R. v. Williams, 2013 ONSC 3100
CITATION: R. v. Williams, 2013 ONSC 3100
COURT FILE NO.: 12-40000008-0000
DATE: 20130527
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
LAVARE WILLIAMS
Respondent
– and –
CHAEL MILLS
Respondent
Patrick Clement and Mary Misener, for the Crown
R. Roots Gadhia, for the Accused, Lavare Williams
Talman Rodocker, for the Accused, Chael Mills
HEARD: March 4 & 7, 2013
PRE-TRIAL APPLICATION #7
ADDENDUM TO REASONS FOR DECISION
Clark J.:
INTRODUCTION
[1] On May 3, 2010, Mitchell Celise was shot to death on a Toronto street. He is alleged to have been a member of a street gang known as the Eglinton West Crips (“EWC”). The accused, said to be members of a rival Bloods-affiliated gang known as M.O.B. Klick, are charged with his murder. Their alleged membership in that gang is said to underlie the motive for the murder.
[2] On February 19, 2013, I released written reasons respecting a pre-trial application in this matter (R. v. Williams, 2013 ONSC 1076, [2013] O.J. No. 759). In those reasons, I allowed the Crown to call Det. Douglas Backus of the Toronto Police Service as an expert witness on the subject of street gangs. I also identified certain evidence that Backus could rely upon to support his opinions. What follows is an addendum to those reasons concerning three issues that arose during the trial that potentially affected my initial ruling.
[3] On March 4, 2013, Crown counsel raised two issues with the court concerning the initial ruling. After hearing argument from the parties, I gave a brief oral ruling. I indicated at that time that I would amplify those remarks with further reasons as soon as time permitted; these are those reasons.
[4] On March 7, 2013, on its motion, the court raised a further issue concerning the possible redaction or removal of certain documents, attributed by the Crown to the accused men, that I had earlier ruled admissible. After hearing further submissions, I held that the documents would remain admissible. Those reasons also follow.
ISSUES
[5] The first issue concerns my ruling that, as an adjunct to Backus’ evidence, the Crown would be permitted to adduce a number of videos downloaded from YouTube. The videos allegedly show members of M.O.B. Klick consorting together in a fashion that suggests both that M.O.B. Klick is a street gang and, further, that its members have an animus toward Crips generally and toward members of the EWC in particular. One of those videos is entitled “Bloodz”. Recognizing that the court had misapprehended one aspect of Bloodz and concerned that the misapprehension might have been critical to the ruling that the video was admissible, the Crown sought clarification of the earlier ruling in that regard.
[6] In my earlier reasons, I stated that the video, Bloodz, chronicled a wake, of sorts, for a recently murdered gang member, one Robert Flagiello, also known as “Bubba”. Ms. Misener advised that, while the video does depict a wake, it was held not to mourn Mr. Flagiello, but, rather, two other gang members who had died, referred to in the video as “Bejuan” and “Draxx”. Neither opposing counsel took issue with the correctness of Ms. Misener’s statement and, on reviewing the video, I discovered that she is correct.
[7] The second issue concerns my earlier ruling that the Crown could adduce through Det. Backus a composite audio recording he made, comprised of short excerpts from four YouTube videos. Backus’ object in making the composite was to better facilitate comparison by the jury of the voices on the video recordings in evidence with a view to identifying a particular voice on one video in which the speaker, alleged by the Crown to be Lavare Williams, cannot be seen at the time the words in question are spoken. The Crown sought to clarify whether the audio recording was still admissible in light of the fact that one of the excerpts on the original composite audio recording comes from a YouTube video that the Crown initially proffered for admission, but later withdrew from its application.
[8] The third issue concerns whether certain material attributed to the accused, now comprising Exhibits 32 and 70 in the trial, needed to be further redacted beyond the degree stipulated in my initial ruling.
POSITION OF THE CROWN
[9] Concerning my misapprehension of the evidence, as noted, the Crown brought the matter to my attention in order to seek the court’s direction concerning whether the video was still admissible on the basis of the evidence properly apprehended. Ms. Misener contends that the video should still be admissible in all the circumstances.
[10] As for the audio recording, Ms. Misener concedes that the portion of the recording from the one video, on which no ruling was obtained, should be redacted from the composite recording. She indicated that she had already made a new recording containing only the tracks from the three videos that I previously ruled admissible.
[11] Ms. Misener went on indicate that, on the new recording, she had included the corresponding visual portions of the respective videos along with the audio tracks in question and, further, that she sought to display the visual portion of the video simultaneously with the audio.
[12] As for the third issue, the Crown contended that all the materials presently admitted were properly admitted and ought to remain so, but conceded that certain materials might be removed from the current exhibits if agreement could be reached between the prosecution and the defence concerning authorship of some or all of the documents.
POSITION OF CHAEL MILLS
[13] As for the court’s misapprehension of the evidence, on behalf of Mr. Mills, Mr. Rodocker indicated that he was opposed to the Crown being able to amplify the record and further asserted that, since the court had already ruled, there was nothing that could now be done to correct the court’s original misapprehension. Despite the misapprehension, and Mr. Rodocker’s assertion that the court cannot correct its earlier mistake, Mr. Rodocker does not assert that the video has become inadmissible.
[14] As for the audio recording, Mr. Rodocker initially opposed its introduction. That said, although he does not resile from his initial position, faced with my ruling, Mr. Rodocker was content that the new, three-track audio be played for the jury. He opposed, however, any visual component of the videos in question accompanying the audio.
[15] As for the documents comprising Exhibits 32 and 70, despite the matter being reopened, Mr. Rodocker did not make any document-specific submissions, but, rather, simply reiterated his earlier position that the entirety of the material ought not to go before the jury, because it is too prejudicial.
POSITION OF LAVARE WILLIAMS
[16] As for the court’s misapprehension of the video, on behalf of Mr. Williams, Ms. Gadhia adopted Mr. Rodocker’s position, but went further to assert that in the absence of the misapprehended fact – that the wake was held to honour Flagiello – there was no longer a basis upon which the video could be considered relevant and it should be excluded.
[17] As for the audio recording, although she initially opposed its introduction, like Mr. Rodocker, faced with my initial ruling, Ms. Gadhia asserted that the audio portion of the video withdrawn by the Crown ought not to form part of the exhibit and the audio portions that were to be put before the jury ought not to be accompanied by their corresponding visual portions.
[18] As for the issue of what should be redacted from the documents, Ms. Gadhia conceded that, in light of the court’s earlier ruling concerning the probative value of this evidence (with which ruling she expressly disagrees), some of the documents are clearly relevant. Ms. Gadhia went on, however, to make certain specific submissions concerning the documents found under Tab “B” of Exhibit 70, which are the only ones the Crown attributes to her client.[^1] She argues that, even allowing for their probative value, certain passages of the documents are too prejudicial to be admitted.
DISCUSSION
1. Voice Identification Presentation
[19] Because counsel are, for the most part, ad idem on this issue, I will deal first with the composite audio. I agree that the audio clip from the video that, in the final analysis, the Crown did not seek to have admitted ought not to be presented to the jury.
[20] As for what will be presented to the jury, I agree with defence counsel that there ought not to be any visual component accompanying the audio. To my mind, it would be overly suggestive to the jury to present them with visual imagery of a known speaker of some of the audio at the same time as they are being asked to use their auditory abilities to discern whether the known speaker on the two tracks is the same speaker as on the questioned track, respecting which, of course, the speaker cannot be seen. Accordingly, I will allow only what was first contemplated, namely, a purely auditory presentation, but with only the three audio tracks, one from each of the videos that were admitted.
2. Misapprehension of the Bloodz Video
[21] Turning to the question of misapprehended evidence, Mr. Rodocker submits that the Crown ought not to be permitted, at this late stage, to amplify the record, and certainly not by way of oral submissions. With respect, the complaint is unfounded. Quite clearly, that is not what Ms. Misener was attempting to do. Rather, she was simply bringing to my attention the fact that I had made a factual error in my analysis of the material already before the court on the application. The facts Ms. Misener mentioned (namely, that it was not Flagiello, but, rather, Draxx and Bejuan who were being honoured) already form part of the record. That said, it is open to counsel at any time to advise the court that it has made a factual error and to endeavour to correct the court’s misapprehension of the evidence.
[22] It is Mr. Rodocker’s assertion, however, that the court is effectively functus officio in this regard. Because the court made its original ruling on the basis of a particular understanding of the evidence, Mr. Rodocker argues, the video must now be admitted on that basis, even though the court now knows that factual underpinning to be incorrect. Quite clearly, however, that is not the law. In R. v. I.C., 2010 ONSC 32, 249 C.C.C. (3d) 510, at paragraphs 151 to 163, I discussed some of the many authorities standing for the proposition that a court may at any time reopen a voir dire and reconsider an issue previously decided. In a similar vein, in R. v. Gager, 2012 ONSC 2697, [2012] O.J. No. 2085, at paragraphs 81 to 93, I discussed a number of authorities that make clear that a court can reconsider a ruling where there has been a significant change of circumstances. For the sake of brevity, I will not reproduce those discussions here, but, to the extent they are applicable, I adopt and apply in this matter the principles discussed in those cases.
[23] It is axiomatic that only properly admissible evidence should be put before the jury. It is equally obvious that evidence cannot be said to be properly admitted if it depends for its admissibility upon a mistaken understanding of the evidence said to support admission. Accordingly, it is in the interests of justice that I reconsider the admissibility of the video on the basis of the facts as I now correctly apprehend them. That brings me directly to Ms. Gadhia’s assertion that the video has now ceased to be relevant, and should no longer be admissible, because the wake was held not for Flagiello, but, rather, for other fallen gang members. For the following reasons, I disagree.
[24] First, the notion that Celise was shot to avenge the murder of Flagiello is only one aspect of the motive alleged. Speaking generally, Det. Backus will testify concerning territoriality, which he says is an ethos cherished, and often jealously defended, by street gangs. He will also impart to the jury some of the potential repercussions, which can include murder, when gang members apprehend that a member of a rival gang has intruded into their territory. Further, with specific reference to this case, it is alleged that there is animosity between M.O.B. Klick, said to be affiliated with the Bloods Nation, and the EWC, said to be affiliated with the Crips Nation. In that behalf, there are a number of expressions of hostility in the Bloodz video toward the Crips, such as “rest in piss” and “none of that blue shit around here”. The latter expression I take to be a reference to the well known proclivity of members of the Crips to wear the colour blue.
[25] As noted above, Mr. Celise is said to have belonged to the EWC. He was dressed in blue and walking through an area said to be M.O.B. Klick territory when he was killed. The Crown’s theory is that M.O.B. Klick is affiliated with the Bloods, and the accused were members of M.O.B. Klick. An eyewitness, who was accompanying the victim at the time of the shooting, indicated that, when the man who ultimately shot Mr. Celise initially confronted them, he took issue with the fact that Celise was dressed in blue in a what he referred to as a “red” area. Against that backdrop, it is open to the Crown to endeavour to convince the jury that, quite apart from a specific desire to avenge the death of Flagiello, animosity on the part of M.O.B. Klick toward Crips generally, and the EWC more particularly, would suffice as a motive for members of M.O.B. Klick to kill someone thought to be a member of the EWC, particularly if it were perceived that the EWC member was in a M.O.B. Klick area.
[26] Second, this evidence does not depend for its relevance solely on the prosecution’s theory as to the motive. The charge of first degree murder against Mr. Mills relies on s. 231(6.1) of the Criminal Code. There is no other basis in this case upon which the Crown can establish first degree murder. Therefore, the Crown is obliged to prove, as an essential element of the offence charged, that Mr. Mills committed the murder for the benefit of, at the direction of, or in association with a criminal organization. That said, the video is relevant and, in my view, highly probative on the following issues:
(a) whether M.O.B. Klick exists;
(b) if so, whether it is a street gang (and, as such, a criminal organization);
(c) whether it is associated with the Bloods Nation; and
(d) whether Mills is a member of M.O.B. Klick.
[27] It would be open to the jury to draw those inferences based, inter alia, on the following aspects of the video:
(a) the vast majority of people depicted in the gang are wearing one or more red garments;
(b) a large number of them can be seen making Bloods’ hand signs at various points;
(c) the name “M.O.B. Klick” is mentioned;
(d) the video is replete with examples of persons, including Mr. Mills, referring to themselves as “gangstas”; and
(e) the words “Bang, bang, Blood gang” can be heard at one point.
[28] In terms of Mr. Mills’ participation in the video, at one point he utters the words “B’s up”, which Det. Backus will say reflects a sentiment of Bloods supremacy. At another point, Mr. Mills can be heard to say the words “Cokewood Ave.” I take this to be a play on words, combining a reference to the area of Oakwood Ave. and Vaughan Rd., in which the gang is said to exist, and the sale of cocaine, which, according to Det. Backus, is one of the principal occupations of street gangs. At various points, Mr. Mills can be seen making Bloods’ hand signs. Against that factual matrix, it is, with respect, idle to suggest that the video has lost its probative value simply because, as opposed to mourning Flagiello, the persons depicted are mourning two other persons.
[29] The video can be argued to be less probative than it would have been if the wake had been for Flagiello for two reasons. First, there is no evidence before the court as to when the other alleged M.O.B. Klick members died, as opposed to the evidence before the court that Flagiello was killed only a few months before the death of Mr. Celise. Second, there is no evidence that members of M.O.B. Klick thought that Draxx and Bejuan were killed by members of the EWC. That said, despite some diminution in the probative value of the video, that value remains high. In my view, provided the jury is properly instructed as to the limited use of this evidence, its probative value still far and away exceeds any prejudice it might entail.
3. Content of Exhibits 32 and 70
[30] I turn now to the question of what, if anything, is to be redacted from Exhibits 32 and 70. Exhibit 32 comprises most of the material seized from Apt. 604, 481 Vaughan Rd., alleged to have been the residence of both accused at the time of the homicide, upon the execution of a search warrant on May 7, 2010. The only documents missing are those now found in Exhibit 70; these were removed from what was seized in the apartment for submission to the Centre of Forensic Sciences for expert examination.
(i) General Remarks
[31] When this application was initially heard, the main questions before the court on the application were, as noted above, whether Det. Backus could testify as an expert and, if so, what evidence would be admissible at the instance of the Crown to support his opinions. The submissions in that latter behalf dwelt, in the main, on the YouTube videos. Very little attention was paid by any counsel to the content of the material seized upon the execution of the search warrant at 481 Vaughan Rd.; rather, the main thrust of the defence argument was that the material was irrelevant because there was insufficient evidence connecting it to the accused men. For reasons set out in my initial ruling, I held that there was a sufficient body of circumstantial evidence from which the jury could, if it saw fit, find that each of the accused had written the documents attributed to him. Virtually nothing was said, however, about the nature of the content of the seized material. That said, having looked at the material again, I asked counsel to address their minds to the content of the documents before it would be considered by the jury in its deliberations.[^2]
[32] Before dealing with the substance of the writings, I wish to deal briefly with the fact that there is no evidence as to when the writings in question were created and, thus, no temporal nexus to the crime with which the accused stand charged.
[33] In R. v. Terry, 1996 CanLII 199 (SCC), [1996] 2 S.C.R. 207, the Supreme Court of Canada held that a poem in the appellant’s handwriting found in his room during the execution of a search warrant was admissible. Although the court specifically noted that the poem was undated and unsigned, these facts did not preclude the trial court from finding that the poem’s probative value outweighed its prejudicial effect.
[34] Similarly, in R. v. Eng, 1999 BCCA 425, 138 C.C.C. (3d) 188, the appellant appealed his conviction for arson on the basis that a poem entitled “The Arsonist”, found by a jail guard in the appellant’s cell, ought not to have been admitted. As in Terry, there was no direct evidence as to who had authored the poem or when. The guard testified that the appellant told him that another inmate had written the poem for him. The Court of Appeal for British Columbia held that “there was a nexus between the poem in Mr. Eng’s possession and the charges in the Indictment” such that the two seized copies of the poem were properly admitted.
[35] In Rodriguez v. Lewis, 2013 U.S. Dist. LEXIS 19012, the petitioner was convicted of attempted murder. The motive alleged was ongoing rivalry between street gangs. The petitioner argued that a letter he allegedly wrote to a fellow gang member in custody, approximately seven months before the date of charged offences, and other writings found in his home, approximately a year before, that associated him with the gang, should be excluded because they were too remote in time to be probative. The District Court disagreed, adopting, instead, the California Court of Appeal’s holding that the age of the documents permitted an inference that the petitioner was a longstanding member of the gang, who was well-versed in its subculture and who adhered to its tenets during the relevant time frame.
[36] Based on the foregoing authorities, I am satisfied that the lack of direct evidence as to when the documents were created, or by whom, goes to weight and not admissibility.
(ii) Substance of the Documents
[37] Turning to the substance of the writings in question, counsel for the accused object to the admission of the documents on the basis that, assuming the jury attributes one or more of them to the accused it is then considering, they demonstrate bad character on the part of the accused and, as such, will invite propensity reasoning.
[38] In that vein, I note that 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 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 63. Having made that observation, however, Cory J. then set out three exceptions to the general prohibition, of which only the first is relevant to this discussion:
(1) where the evidence is relevant to an issue in the case: see, for example, Morris, [1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190] supra, at p. 202; B. (F.F.), [1993 CanLII 167 (SCC), [1993] 1 S.C.R. 697] supra, at p. 731. See also R. v. Lepage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654, at pp. 672-74; R. v. Hinchey, 1996 CanLII 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. stated:
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 CanLII 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 CanLII 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.), supra, at p. 731.
[40] Dealing with documents as a type of bad character evidence, I appreciate that, just like actual prior acts, the writings of an accused, or documents found in his possession, can show bad character. However, numerous cases have held such documents to be sufficiently probative of an issue at trial to be properly admissible notwithstanding the evidence demonstrated bad character: R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190; R. v. Malone (1984), 1984 CanLII 3480 (ON CA), 11 C.C.C. (3d) 34 (Ont. C.A.), leave to appeal ref’d, [1984] S.C.C.A. No. 272; R. v. Caccamo, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786; R. v. Ma (1978), 1978 CanLII 2438 (ON CA), 44 C.C.C. (2d) 511 (Ont. C.A.); R. v. Holtam, 2002 BCCA 339, 165 C.C.C. (3d) 502.
[41] In Malone, the prosecution introduced a number of “jottings” attributed to the appellant that made reference to homicide, killing, death, destruction and mass murder. At p. 43, speaking for the court, Martin J.A. held:
As Dean Wigmore has pointed out, the word "motive" in the correct sense refers to an emotion or inner feeling such as hate or greed which is likely to lead to the doing of an act. The word "motive" is also used, however, to refer to external events, for example, a previous quarrel, which is likely to excite the relevant feeling. Motive in the first sense is always relevant to prove the ensuing appropriate action from the existence of the internal feelings or emotion: Wigmore on Evidence, 3rd ed. (1940), vol. 1, pp. 557. The relevant emotion may be evidenced by:
(a) conduct or utterances expressing the emotion;
(b) external circumstances which have probative value to show the probable excitement of the relevant emotion;
(c) by its prior or subsequent existence (if sufficiently proximate): see R. v. Jackson (1980), 1980 CanLII 2945 (ON CA), 57 C.C.C. (2d) 154 at p. 167 (Ont. C.A.).
In our view, it was open to the jury to infer from the writings that the appellant entertained strong generalized feelings of hostility and homicidal urges that were likely to lead to the doing of the act charged. In the particular circumstances of this case, where there was no apparent reason for the stabbing of Mr. Hesson by a complete stranger, the evidence of the writings was relevant and admissible on the issue of motive in its primary sense, notwithstanding it might also tend to prove disposition. We would not wish, however, to be taken as holding that evidence of generalized hostility would be admissible, if, for example, an accused were charged with murdering his wife and the alleged motive was his desire to be free to marry another woman. It is the absence of any rational cause for the stabbing which makes the evidence of the writings admissible in this case on the issue of motive.
The trial judge, therefore, did not err in admitting the evidence of the writings. [Emphasis in the original.]
[42] In R. v. McIntosh (1999), 1999 CanLII 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.), the appellant appealed from his conviction for murder. At trial, the Crown introduced a collection of poetry found in a shoebox in his bedroom entitled “Poetry of the Damned”; several versions of a poem entitled “Do You”, which spoke at length of death; newspaper articles about murders; and commercially-produced posters of a particularly gruesome nature. Having ordered a new trial on other grounds, the court did not opine on the admissibility of these items of evidence, stating, instead, at paragraph 75:
The relevance of the story and the poem will turn on whether the appellant's confession is linked to them, with particular attention to the application of this court's decisions in R. v. Malone (1984), 1984 CanLII 3480 (ON CA), 11 C.C.C. (3d) 34. The admission of this evidence also requires a delicate balancing of probative value against prejudicial effect.
This passage suggests to me that, contrary to the submissions of defence counsel in the case at bar, even though it is suggestive of a fascination with violence on the part of an accused, evidence will be admissible provided it has sufficient probative value in relation to an issue the jury must decide.
[43] In R. v. Laskey, [1995] O.J. No. 4591 (Gen. Div.), the court allowed the Crown to introduce several notes found in the bedroom of the accused’s apartment. The notes contained handwritten entries describing sexual experiences with young girls. The encounters, which according to the notes spanned a period of more than a decade, almost invariably involved acts of anal intercourse. The accused was charged with sexual offences against two young girls. While acknowledging that the evidence spoke to disposition, Speyer J. held, at paragraph 34, that the writings were “significantly relevant to the Crown’s case”, particularly with respect to motive and the accused’s state of mind, such that the probative value of the evidence outweighed its prejudicial effect, which could, in his view, “be minimized by advising the jury of the uses that they may or may not use [sic] with respect to these writings.”
[44] In R. v. Mousseau, 2002 ABQB 248, [2002] A.J. No. 305, Moen J. held that a handwritten story entitled “The Village Rapist”, found in the accused’s residence, could be adduced by the Crown in a prosecution for sexual assault.
[45] In R. v. Lloyd-Owen, [2005] O.J. No. 3211 (S.C.J.), the Crown sought to admit a selection of writings and drawings by the accused found in three notebooks seized from his apartment. The first book was dated from 1996 to 1998, when the accused was a teenager, and contained poems that referred to killing. The second book was dated September 2000 to October 2000, and referred to the end of life. The notes in the third book had a close nexus in time and events to the date of the killing in January 2003. There was a drawing of a body with a strong likeness to the condition of the deceased’s mutilated body. The writings from the first two books were not admitted as they had no nexus in time to the crime charged and little or no information regarding deliberating or planning an actual murder. Excerpts from the final book were admitted as being linked in time and specific subject matter to issues of intent and planning and deliberation of murder. At paragraph 24, Howden J. stated:
Propensity reasoning in itself is not invalid, as Morris illustrates. According to Handy and its companion case R. v. Shearing 2002 SCC 58, [2002] 3 S.C.R. 33, there must be a persuasive degree of connection between the writings and the issues of intent, identity and planning/deliberation of murder to be capable of raising the double inference contended by the prosecution. Thinking of retaliation or empowerment by murder of another is one thing, a darkly abstract exercise borne of a person's perceptions and experience, rational and irrational; unless the evidence indicates a nexus in time and specific indicia relating to identity, intent and/or deliberating/planning the crime in question, including its attributes of body designs, cutting and scarring, excision of body parts, and message to others, the cumulative effect would be simply to colour or denigrate the accused's character.
[46] Canadian cases involving the admissibility of written material consisting of rap music lyrics and/or references to street gangs are few.
[47] In R. v. Guimond and Lamirande, [1999] M.J. No. 213 (Q.B.), aff’d, 2002 MBCA 41, 164 C.C.C. (3d) 299, leave to appeal to S.C.C. ref’d, [2002] S.C.C.A. No. 203, jail authorities seized documents from the accused’s cell that contained language commonly used by street gang members and references to a particular gang. Notwithstanding that the evidence tended to show the accused to be a person of bad character, Oliphant A.C.J. allowed the Crown to adduce the writings to show that the accused was a member of a street gang. The court found that the writings provided background, made the narrative clearer, were necessary for the development of the case for the Crown and provided context for what had occurred.
[48] In R. v. Skeete, 2012 ONSC 1643, [2012] O.J. No. 2844, Nordheimer J. allowed the prosecution to adduce certain rap lyrics that referred to what is sometimes called the “code of silence”, finding the evidence relevant to the Crown’s theory that the deceased was killed because he cooperated with the police on an earlier occasion.
[49] In R. v. Leslie, [2005] O.J. No. 2539 (S.C.J.), a murder trial, the prosecution sought to introduce the lyrics of a rap song. McCombs J. held that a portion of the song was admissible because the lyric in question referred to a type of firearm consistent with the weapon that had been used to kill the deceased. In that case, the reference to the weapon was the only piece of relevant evidence in the rap song and the rest of the lyrics were redacted.
[50] Given the paucity of Canadian cases concerning written material related to street gangs, as I did in the original ruling respecting the admissibility of the YouTube videos, I have referred to a number of American authorities on point. In that behalf, I adopt the same caveats as in the earlier ruling.[^3]
[51] In People v. Cerda, 2008 Cal. App. Unpub. LEXIS 7219 (C.A.), the appellant was convicted of murder, attempted murder and being an active participant in a street gang. The alleged motive for the crimes was to “earn stripes” and to show the accused’s dominance, both within his gang and over a rival gang. Gang writings and a notebook with the accused’s name on it containing gang writings were found in a backpack in a bedroom in the accused’s house. The writings included references to violence, gang language, threats to kill and derogatory terms for a rival gang. The Court of Appeal rejected the appellant’s argument that the evidence was irrelevant. Instead, the court found that the evidence was highly probative that the accused was an active participant of a criminal gang and that the murder was committed in furtherance of the gang’s activities and, as such, was relevant to motive. The court held that the evidence was particularly probative because, coming from the accused himself, it showed his connection to the gang.
[52] In People v. Olguin et al., 31 Cal. App. 4th 1355 (C.A.), handwritten rap lyrics, which included references to membership in a street gang and violence, were found in the home of one of the appellants three weeks after the murder of which the appellants had been convicted. Some of the lyrics referred to the composer as “Vamp”, a nickname by which that appellant was known. The alleged motive for the murder was gang rivalry and retaliation in response to the accused’s gang graffiti being crossed out by a rival gang member. The Court of Appeal found that the trial judge properly admitted the lyrics, as they demonstrated the accused’s gang membership, his loyalty to the gang, his familiarity with gang culture, and, inferentially, his motive and intent on the day of the shooting.
[53] In People v. Lujan, 2010 Cal. App. Unpub. LEXIS 9373 (C.A.), four letters were found in the appellant’s home when he was arrested. These had been sent to him from jail by two members of the CYS gang. The letters discussed gang matters. The letters pre-dated the shooting at issue in the trial. A police expert testified that the letters would not have been sent to someone who was not actively involved in the gang. At trial, the prosecutor alleged the shooting arose out of a conflict between two neighbouring gangs, CYS and Puente 13. The Court of Appeal upheld the admission of the letters for the purpose of proving the appellant’s active involvement in the CYS gang, which was relevant to his intent in committing the offence.
[54] In People v. Flores et al., 2010 Cal. App. Unpub. LEXIS 5660 (C.A.), the Court of Appeal upheld the admission, with certain limiting instructions, of four letters written by one appellant, while she was in custody, to her co-accused. In the letters, she identified herself as a gang member and indicated her willingness to use violence against members of rival gangs. The court held that the letters were clearly relevant, as they linked the accused to both the gang – and thus were admissible as circumstantial evidence of her intent to promote, and her knowledge and participation in, the gang – and because they linked her to her co-accused. The letters had a tendency to prove she was an active participant in the shooting, which was alleged to have been motivated by gang rivalries.
[55] In People v. Zepeda, 167 Cal. App. 4th 25 (C.A.), audio recordings of two gangster rap songs penned by the appellant, along with transcripts of the lyrics, were admitted at trial. These were in addition to other gang evidence, including the appellant’s writings, which included gang symbols, expressed hatred toward a rival gang and mentioned killing. The prosecution alleged that the motive for the shooting of two individuals was gang rivalry. The appellant argued that the admission of the lyrics was cumulative and prejudicial, as there was already extensive gang evidence (including the accused’s writings) and, since the lyrics were works of fiction, they were not necessarily indicative of the accused’s intent or state of mind. The Court of Appeal rejected these arguments, holding instead that, while lyrics do not always establish an author’s true state of mind, in this context the communications were not equivocal. When combined with the other gang evidence, the lyrics went beyond fiction and disclosed the accused’s state of mind, his motives and his intentions. Although the language and substance of the lyrics were graphic, the court held that they “did not rise to the level of evoking an emotional bias against [the] defendant as an individual apart from what the facts proved” (at p. 35).
[56] In People v. Toluao, 2012 Cal. App. Unpub. LEXIS 7209 (C.A.), the appellants were alleged to have murdered a member of a Crips gang in retaliation for the murder of a fellow member of their Bloods gang. Citing Zepeda and Olguin, the Court of Appeal stated as a general principle that “rap lyrics describing gang activities are relevant and admissible in cases charging gang-related crimes” (at p. 17); the court then went on to hold that the letters and rap lyrics had been properly admitted at trial to show the appellants’ motive and intent in committing the crimes.
[57] In Tran v. Felker, 2008 U.S. Dist. LEXIS 33157, the prosecution had alleged at trial that the two accused were members of a street gang and had participated in a shooting of rival gang members in retaliation for those individuals having disrespected them. Letters written by the petitioner while in custody, which included references to bad acts unrelated to the alleged offence, as well as references to his gang, were held to have been properly admitted at trial as relevant to motive, identity, and intent. They were not, as the petitioner argued, impermissible propensity evidence.
[58] In Rodriguez, the petitioner’s writings were held to be admissible to prove he was a gang member, which was essential for the gang enhancement requirement to be made out. The writings were also relevant to another aspect of motive, namely, racial bias, as demonstrated by derogatory comments in the letter regarding black people.
[59] In People v. Villareal, 2002 Cal. App. Unpub. LEXIS 458 (C.A.), a letter was discovered in the appellant’s room, addressed to his gang moniker, sent from an unknown female. The letter stated that a gang blamed him for shooting her ex-boyfriend and that another rival gang was disrespecting the appellant. The rival gang was involved in the shooting with which the appellant had been convicted. The court held that the letter was properly admitted at trial since it explained the motive for the shooting. On the admissibility of gang writings and letters to prove motive, see also U.S. v. Brown and Fields, 2008 U.S. Dist. LEXIS 51805 and Xabandith v. Castro, 2009 U.S. Dist. LEXIS 74048.
[60] In People v. Loyer and Delariva, 2005 Cal. App. Unpub. LEXIS 11809 (C.A.), the appellants were convicted of street terrorism and two counts of assault with a deadly weapon. At trial, the prosecution adduced letters written by Delariva in which he described his approach to committing crimes, his participation in a prison gang fight, and beating up another inmate. One letter also contained derogatory racial terminology. On appeal, the court held that the letters were properly admitted in support of the prosecution’s theory that the appellant was a devoted gang member who assisted his co-accused in avenging a prior attack in which they had been beaten and humiliated. Evidence that the appellant was a hardcore gang member, willing to follow gang protocol and dedicated to protecting his gang’s honour, was said to bear directly on his intent.
[61] In Masters v. People, 2002 Colo. LEXIS 906, the petitioner had been convicted of the murder of a woman whose body had been sexually mutilated. At trial, the prosecutor adduced over 1000 pages of graphically violent writings and drawings on such subjects as murder, torture, decapitation and dismemberment seized from a suitcase in the petitioner’s bedroom. Hatred of women was a common theme, and much of the violence in the written material had sexual overtones. The petitioner argued that the writings and drawings amounted to bad character evidence. The majority of the court disagreed, holding that the material was relevant, inter alia, to motive and, thus, it was more probative than prejudicial.
[62] Turning to this case, where the relevance of the documents is said to be that it shows the mindset of the accused toward the Crips generally, and the EWC in particular, editing such as occurred in Leslie would defeat the very purpose of adducing the documents. The argument against admission is that the material shows a propensity for violence. I disagree. It is important to remember that the evidence does not tend to show that either accused acted in conformity with any particular propensity he might have, and it is not being offered for that purpose. The documents do not show a general propensity for violence on the part of either accused. Rather, they tend to show a very specific animus toward the very group of which the deceased was a member, and, by extension (assuming the jury attributes one or more of the proffered documents to the accused then being considered), demonstrate a motive on his part.
[63] In trying to balance the potential prejudice versus the probative value of this evidence, it is important to bear in mind the positions of the parties in this trial. On the one hand, the Crown contends that, as members of M.O.B. Klick, a Bloods-affiliated gang, both accused hated Crips generally and, in particular, hated M.O.B. Klick’s arch rivals, the EWC. On the other hand, both defence counsel contend that their respective clients are aspiring rap artists. In that vein, just as defence counsel seek to explain the content of some of the YouTube videos as legitimate musical endeavours on the part of their respective clients, they seek to explain the seized writings in the same way.
[64] Dealing first with the Crown’s position, if the jury accepts that the accused wrote the documents in question, and the documents express hatred and violent intent toward a group of which the deceased was a member, then those documents will go some considerable distance toward proving the motive the Crown alleges. That is to say, it is not only the nature of the content that tends to demonstrate that hatred. Rather, the considerable volume of material might tend to establish in the minds of the jury not just the fact that the accused hated the Crips, and the EWC particularly, but also the profound and all-consuming nature of that hatred.
[65] In this regard, I note that the court in McIntosh, at paragraph 75, stated,
In balancing the probative value against the prejudicial effect of the evidence, the fact that these two items represented only a very small part of the appellant's writings for school and otherwise cannot be overlooked.
I take that statement to mean that to rely on only a few select extracts, not representative in kind of the majority of the material seized, would create a distorted impression of the extent to which the subject of the proffered extracts occupied the appellant’s thoughts. That would, in turn, skew the probative value of the evidence. In the case at bar, on the other hand, the vast majority of the material the Crown seeks to adduce speaks to an issue the jury must decide, namely, whether members of M.O.B. Klick hate the Crips, and the EWC in particular, sufficiently to constitute a motive to commit the crime charged.
[66] The defence would prefer, of course, that this material not go before the jury at all. Understanding, however, that some of it will be put before them as being relevant to the motive of both accused and to the proof of an element of first degree murder as against Mills, the question becomes how much can be introduced before the potential prejudice of the writings eclipses their probative value. Once the decision has been made, as it has in this case, to admit material of this type, I do not see that the prejudice increases greatly with the amount adduced. Or, if I am wrong in that regard, it seems to me that the probative value increases more than the prejudice, by showing, as I have earlier said, the depth of the animus (and hence motive). To restrict the number of documents to be adduced would present an anemic and artificial picture of the depth of hatred the Crown contends the documents reflect.
[67] Turning to the defence position, at paragraph 5 of Leslie, McCombs J. observed:
Whatever one might think of the pathology of such lyrics, the fact remains that they are not uncommon in rap music. Moreover, I am told that in this case there will be evidence that the accused man … had aspirations as a rap singer.
The same is true in this case. That said, to limit the number of writings to be adduced on the basis of their alleged prejudicial impact on the jury would tend, in my view, to undermine the defence being advanced. It seems to me that, once the jury knows from any writing that the accused is prone to write about violence, if the jury is to be persuaded that the writings do not reflect actual views and sentiments held by the author, but, rather, merely an ongoing artistic endeavour, or at least entertain a doubt on this score, the more material there is the more likely it may seem to the jury that the accused was seriously engaged in creating rap music.
[68] In Terry, at paragraphs 29 and 30, speaking for the court, McLachlin J., as she then was, held that notwithstanding that its probative value was “not great” and the prejudice was “considerable”, the poem was properly admissible because the poem was consistent with the innocence of the appellant:
The probative value of the poem on the ultimate issue is not great. As a form of artistic expression, a poem is not necessarily probative of the "truth" expressed therein; an author may have any number of motivations for expressing him- or herself in a given fashion, only one of which is to recite what he or she did. Moreover, this poem's connection with known events is tenuous. No names were mentioned. The poem is undated. No details of the "crime" described in the poem were provided other than a reference to the use of a "knife". At the same time, its prejudicial effect was considerable. The danger existed that the jury would accept the poem's oblique factual similarity with actual events to infer directly that the appellant was the author of both the poem and the events.
These concerns, however real, were alleviated by the careful instruction the jury received on the use of the poem. The trial judge charged the jury that it could conclude that the poem represented a "lament about the killing in question", but was not to use it in isolation as direct proof of the fact the appellant committed the act. It was admissible, he instructed, as a link in the chain of inferences tending to establish guilt; the strength of that link was for the jury to determine based on the cogency of the connecting inferences and the number and nature of alternative innocent inferences. Defence counsel specifically alerted the jury to the fact that the appellant was the author of numerous poems written prior to the killing, some of which conjured up scenes of violence. And there was nothing in the Crown's address that was capable of "inflaming the emotions of the jurors" to the point where they would overlook the fact that an inference equally consistent with innocence could be drawn from the poem. Accordingly, I conclude that admission of the poem was proper.
Those remarks are equally applicable to the case at bar. As I have earlier said, it will be for the jury to determine, with the benefit of careful instruction respecting the permissible and impermissible uses of the evidence, whether the writings are reflective of sentiments that amount to motive or whether they are merely the efforts of an aspiring rap artist.
(iii) Content of Exhibit 32
[69] To begin, Exhibit 32 consists of two classes of documents, handwritten documents and mechanically printed documents, some of which have a modest amount of handwriting on them.
(a) Mechanically Produced Documents
[70] I will deal first with the mechanically printed documents.
[71] Included in the materials are four pages that appear to be photocopies of certain sections of the Trespass to Property Act, R.S.O. 1990, c. T. - 21. There is nothing on any of the four pages that links them to either accused. Therefore I see no probative value, but, equally, no possibility of prejudice.
[72] There is an official Toronto Police Service document entitled “Important Notice” notifying a named person (not either of the accused) of the need to contact a particular police officer respecting personal service of a document. Insofar as it names neither accused, I see no probative value, but, equally, no possibility of prejudice.
[73] There are a number of official court documents addressed to Chael Mills, to wit:
(i) a court order imposing probation dated July 3, 2009;
(ii) the resulting probation order; and
(iii) four copies of a letter addressed to Mr. Mills at that address, dated July 16, 2009, from his probation officer, respecting the aforementioned probation order and advising him of his first appointment with her.
According to the documents, the probation order was imposed when the court registered a conviction against Mr. Mills for the offence of failing to appear in court.
[74] For its part, the Crown argues that the court documents are necessary to associate Mr. Mills with that apartment. That association is important, in turn, to establish that Mr. Mills is the author of the handwritten documents seized from the apartment. Although it was not argued, presumably the court order and the probation order also have some probative value because each bears what purports to be Mr. Mills’ signature.
[75] Mr. Rodocker, on the other hand, argues that the court documents must be excluded because they tend to show that Mr. Mills has been involved with the judicial system prior to the events of May 3, 2010. Knowledge of that involvement, counsel contends, will invite propensity reasoning on the part of the jury. I disagree.
[76] Albeit the documents indicate prior involvement with the judicial system, there is no mention in any of the probation documents of the offence with which Mr. Mills was charged respecting which he failed to appear. That said, even without the benefit of an instruction, the prospect that a jury would engage in propensity reasoning respecting a charge of first degree murder from the mere fact that the accused had been convicted of failing to appear in court is extremely remote. With the benefit of an instruction in that behalf, it is inconceivable to me that the jury would use a conviction for failure to appear in court as a make-weight factor in deciding the case.
(b) Handwritten Documents
[77] As for the handwritten documents remaining in Exhibit 32 (i.e., those not submitted to the Centre of Forensic Sciences for expert analysis, which now comprise Exhibit 70), the Crown attributes all of them to Mr. Mills.
[78] Mr. Rodocker argues, in an omnibus approach, that, because they mention drug dealing and violence, the handwritten documents are too prejudicial to be put before the jury. Although he singled out certain specific passages as exemplifying his position, as noted above, Mr. Rodocker did not make specific submissions concerning the probative value versus the prejudicial effect of individual documents. Rather, he simply contended that the entire package, as it were, ought to be excluded on the basis that its prejudicial effect will outweigh its probative value. Recognizing that the documents are potentially prejudicial, in the face of their equally obvious probative value this generalized approach was, with respect, unhelpful.
[79] Assuming that the jury was to find as a fact that Mr. Mills was the author of the handwritten documents in Exhibit 32 and, further, that the sentiments he expresses were real, I am of the view, for the following reasons, that the probative value of these documents would be high.
[80] The author refers to himself as a “Gangsta”. That is some evidence capable of supporting the Crown’s contention that Mr. Mills is a member of a street gang.
[81] The author refers to selling crack. According to Backus, selling illegal drugs, principally powdered cocaine and crack, is one of the mainstays of street gangs.
[82] The author refers to himself carrying guns and as being “strapped”, which, as I understand Backus’ evidence, means that he is armed. Showing that Mr. Mills has access to firearms is probative of the Crown’s main contention that it was Mills who shot Mr. Celise.
[83] The author makes numerous references to firearms, using terms such as “12 gauge shotty”, for shotgun, and “30/30”, which I take to be a reference to a .30/30 rifle, to name only two of many.
[84] The author writes in one of the documents,[^4] “we keep a strap close in case a nigga start mustlein [sic]….” As earlier noted, Backus is of the opinion that territoriality is important to street gangs and they respond with violence to incursions by rival gang members. As earlier noted, Celise was wearing blue clothing in M.O.B. Klick territory.
[85] Mr. Rodocker and Ms. Gadhia each complain that the documentary material the Crown seeks to adduce is objectionable by virtue of both its sheer volume and the repetitious nature of what is set out in some of the documents. But both the volume and the repetition are important.
[86] Dealing first with the volume, whether the author is serious about the sentiments he expresses in the various documents or whether the content is nothing more than musical lyrics with no serious intent underlying it, the sheer number of documents makes it plain that this material was not created in a matter of few hours. On the contrary, whatever the mindset of the author(s) in relation to the ideas expressed, I am convinced that this body of work took a long time to produce. That, in turn, suggests a degree of commitment to those ideas, reflecting either, on the one hand, a serious mindset or, on the other, a concerted attempt on the part of the author to establish himself as a rap artist. Either way, the effort required to produce that body of work is some circumstantial evidence from which the jury might draw an inference concerning the state of mind of the writer. In my view, the inference to be drawn from the totality of the material actually found in Apartment 604 is different than that which one could safely draw from only the one or two documents that the defence suggests should suffice to establish that which the Crown seeks to prove.
[87] Second, in terms of the violent sentiments expressed in individual documents, Mr. Rodocker complained that there is great repetition in certain documents that increases the prejudicial effect of those documents. I disagree. While it is for the jury to say whether or not they reflect serious sentiments on the part of the writer, it is clear to me that much of what is found in these documents are, indeed, lyrics to rap songs. If the repeated phrases are left in one can clearly see that there is a great deal of rhyming, such as one might find in a song. However, if one takes those repeated passages away, the sense that the words are lyrics to a song is lost.
[88] As the Crown noted in oral argument, there is no admission concerning the nature of M.O.B. Klick or that either accused belongs to M.O.B. Klick.[^5] Crown counsel argues that, in the absence of those admissions, it should be entitled to have the documents go before the jury to demonstrate that M.O.B. Klick is not a harmless rap group, as argued by the accused, but, rather, a street gang and by extension, a criminal organization. In light of Backus’ evidence concerning the nature of street gangs and the concept of territoriality they embrace, the content of these documents and, in particular, the violent thoughts they express, is essential to that demonstration, the Crown contends. I agree. I note in this regard that I made it very plain in my initial ruling on these issues that the probative value of some of the proffered evidence might lessen dramatically if certain admissions were forthcoming. In terms of counsels’ argument that the references to guns should be redacted, that would defeat the purpose of this evidence, which is, in part, to demonstrate both that M.O.B. Klick is a street gang and the animus it bears toward a rival gang of which the deceased was a member.
(iv) Content of Exhibit 70
[89] As noted above, Exhibit 70 comprises a subset of the material seized from the apartment, namely, that which was selected for submission to the Centre of Forensic Sciences to be examined by a handwriting analyst.
(a) Tab “A”
[90] The documents under Tab “A” are said to have been authored by Chael Mills. As with the documents in Exhibits 32, Mr. Rodocker took no individualized position with respect to any document found in this exhibit; rather, he simply argued that the probative value of any, and all, of them was outweighed by their potential prejudicial effect. For the reasons I have already stated, I disagree.
(b) Tab “B”
[91] The documents under Tab “B” are attributed to Lavare Williams.
[92] The Crown argues that, in addition to showing the nature of M.O.B. Klick, the documents in Tab “B” tend to prove that Williams was a member of that organization. By way of specific examples, Crown counsel points to pages 1, 2, and 5, which all support, in one manner or another, the Crown’s assertion that Mr. Williams was a member of M.O.B. Klick.
[93] Ms. Gadhia acknowledged in oral argument that these documents have probative value, but, like Mr. Rodocker, she argued that any such value is outweighed by their potential prejudice. Unlike Mr. Rodocker, however, Ms. Gadhia went on to make certain specific submissions in relation to particular documents.
[94] To begin, Ms. Gadhia took no exception to the admission of the following pages of Tab “B”, namely, 2, 4, 7, 8, 9, 13 and 15.
[95] Turning to what she identified as objectionable under Tab “B”, Ms. Gadhia argues that page 1 is excessively violent, too descriptive, and not necessary to the Crown’s case. I disagree. To begin, at the top of the page, the word “CHIIBY” appears; that is a variation on the nickname by which Williams is known. Taken together with other evidence of this being Williams’ nickname, this tends to identify Mr. Williams as the author of the document. The words “fuck a Crabe[^6] bitch … I fucked one on St. Clair” display animosity toward Crips generally. More specifically, the words, “sayin you from eglinton we let it rip broad day get you your head split so whatch you say blood Nigguh fuck a crip stabe him up shoot um up”[^7] could readily be understood by the jury as an expression of violent intent toward the EWC.
[96] Likewise, page 3 is, according to Ms. Gadhia, too violent to be admitted. Again, I disagree. As with page 1, the words, “Nigguhz call me chiibsz” tend to identify Mr. Williams as the author of the document. The words, “Mob Klick is what I do kuz I bang blood! bullets buss and bang you up leave your body tangle up me and my nigguhzs straight laughin dont give a fuck … from the Mob Klick I throw blood up nigguh suwooo” associate M.O.B. Klick with the Bloods gang. That is important because Williams’ position is that M.O.B. Klick is a rap group having nothing to do with any street gang. Further, the words associate M.O.B. Klick with violence. The words, “Damn nigguhz never ever catch my nigguhz ever wearin blue nigguh you no what it be like on da strip,”, show animosity toward Crips. The words, “30 30 mean machine Hitch you you cant stop it your nigguhz be runnin while were laughin and tauntin backin out and dumpins is what were doin if your plotin skeemin were just gonna half to leave you bleedin,…”, demonstrate not only animus, but also that the author’s hostility includes violent thoughts. The words, “kuz were bloodin on the strip all day day day,!”, associate the author with the Bloods gang. [^8] As for potential prejudice, while the document speaks of violence, it is not particularly graphic. On the other hand, virtually the entire document is probative of the Crown’s case.
[97] As for page 5, Ms. Gadhia contends that the sentence beginning with the words “You think” and ending with the words “run and dip” are too violent. I disagree that the sentence Ms. Gadhia complains of should be redacted. In my view, the passage speaks directly to a retaliatory plan to kill a member of the EWC and then escape. She took no issue with the remainder of the page.
[98] Ms. Gadhia took exception to page 6, but, while it does speak of violence, it has probative value for the Crown. There are two references, “bloodin” and blood”, that could be understood as associating the author with the Bloods gang. The word “Ginga” appears, which is a nickname by which Mills is known; that amounts to some circumstantial evidence associating the author, ostensibly Mr. Williams, with Mills. In light of the fact that there is no admission that the two men are associates, that has some probative value. The author also refers to carrying two Glocks on him for protection. There is some evidence, namely, the text message from Williams to Mills in the immediate aftermath of the shooting and Mills’ reply, from which the jury might find that Williams provided the handgun used to kill Celise. If the jury were to find that Mr. Williams authored this document, then, even though it appears that Celise was shot with a Beretta handgun, not a Glock, a statement that he possessed two handguns is, nonetheless, of some, albeit limited, probative value in that it shows that he had access to firearms.
[99] As for page 10, it has some limited references to violence, but they are not overly graphic. In terms of probative value, it mentions Williams’ nickname, “Chiibz”, and, in this context, is some evidence that he is its author. The probative value of the mention of this nickname in this and other documents under Tab “B” cannot be understated. It was the opinion of Ms. Comstock-Seevers, the forensic document examiner, that, within the limits of practical certainty, all the documents at this tab were authored by the same person. However, in the absence of an admission in that behalf, the prospect that Mr. Williams is that author is greatly enhanced if any one or more of the documents can be attributed to him by his name being associated with them. The page also includes the words, “I love da [sic] red…” and “Vaughan rd. [sic]”. Red is the colour associated with a Bloods gang and Vaughan Rd. is an area claimed by the Bloods as their territory. This is, therefore, some evidence associating the author with the Bloods.
[100] Ms. Gadhia also took exception to pages 11 and 12 on the basis that they are gratuitously sexual in nature and would not advance the Crown’s case. However distasteful the sexual references might be, I see no possibility that the jury would reason from what some jurors might perceive as low moral standards in sexual matters on the part of Mr. Williams to any propensity on his part to commit the offence for which he is being tried. That said, the Crown, for its part, agreed to redact the sexual references of which Ms. Gadhia complained. Page 12 contains the word “Chibi”; I take this to be yet another variation of Mr. Williams’ nickname. The word “Glock” also appears on this page.
[101] Ms. Gadhia argued that page 14 is gratuitously violent and ought to be redacted. In my view, the contents of that page assist the Crown’s case in two ways.
[102] First, the expression “B’Z up” is found on the page. As earlier noted, according to Backus, this is a sentiment of Bloods’ supremacy. As such, it is some circumstantial evidence of gang membership on the part of the author.
[103] Second, the author refers to a “Winchester pump” (which I take to be a reference to a pump action shotgun) and goes on to state that he “use to keep it under the mattress but now Im mad again, movin with a vengeance niggha I might flip my lid Aimin at your face like… Im on some killa shit blood….”[^9] Together with other evidence, this passage can reasonably be understood to demonstrate animus and, hence, motive.
[104] In summary on this issue, I disagree with Ms. Gadhia that the pages she is concerned about are unnecessary to the Crown’s case. I say that because one cannot discern with any exactitude just how much evidence is necessary to prove a particular point to a jury. Indeed, it is quite conceivable that with any particular jury, one member may require more proof than another to be convinced of the same proposition. That said, it is easy, from a defence perspective, to opine on how much evidence is enough. It is quite another matter, however, to decide in a given case just how much evidence will suffice to make a particular point to the satisfaction of the jury. This point was made in Cerda, where the court held, at p. 23, “The prosecution had the burden of proof on the charges and the special circumstance. It is not required to limit its case by presenting only enough evidence to be legally sufficient to meet that burden of proof” (emphasis added; citations omitted). Those remarks are apposite in the case at bar. The equivalent in this case of the “special circumstance” in California’s gang statute is, of course, the Crown’s obligation respecting Mills to establish the additional element required by s. 231(6.1) of the Code in order to prove first degree murder.
[105] I further note that in Cerda, where the impugned writings were admitted in addition to other gang-related evidence, the court held, at p. 25:
In such circumstances, the challenged evidence was, at worst, cumulative. Any additional prejudice to Cerda from the challenged evidence beyond the prejudice from other unchallenged, properly admitted evidence was minimal. [Citations omitted.]
In that vein, I harken back to a point I made earlier, namely, that the probative value of the writings (which shows – depending on the factual findings of the individual jurors – either the true depth of the hatred of the accused they are then considering for Crips generally, and the EWC in particular, or, on the other hand, the full extent of that accused’s commitment to the rap music genre) tends to increase at a rate greater than the potential prejudice arising from a perception that the accused has a general propensity for violence.
(v) Summary Respecting Prejudice Versus Probative Value
[106] In my initial ruling,[^10] I indicated that the probative value of the various things I had ruled admissible, including the materials seized from the apartment, could change depending on whether certain admissions were forthcoming from the defence. As noted above, however, there has been no admission by either accused concerning the issues this evidence is intended to address.[^11] It remains to assess, in the absence of any admissions, whether the probative value of the documents outweighs any prejudice they might engender.
[107] In Lujan, the court held, at p. 15:
Prejudice “‘naturally flows from relevant, highly probative evidence.’” (People v. Gionis (1995) 9 Cal. 4th 1196, 1214.) But, section 352 is not concerned with that sort of prejudicial effect, but with “evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.”[^12]
Similarly in Tran, on reviewing the decision of the California Court of Appeal, the United States District Court held, at p. 67, that “all evidence against a criminal defendant is ‘highly prejudicial’ in that it has the potential to establish guilt, but this does not necessarily mean that all evidence is unduly prejudicial or that its prejudice substantially outweighs probative value.” In Villareal, the court held respecting the letter at issue, “The evidence did not tend to demonstrate a criminal disposition nearly so much as it explained the motive of the perpetrator of this killing, and the decision to admit it was reasonable” (at p. 19).
[108] Applying those considerations to this case, the documents in question are not such, either individually or cumulatively, as to evoke, in a properly instructed jury, an emotional bias against either accused as an individual. Further, to the extent that the documents demonstrate a criminal disposition, they do not tend to do so, respecting either accused, nearly so much as they explain the motivations of the perpetrators of this killing. Looking at probative value, the documents are likely to have considerable effect on the issues the jury is required to decide, with the result that I am satisfied that such prejudice as they may create is significantly outweighed by their probative value.
RESULT
[109] In the result,
(i) the video “Bloodz” remains admissible;
(ii) the revised composite audio recording with extracts from the three remaining videos ruled admissible is admissible, but without any video component; and
(iii) the contents of Exhibits 32 and 70 remain admissible.
Clark J.
Released: May 27, 2013
CITATION: R. v. Williams, 2013 ONSC 3100
COURT FILE NO.: 12-40000008-0000
DATE: 20130527
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Applicant
-and-
LAVARE WILLIAMS
Respondent
-and-
CHAEL MILLS
Respondent
PRE-TRIAL APPLICATION #7
ADDENDUM TO reasons for decision
Clark J.
Released: May 27, 2012
[^1]: On May 7, 2010, a Criminal Code search warrant was executed on Apartment 604, 481 Vaughan Rd., in Toronto. The Crown alleges that both accused were residing in this apartment at the time of the homicide. Of the material seized, some was submitted to the Centre of Forensic Sciences for examination by a handwriting expert. The material submitted to the CFS is now found in Exhibit 70. The remainder of what was seized is now found in Exhibit 32. Nothing found in Exhibit 32 is attributed to Mr. Williams.
[^2]: I note, however, that the revisiting of the admissibility of these documents took place at a time after the material had been filed as an exhibit, but, with one exception, before the jury had had an opportunity to peruse the documents. The exception occurred when bound copies of Exhibit 70 were given to the jurors to assist them in understanding the evidence of the handwriting expert, Ms. Comstock-Seevers, when she opined as to the authorship of a host of questioned documents. Apart from having the binders in hand, however, the jury was not, to my observation, focusing on the documents in Exhibit 70. Rather, to my observation, the jury was focused on the witness, and on several charts she used to explain her analysis. In any event, in light of my ruling on this issue the question is effectively moot.
[^3]: R. v. Williams, 2013 ONSC 1076, [2013] O.J. No. 759, at paras. 130 to 134. Respecting the fact that some of the American authorities referred to herein are “not certified for publication” or “unpublished”, see note 20 of that decision.
[^4]: Exhibit 32, the page beginning with the words “Harlem Dress in all black….”
[^5]: I note, parenthetically, that on March 14, 2013, in oral submissions on this issue, Mr. Rodocker indicated that his client was prepared to admit that he is a member of the Vaughan Road Bloods. However, the vast bulk of the evidence speaks to the existence of M.O.B. Klick, and the involvement of these accused in that group. Since there was very little evidence in this trial concerning the Vaughan Road Bloods, the proposed admission was not such as to significantly advance the Crown’s case. That said, the proposed admission would not alter the probative value of the documentary evidence. In the final analysis, no admission was ever made in this regard.
[^6]: According to Backus, the word “Crabe” is a derogatory slang term used by members of the Bloods to refer to the Crips.
[^7]: The words from page 1 are reproduced verbatim; all spelling, grammar and syntax errors are in the original.
[^8]: All of the quotes from page 3 cited in this paragraph are reproduced verbatim.
[^9]: This quote is reproduced verbatim.
[^10]: At para. 258.
[^11]: In Tran, the petitioner was willing to stipulate that he was a member of a street gang, but unwilling to stipulate that he acted for the benefit of, at the direction of, or in association with, the gang. On reviewing the conviction on due process grounds, the District Court expressly agreed with the California Court of Appeal’s holding that the petitioner had failed to make adequate stipulations to render the challenged evidence unnecessary to proof of the prosecution’s case.
[^12]: Section 352 of the California Evidence Code provides that the court has a discretion to exclude evidence where, inter alia, “its probative value is substantially outweighed by the probability that its admission will … (b) create substantial danger of undue prejudice…”; see Williams, at para. 132 and note 19.