted above, is said to be a sobriquet by which Williams is known and, indeed, forms part of the title of one of the other videos the jury will see.

[204] Accompanying this image is an audio track of several male voices. The Crown contends that two of the voices are those of the accused.

[205] The Crown contends that, if the jury were to agree with the Crown’s contention that Mills and Williams are, indeed, two of the persons speaking, then the video is evidence of association between the accused.

[206] Further, the lyrics speak to animus between M.O.B. Klick and its rival, the EWC. Moreover, they speak to a specific intention to kill a member of the EWC.

[207] Turning to Mr. Rodocker’s submissions, he first argued that certain spoken passages in the video, attributed by the Crown to Francois, should be redacted because his client cannot be held accountable for sentiments expressed by others. I disagree. If the jury were to decide that Mills by his words and/or actions in the video had adopted the sentiments expressed by Francois in the same video, then they would be entitled to consider Francois’ statements as some evidence either for or against Mills.

[208] Mr. Rodocker contends that, irrespective of who the speaker is, certain lyrics should be redacted because they are inflammatory. He mentions in this context the lyric “bullets passing out”. This clearly refers to shooting, according to Mr. Rodocker; as such, it is inflammatory and will invite propensity reasoning.

[209] If it were simply a matter of a vague reference to violence, I might agree. However, the video also includes the following words spoken by Mr. Mills: “that beef I’m on it; and the pigs can’t solve it.” As for the first part of the lyric (“that beef, I’m on it”), the evidence will show, as noted earlier, that Mills was present when Flagiello was shot to death. The second portion (“the pigs can’t solve it”) is said to reflect the fact that the murder of Flagiello was, as of the time the video was uploaded onto YouTube, unsolved.[^27] The Crown argues, and I agree, that this couplet is capable of being understood as a reference to the death of Flagiello. In that context, the reference to “bullets passing out” is capable of being understood as a threat to avenge Flagiello’s murder.

[210] In short, Mr. Rodocker argues, all references to guns and killing should be redacted.

[211] As McMahon J. stated in R. v. Araya, [2011] O.J. No. 5002 (S.C.J.), at paragraph 5, “A murder trial is not simply some intellectual academic exercise that should be conducted in an antiseptic and sanitized fashion.” See also R. v. Sandham, [2008] O.J. No. 5805 (S.C.J.). To do as Mr. Rodocker proposes would be “to create an entirely sterile and antiseptic record devoid of the realities of the individual circumstances of the participants” (R. v. Pheasant, [1995] O.J. No. 4962 (Gen. Div.), at para. 14), thereby denuding the evidence of much of its probative value.

[212] On behalf of Mr. Williams, Ms. Gadhia once again adopts Mr. Rodocker’s submissions. She goes on to add that a particular stanza in the video, attributed by the Crown to her client, is offensive because it expressly mentions killing. She argues that this evidence will have even more prejudice than it might otherwise because it will come from Backus, who will have been qualified as a gang expert.

[213] As for Ms. Gadhia’s first point, given the alleged motive, the fact that the stanza mentions killing is what gives it its probative value. As for her second point, the jury will be instructed, both at the time the expert is called and again in my final instructions, that they must make their own determination of the weight to be attached to the evidence and, while they may see fit to be guided by the expert’s opinions, they must neither allow themselves to overawed by the expert nor abdicate their fact finding function to him.

[214] Ms. Gadhia also argued that the evidence of motive on the part of M.O.B. Klick was of no relevance vis-à-vis her client because he was incarcerated at the time Flagiello was murdered. At the risk of stating the obvious, it matters not where Williams was when Flagiello was killed, but only that he came to know about it. There is a significant body of evidence from which the jury could find that Williams knew of Flagiello’s demise and, further, that it was commonly thought among members of M.O.B. Klick that he was killed by a member of EWC.

[215] To state the obvious, while expressing an intention to kill someone is apt to be offensive to the jury, given the motive alleged in this case, the probative value in relation to both accused is high and, in my opinion, significantly outweighs any prejudice that might attend this evidence.

[216] The Crown indicated in oral argument, however, that it would be content to simply show the single image to the jury, but not to have it displayed throughout the entirety of the time the lyrics are playing. In light of that concession, if defence counsel are of the view that the image itself is prejudicial, I will allow the jury to see only a screen capture of the image, but not permit it to be displayed as the audio is played.

“Thug Mentality”

[217] The Crown seeks to adduce a video entitled “Thug Mentality”.

[218] The video demonstrates in very clear terms, according to Ms. Misener, that M.O.B. Klick is a gang.

[219] As for Mr. Mills, he can be seen wearing a red sweatshirt that has the words “M.O.B. Klick” written in large letters on the back and can be seen at various points making Bloods hand signs.

[220] Mr. Rodocker contends that the audio portion of the video should be redacted because there are explicit references to guns that will invite propensity reasoning on the part of the jury. He also contends that certain images in the video should be redacted, namely, several that show his client making gestures with his hand as though simulating the discharge of a handgun. I disagree.

[221] Backus will say that one of the things street gangs aspire to is possession of guns. Lyrics exalting the possession and use of guns are therefore some circumstantial evidence supporting the proposition that M.O.B. Klick is in fact a street gang and, by extension, a criminal organization. Similarly, images of Mills making hand signs simulating the discharge of a gun are, though mute, nonetheless capable of being understood as a declaration, as it were, on his part that he is willing to use a gun to effect the aims and objectives of the gang. Further, the ability of gang members to acquire guns is important to the Crown’s theory of the case.

[222] Turning to Mr. Williams, although he does not speak in this video, he can be seen at various points in the video.

[223] Echoing Mr. Rodocker’s submissions, Ms. Gadhia goes on to add that the video is particularly problematic respecting her client precisely because there is no audio portion that the Crown attributes to him. Although Ms. Gadhia conceded in oral argument that the video “goes a long way to show that M.O.B. Klick is a gang”, nonetheless one cannot deduce, she contends, from the mere fact that Mr. Williams is seen in the video, that he took an active part in its production. Thus, Ms. Gadhia argues, the video does not advance the Crown’s case. Again, I disagree.

[224] While Mr. Williams’ participation in this particular video may be less than that of Mr. Mills, it does not mean that he is not participating in it. In that sense, he is no different than an actor who plays a “silent on-camera” role in a motion picture. It cannot reasonably be said that the silent on-camera actor does not contribute to the film. Likewise, in my view, Mr. Williams’ presence in the video is capable of being understood as him taking an active role in its creation. That participation is, in turn, capable of being understood as a manifestation of the fact that he subscribes to the attitudes and aspirations of M.O.B. Klick.

[225] The other problem with Ms. Gadhia’s analysis in this regard is that she is, in effect, asking the court to view the video in isolation from the rest of the evidence the jury will consider. It is trite to observe, however, that the jury must not consider the evidence in a piecemeal fashion, but, rather, “in its total and cumulative effect”: R. v. Monteleone (1983), 1982 2162 (ON CA), 38 O.R. (2d) 651, at p. 657, aff’d, 1987 16 (SCC), [1987] 2 S.C.R. 154.

[226] In my view, respecting both accused, the probative value of the video significantly outweighs any prejudice it might engender and it will be admitted.

Summary Re: M.O.B. Klick Videos

[227] Before leaving the subject of the M.O.B. Klick videos, I note that in none of the aforementioned authorities was the number of videos put before the jury as large as the number I have permitted in this case. That said, while in one instance only the audio was played, as opposed to playing audio and video together (which I am prepared to do here respecting “You Don’t Really Want It”), in no case were videos excluded on the basis that their cumulative effect would overwhelm the jury. On the contrary, in the absence of any indication in the cases upon which I have relied that videos were excluded on that basis, I infer that what went before the jury, in each case, was all the videos in the prosecution’s possession. Therefore, although the number of videos to be admitted in this case exceeds the total number in any of the American cases, three points are apposite.

[228] First, the total number to be adduced is still significantly less than the number first proffered by the prosecution for admission and vastly less than the approximately 76 available online.

[229] Second, notwithstanding that the number of videos to be put before the jury exceeds the number in any of the authorities upon which I have relied, I am satisfied, as noted above, that the probative value of each exceeds its prejudicial effect and further satisfied that each is required to permit the Crown to fairly present its case.

[230] Third, and most importantly, I am confident that the jury will not be overwhelmed by the cumulative effect of the videos, but, rather, with the benefit of proper instruction, will be able to make proper use of their probative value and to avoid using them in ways prejudicial to the fair trial interests of the accused.

Eglinton West Crips Video: “Eglinton N Northcliff”

[231] The Crown seeks to adduce a video entitled “Eglinton N Northcliff”, also downloaded from YouTube. The relevance of this video is said to be that it shows that the EWC exist as a gang and, further, it gives the jury an idea of the territory over which the EWC endeavour to exert influence. Neither accused objects to the introduction of this video. Accordingly, I rule that it is admissible in evidence and, further, that, within the limits that I will impose on the nature and scope of the opinions he may offer, Detective Backus may comment upon what he sees in the video.

Transcripts of Video Lyrics

[232] The Crown asks the court to permit the jury to have transcripts of the lyrics of the various videos I have ruled admissible.

[233] Counsel for each accused protests that the jury ought not to be provided with transcripts.[^28]

[234] In my view, the Crown’s request is in keeping with a long standing practice in this jurisdiction of providing jurors with a transcript of recordings to assist with their understanding of them. This is routinely done with recordings of 911 calls, confessions and intercepted private communications, to mention some obvious examples. I see no difference in principle between a jury having a transcript of any of those sorts of recordings and this jury having a transcript of what is alleged by the Crown to be said on the various videos the jury will hear. Having listened several times to the videos, in my opinion, it is more important in this case than in some others that the jury have transcripts because, by virtue of the slang used being unfamiliar and the speed at which some of the persons speak, the words spoken are, at times, difficult to understand. It is, of course, open to the accused to challenge the accuracy of any of the transcripts.

[235] Provided the jury is given proper instruction that the transcript is not evidence and, to the extent of any disparity between what they hear and what they read, they must utterly disregard the latter, I see no prejudice to the accused: R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 78; cited in R. v. C.D., 2012 ONCA 696, [2012] O.J. No. 4847.

[236] Accordingly, the Crown may provide the jury with any of the transcripts upon which it relied in the course of this application.

Screen Captures From Videos

[237] The Crown also seeks to introduce certain screen captures from videos that it will not otherwise introduce into evidence.

[238] Mr. Rodocker acknowledges the relevance of most of the proposed screen captures, but argues that the prejudice outweighs any probative value they might have.

[239] Ms. Gadhia argues that the screen captures are problematic because the jury will be tempted to look at the rest of the video from which the image was taken. I dealt with this issue on a separate application brought by Ms. Gadhia to have the court order YouTube to remove all these videos forthwith and not post them again for the duration of this trial. As I indicated in my reasons for decision on that application, I am satisfied that a firm warning to the jury that they are not to go to the Internet to look for material related to this case will suffice.

Information Upon Which Backus is Entitled to Rely

[240] As I have earlier indicated, Det. Backus will be permitted to testify as an expert on the subject of street gangs.

[241] In a general, non-case specific way, in giving his evidence, Backus may rely, inter alia, on those items enumerated at paragraph 221 of Gager, which for ease of reference I have replicated below:

221 For 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.

For greater certainty, the symbols referred to in (iii) above include tattoos commonly used by gang members.

[242] In terms of information specific to this case, Backus may also rely in support of his opinions on the following:

(i) any Field Information Reports he reviewed in connection with this case upon which he relied (subject to an instruction, per Abbey (1982 25 (SCC), [1982] 2 S.C.R. 24), that to the extent that he relies on facts not proven before the jury, his opinion may be weakened);

(ii) information concerning this case he acquired from other officers orally;

(iii) any video he has viewed in relation to this case;

(iv) any of the documents seized upon the execution of the search warrant at 481 Vaughan Rd.;

(v) all the letters allegedly authored by Chael Mills that were the subject matter of this application (as redacted pursuant to the Crown’s proposals or concessions);

(vi) all the letters allegedly authored by Floyd Francois (as redacted pursuant to the Crown’s proposals) that were the subject matter of this application, except the letters allegedly authored by Francois to Williams and Steele (for greater certainty, except where the Crown conceded the defence position that certain portions of the letters should be redacted, the defence submissions in that behalf are otherwise rejected); and

(vii) transcripts of audio or video recordings, as discussed above.

[243] The Crown may adduce through Det. Backus and play for the jury in their entirety (both the audio and the visual) the following videos:

(i) the six M.O.B. Klick videos entitled: “Bloodz”, “Hood Life” , “Cocaine Alumni”, “Chiibz Freestyle”, “Thug Mentality”, and “You Don’t Really Want It” (subject to the qualification mentioned above); and

(ii) the Eglinton West Crips video entitled “Eglinton N Northcliff”.

Subject to the restrictions imposed infra, Backus may give opinions on the contents of these videos.

[244] In terms of other videos he has reviewed in connection with this case, Backus may refer, in oral evidence, to the content of the videos, but the Crown may not produce either the video or any screen capture therefrom, or other visual representation from such video, except the screen captures discussed in open court during the course of oral argument on this application on January 28, 2013. I hold that all those screen captures are admissible at the instance of the Crown.

Information Upon Which Backus May Not Rely

[245] Backus may not rely for his opinions or refer in evidence to the following:

(i) the bed sheet seized from a custodial facility in which Floyd Francois was an inmate;

(ii) the documents seized from a cell occupied by Floyd Francois;

(iii) the criminal antecedents of any other suspected M.O.B. Klick member;

(iv) the criminal antecedents of either accused, or any act or incident underlying any entry on the record of either accused;

(v) the letter purporting to be from Francois to Williams; or

(vi) the letter purporting to be from Francois to Richard Steele.

For greater certainty, the criminal records of the accused are not admissible at the instance of the Crown, unless the defence should make that topic relevant respecting either accused.

What Backus May State as Fact

[246] In a general non-case specific way, Backus may state as fact what he knows about the existence of street gangs generally, including the Bloods and the Crips as a phenomenon, and may state as fact that such gangs actually exist. He may not make statements of fact in relation to the gangs in question in this case; rather, Backus may state that the M.O.B. Klick and the EWC exist, but only as an opinion.

[247] Backus may rely on hearsay, provided he indicates that his source of knowledge is a hearsay source, to state as fact the identity of any person whose identity he has come to know by virtue of his investigation into this matter (including information he gathered from consulting police databases). However, to the extent of any dispute as to the identity of anyone to whom Backus refers, where the identity of the person is not proven by other admissible evidence, Backus’ identification of that person, and any opinion relying on it, will be subject to an Abbey (1982 25 (SCC), [1982] 2 S.C.R. 24) instruction as to the weight to be given to that aspect of his evidence.

Opinions Backus May Offer

[248] Backus may state, as an opinion, that gangs known as M.O.B. Klick and the Vaughan Road Bloods exist, and may opine on their interrelation, if any. He may also state, as an opinion, that a gang known as the Eglinton West Crips exists.

[249] In terms of the language used by street gangs, Backus may opine on the meaning of words and/or phrases where the meaning of those words or phrases is not likely to be apparent to the members of the jury. For greater certainty, with the exception of the letter purporting to be written by Francois to Richard Steele, Backus may express opinions on the meaning of any of the aforementioned documents, including the letters seized in various custodial facilities and the hand writings found in an apartment situate at 481 Vaughan Rd. said to have been occupied by both accused before their arrest on this charge.

[250] The particular words or expressions with which the jury will require Backus’ assistance have not been identified individually. For that reason, I expect the Crown to use appropriate restraint in asking the witness to explain words or phrases, as the case may be, in order to leave the decision as to the meaning of the various writings so far as is reasonably possible to the trier of fact. Equally, I expect defence counsel to exercise appropriate restraint in objecting to Crown counsel asking the witness to opine in this behalf. I expect, in other words, all counsel to act responsibly in this behalf. Furthermore, and more importantly, I expect that so far as possible counsel will vet problematic words or phrases with the court in a timely fashion, in the absence of the jury, in order to minimize disruption of the trial when the jury is present.

[251] Det. Backus may also opine on the significance of the videos in terms of conveying gang messaging, including, but not limited to, expressing opinions on hand signs displayed by persons in the videos and the significance of the fact that actual street signs found within the gang’s turf are depicted in the videos.

Opinions Detective Backus May Not Offer

[252] Det. Backus may not opine that anyone, including the two accused, is a member of M.O.B. Klick or that the deceased was a member of the Eglinton West Crips.

[253] In lieu of expressing such opinions in relation to the accused or the deceased, in keeping with my ruling in Gager, Backus may comment on the various factors he examined that are indicative, or characteristic, of someone being a member of a gang, but he may not say that they are indicative or characteristic of the person belonging specifically to M.O.B. Klick or the Vaughan Road Bloods.

[254] Backus may not offer any opinion as to the similarity of voices heard on the various audio portions of the videos that are said to be the voice of Williams. The Crown may, however, introduce through Backus the composite recording he created, in which tracks from the various videos of what is thought to be Williams’ voice were rerecorded onto one recording. Backus may comment on the composite recording only to the extent necessary to explain how it came into existence. The Crown may play this for the jury for the sole purpose of having the jury compare the voices to make its own decision, unassisted by Backus’ opinion.

Summary

[255] In summary, I wish to reiterate certain cautions that I gave in Gager.

[256] First, for greater certainty, subject to what I will say below about defence counsel opening up areas this ruling presently forecloses to the Crown, the restrictions I have imposed on the evidence admissible at the instance of the Crown and on what Det. Backus may say do not apply to the defence.

[257] Second, I have attempted to deal with what I understand to be all aspects of Det. Backus’ proposed evidence that are in contention. To the extent that I may have overlooked any issue upon which the Crown seeks to have Det. Backus opine that may be contentious, the parties are encouraged to raise it at the earliest opportunity in the absence of the jury.

[258] Third, any subsequent admissions by the defence may alter the balance between probative value and prejudicial effect respecting the evidence I have indicated is admissible and/or the opinions Backus may give. Any such development may, in turn, require a reassessment of one or more aspects of this ruling. As I explained at some length on January 31, 2013, when I gave an oral overview of my decision on this application, this ruling is provisional and subject to being revisited if there is a significant change in circumstances. See Gager No. 3, at paras. 80 to 103.

[259] Fourth, 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. In that regard, I repeat McCombs J.’s comment in the re-trial of Abbey: “If [any counsel] finds himself [or herself] in doubt about whether a particular question or questions might trigger the admissibility of evidence which I have found to be inadmissible, he [or she] 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, at para. 46.

Clark J.

Released: February 19, 2013

COURT FILE NO.: 12-40000008-0000

DATE: 20130219

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Applicant

– and –

LAVARE WILLIAMS and CHAEL MILLS

Respondents

application #7: EXPERT OPINION

reasons for decision

Clark J.

Released: February 19, 2013

[^1]: Exhibit 29 on this application. [^2]: A term that, according to Det. Backus, is meant to refer to all Blood-affiliated gangs. [^3]: These submissions were not filed in accordance with the Criminal Proceedings Rules, such that the court did not have the benefit of these submissions at the time of the oral argument on Phase I. [^4]: Indeed, I do not understand how counsel can assert, on the one hand, that untutored jury members (who, beyond being vaguely aware of their existence, will presumably have no knowledge of either the Crips or the Bloods) know enough about street gangs that there is no need for expert evidence in this case, while at the same time asserting that because Backus’ vast experience respecting gangs is restricted to the Crips, he does not know enough about the Bloods to warrant receiving his evidence on this topic. The submissions are, quite simply, inconsistent. [^5]: The officer reported that a screen shot from one of the videos showed a man holding a handgun, whereas upon closer examination it appears to be a knife. In fairness to the officer, the image in question is not particularly clear. The other mistake was that Backus misstated the contents of a Field Information Report prepared by a police officer who attended the scene of a dispute between the occupants of two motor vehicles. In his report, Backus stated that the accused Williams was shouting, when in fact it was another person in the car in which Williams was a passenger who was shouting. [^6]: Documents recording information learned by an officer on patrol after investigating a person with whom the officer came into contact. [^7]: Exhibit 13 on this application. [^8]: One of the seized letters, namely, the letter Detective Backus refers to in his second report as Letter 8, is signed by Francois in his real name and addressed to Lavare Williams. The Crown does not seek to adduce that letter. [^9]: What was characterized as Letter 6 in Detective Backus’ second report purports to be signed by one Dwayne Nelson, whereas the Crown alleges the author is, in fact, Floyd Francois. A letter referred to as Letter 7 in the same report purports to be signed by one Christian Rose to Mills, but, again, the Crown alleges the author is Francois. [^10]: Identified as Letters 5 and 8 in Detective Backus’ Report dated October 2012. [^11]: Identified as Letter 6 in Detective Backus’ Report dated October 2012. [^12]: Identified as Letter 7 in Detective Backus’ Report dated October 2012. [^13]: Respecting that letter, while there is no real difference in principle between it and the other letters in terms of the mindset of the author being some circumstantial evidence of the existence of the gang, the Crown originally alleged in its factum that Mills wrote the letter to Francois, whereas in later argument the Crown asserted that it was written by Francois to Richard Steele. In light of the defence having been taken somewhat by surprise by the change in the Crown’s allegation and not having had a proper chance to prepare a response, I decided to exclude the letter. [^14]: Beginning at line 8 on the first page with the words “But back...” and including everything from that point forward to the beginning of the Crown’s proposed redaction. [^15]: I say that mindful of the fact that Mills has been found guilty of misconduct, to wit: fighting, at the jail. Having considered that information in Mills’ application to be permitted to sit at counsel table, I note there was nothing in the materials to suggest that any inmate with whom Mills had fought ever sustained any serious injury. [^16]: Beginning with the words “Ye Ye you already know fam.” [^17]: On the other hand, in the same letter, the author twice uses the word “already” and spells it correctly each time. That is also true of the second letter purportedly authored by Stephens where, in the second sentence, the author spells the word “already” correctly. This disparity is, however, a matter for the jury. [^18]: Beginning with the words “What it B like fam fam.” [^19]: See, for example, California Evidence Code, s. 352, which provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” [^20]: Although the authorities I consulted were principally from California, I also referred to cases from other American jurisdictions; many of these authorities were “not certified for publication” or “unpublished”. Rule 8.1115 of the California Rules of Court, and equivalent rules in certain other jurisdictions, prohibit citing unpublished decisions. Albeit the rules of court are not binding outside the particular jurisdiction, I prefer, as a matter of judicial comity, to respect them. That said, as I understand it, the prohibition applies only to citing such cases as precedent, but, provided one stipulates that a decision is unpublished, such a decision may be cited as persuasive, though not binding, authority. [^21]: California Penal Code, s. 186.22(f). [^22]: The appellant also contended that the officer’s comments on the lyrics were improperly admitted as the opinion evidence of a non-expert. The Court of appeal held that, while the ground was correct, inasmuch as the officer had “local insight and experience”, her evidence concerning “gangs in the locality and so forth was factual evidence … which was entirely admissible as coming from a police officer with local experience.” The court went on to opine that had the proper foundation been laid, “[i]t may have been … that that local experience would have been sufficient for her to have given evidence as a local expert.” [^23]: The admissibility of bad character evidence is governed by the Criminal Justice Act 2003, s. 101: 101. Defendant’s bad character (1) In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if— (a) all parties to the proceedings agree to the evidence being admissible, (b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it, (c) it is important explanatory evidence, (d) it is relevant to an important matter in issue between the defendant and the prosecution, (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, (f) it is evidence to correct a false impression given by the defendant, or (g) the defendant has made an attack on another person’s character. [^24]: Section 101(3) of the Criminal Justice Act 2003 provides: “The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” [^25]: This is the same video as in Carrillo v. Gonzalez, described at paragraph 144, in which the United States District Court was reviewing the Court of Appeal of California’s decision in People v. Carrillo. [^26]: One of two mistakes earlier mentioned that defence counsel rely upon to argue that Backus was too careless to be qualified as an expert. [^27]: Mr. Rodocker argues that these lyrics are inadmissible because there is no evidence that Flagiello was murdered by a member of the EWC, in the absence of which the lyrics have no probative value and can only be prejudicial. I disagree. For purposes of this analysis, what is important is not who in fact killed Flagiello, but, rather, the fact that members of M.O.B. Klick thought that EWC was responsible for his death. Whether their suspicions were correct is irrelevant. What matters is that they had such suspicions and, thus, the motive to kill a member of EWC. That can be proven by the lyrics themselves and does not depend on proof of who actually killed Flagiello. [^28]: Inasmuch as Crown counsel broached this question as something of an afterthought on February 12, 2013, after I had given my preliminary ruling, defence counsel were taken somewhat by surprise by Ms. Misener’s request. That being the case, I indicated to defence counsel that I would be content to stand the matter down overnight in order to give them an opportunity to prepare a response. Both counsel indicated that they did not require any time to prepare, but were, rather, content to argue the matter then and there.