ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12/40000306/0000
DATE: 20130606
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
AHMED AHMED
P. Leishman, for the Crown
E. Royle, for Ahmed Ahmed
Heard: January 22, 2013
Forestell J.
RULING ON ADMISSIBILITY OF EXPERT evidence
Background
[1] The Crown applied to introduce expert opinion evidence of a police officer, David Walker, in the trial of the accused.
[2] The proposed evidence of the expert related to the issue of the ‘code of silence’ in the Lawrence Heights neighbourhood or the unwritten rule that witnesses to criminal activity should not speak to the police and could be subject to violent retribution.
[3] The Crown did not give notice of an intention to call this evidence before trial. Disclosure of the identity and qualifications of the proposed expert witness and his anticipated evidence was given after the complainant and the eyewitness had testified in the trial.
[4] The reason for the timing of the application was that the eyewitness in this case, Ryan Malcolm, had, in his police statement, indicated that he did not know who had shot the victim. At trial, he testified that he saw the shooting and that the accused shot the victim. Ryan Malcolm was the brother of the victim. He had lived in the Lawrence Heights neighbourhood at the time of the shooting. He subsequently moved out of the neighbourhood. He testified that he did not want to be labeled a ‘snitch’ or a ‘rat’ by speaking to the police and identifying the person who had shot the victim. He testified that in his experience, people who gave information to the police were beaten up or shot. He testified that he was warned not to go to court to testify.
[5] The Crown sought to introduce the expert evidence to show that there was a code of conduct prohibiting speaking to the police. The credibility of Mr. Malcolm was of central importance as he was a witness to the shooting.
[6] The accused opposed the introduction of this evidence on the basis that it was not necessary. Counsel for the accused also argued that the evidence would inevitably suggest gang activity and this would be prejudicial to the accused.
[7] On the voir dire a written outline of the proposed evidence and the qualifications of the witness was filed. I also heard the viva voce evidence of David Walker. I also considered the evidence heard to that point in the trial.
[8] On January 22, 2013, I gave a brief oral ruling excluding evidence. I indicated at that time that I would provide further written reasons. These are those reasons.
The Proposed Evidence of David Walker
[9] David Walker testified that he has worked as a police officer for 23 years in 32 Division, the division responsible for the Lawrence Heights neighbourhood. He testified that in this neighbourhood, 1 to 2% of the population controls the housing complex. Those who control the area are members of street gangs. They keep control of the area by instilling fear in the residents. There is an understanding that if residents cooperate with the police there will be retaliation by the gangs. He testified that residents who are not members of gangs nevertheless understand the ‘rule’ that they should not speak to the police.
The Principles
[10] Expert evidence is presumptively inadmissible. The Crown must establish admissibility on four fronts prior to putting the proposed expert evidence before the trier of fact, namely:
(i) relevance;
(ii) necessity in assisting the trier of fact;
(iii) the absence of any exclusionary rule; and,
(iv) a properly qualified expert.[^1]
[11] In R. v. Abbey,[^2] Doherty J.A. suggested a two-step process for determining admissibility using the criteria set out in Mohan.[^3]
[12] At the first stage of the inquiry, the court must determine whether the following four preconditions to admissibility have been established:
• The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;
• The witness must be qualified to give the opinion;
• The proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and,
• The proposed opinion must be logically relevant to a material issue.[^4]
[13] At the second stage, or the ‘gate-keeper stage’ of the inquiry, the court must engage in the ‘cost-benefit’ analysis described in Mohan.
[14] Justice Doherty wrote that the necessity criterion should be considered in the second stage, cost-benefit analysis: “It seems self-evident that an expert opinion on an issue that the jury is fully equipped to decide without that opinion is unnecessary and should register a ‘zero’ on the benefit scale. Inevitably, expert opinion evidence that brings no added benefit to the process will be excluded.”
[15] The cost or prejudice side of the analysis will involve an assessment of the risks of the evidence, including the “consumption of time, prejudice, and confusion.”[^5]
Application of the Principles to this Case
[16] The proposed expert evidence in this case meets the requirements set out in the first stage of the inquiry. Evidence of a ‘code of silence’ has been the subject of expert opinion in other cases. I am satisfied that the proposed witness is qualified to give expert opinion evidence on this subject. The evidence is not subject to any exclusionary rule and the proposed evidence is logically relevant to the credibility of Ryan Malcolm.
[17] The evidence does not meet the requirements of the second stage of the inquiry. This evidence is not necessary for the jury to assess the credibility of Ryan Malcolm. Mr. Malcolm testified about the existence of the code of silence. He was not challenged on his assertion that such a code existed. He was challenged on the veracity of his current version of events. It was suggested to him that his original statement to the police was true and that the victim, his brother, had influenced him to change his story and implicate Mr. Ahmed.
[18] The existence of the ‘code of silence’ is not in issue in this trial except in the most tangential way. The potential prejudice from the introduction of this evidence in the context of this case is significant. There is no evidence that the accused has any ties to street gangs. The evidence relating to the code of silence would inevitably raise the issue of gangs in the Lawrence Heights area. This evidence would be confusing and distracting and would create a risk of the jury speculating about gang involvement in this offence. Where, as here, the jury is fully equipped to assess Mr. Malcolm’s evidence without the benefit of expert opinion evidence, the probative value of the evidence is substantially outweighed by its potential prejudicial effect.
Conclusion
[19] The application to introduce expert opinion evidence is dismissed.
Forestell J.
Released: June 5, 2013
COURT FILE NO.: 12/40000306/0000
DATE: 20130606
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
AHMED AHMED
RULING ON ADMISSIBILITY OF EXPERT evidence
Forestell J.
Released: June 6, 2013
[^1]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.)
[^2]: 2009 ONCA 624, [2009] O.J. No. 3534 (C.A.)
[^3]: Mohan, supra.
[^4]: Abbey, supra, at para. 80
[^5]: R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600 (S.C.J.) at para 47