ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-50000281-0000
DATE: 20130905

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHELDON EVANS, SHANE EVANS, ORRETT FRANCIS, RASHARD GREEN and JOSEPH DAWKINS

G. Lennox and P. Tsui, for the Crown

S. Freeman, for Sheldon Evans

C. Rippell, for Shane Evans

G. Leslie and L. Walker, for Orrett Francis

H. Cedro, for Rashard Green

S. Fishbayn, for Joseph Dawkins

HEARD: June 17, 2013

REASONS FOR RULING

M. Dambrot J.:

[1] The Crown alleges that the five accused are each members or associates of the Five Point Generals, a street gang that operated in north Toronto. The Crown further alleges that, in various configurations and along with others, the five accused committed the thirty offences contained in the indictment being tried by me with a jury. That indictment includes drug, firearms, conspiracy and criminal organization offences.

[2] After the Crown had completed its case, I canvassed with counsel for the accused whether or not any of them intended to call a defence. Counsel for Shane Evans announced that he proposed calling two expert witnesses: John Turner, a journalist, and Inspector Howard Page, a member of the Toronto Police Service. The intended purpose of this evidence was to assist the jury in interpreting wiretap communications of the accused and others concerning the sale of illicit drugs admitted into evidence in the Crown’s case. I ruled the evidence to be inadmissible, with reasons to follow. These are those reasons.

THE TRIAL

[3] Many of the counts in the indictment relate to drug trafficking. For the most part, these charges depend on the interpretation of intercepted private communications amongst the accused and other alleged suppliers and customers. Most of the accused do not take issue with the Crown’s allegation that the interceptions establish that they were engaged in drug trafficking. They do take issue with the Crown’s allegation that they were involved in trafficking cocaine. This is not an issue for the jury in count one, which alleges that all of the accused, save Dawkins, trafficked in controlled substances for the benefit of or in association with a criminal organization. Their only defences to this charge relate to the criminal organization component of the offence and, in the case of Sheldon Evans, voice identification. But in many other counts, the Crown specified that the drug in question was cocaine in some instances, and marihuana in other instances. It is in relation to the cocaine counts (counts 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20) that this evidence is proffered.

[4] As is usually the case, when the accused discussed and negotiated drug transactions on their cell phones, they did not identify the drugs they were buying or selling by name. Instead they used street terms or guarded language that referred to the drugs themselves, or to quantities and prices that the speakers obviously understood to relate to particular drugs.

[5] In order to assist the jury in reaching a conclusion about the meaning of this language, I permitted the Crown to lead opinion evidence from Sgt. Ross, a member of the Toronto Police Service, about the distribution of illegal drugs, including drug distribution hierarchy, pricing, packaging, sale methodology and methods of concealment. All of this evidence was to assist with the interpretation of street and coded language relating to drugs, including cocaine and marihuana, in the intercepted private communications tendered in evidence by the Crown. I concluded that Sgt. Ross was qualified to give this evidence based on his knowledge and experience, as well as the concession by all of the accused that he was qualified to do so.

[6] Sgt. Ross has been a police officer since 1999. After his police training, he was assigned to 51 Division, in the Regent Park area, where there is a great deal of drug trafficking, including trafficking in crack cocaine. As a result Sgt. Ross became involved in many drug investigations, particularly for a six month period beginning in June 2001. During this period he was part of a street level unit in which he played many roles, but primarily acted as an undercover officer. After this assignment was completed, he returned to uniform duties until January 2005, when he became a member of the drug squad. In that position he investigated street and mid-level drug traffickers, primarily acting as an undercover officer. He subsequently became involved in major projects in the drug squad and remained there until May 2011. He has made undercover purchases more than 150 times, but he only purchased marihuana on 10 to 15 occasions, and never purchased more than a small amount. Sgt. Ross also made on-going efforts to upgrade his knowledge about the issues in relation to which he testified.

[7] In addition, Sgt. Ross extensively studied the great many interceptions of private communications in this project, both those adduced in evidence in this trial and many more that were not adduced in evidence. He reached his conclusions about the meaning of the terminology used in the interceptions in evidence based on his general experience, as well as the specific ways words were used in all of the interceptions in this project, the manner in which the words were associated with quantities and pricing, and the specific context of each of the interceptions and ones closely associated with them.

[8] Much of Sgt. Ross’s evidence went unchallenged. The dispute in this case was very narrow. It focused on a few terms that Sgt. Ross associated with cocaine, but that the accused argued could also relate to marihuana. The principle term in issue was the word “Cuban”, and to a lesser degree the words “20”, “chicken” and “Vanna White debout”.

[9] With respect to the term Cuban, Sgt. Ross testified that in his experience, cocaine is commonly sold in a quarter-ounce quantity, called a cube, a Cuban or a Q. He was cross-examined extensively about the use of the word Cuban. It was repeatedly suggested to him that the term Cuban can also mean marihuana. His evidence was that in the instances that he had heard Cuban used in drug transactions, it has been used to mean cocaine. At one point, a cross-examiner suggested to him that Cuban was a code that lends itself to weight, and that it is possible to use it for another drug. He agreed. When asked if it was reasonable to transfer the word to the marihuana context, he replied that it was only fair for him to say what he knows. On another occasion, when asked again if it was reasonable that Cuban could mean marihuana, he replied, “In my experience it has always been cocaine, but it is a weight, so it may extend to other drugs.”

[10] Importantly, when interpreting the word Cuban in a specific communication, in addition to referring to his experience with the word Cuban, Sgt. Ross looked at the entirety of the conversation in order to understand the context in which it was used. Having regard to the prices and quantities mentioned and what preceded and followed the use of the word in the communication, he was then able to interpret it as meaning cocaine. He also took into account the language in communications that were associated with the one he was examining, and how the same speakers used the word in other conversations.

[11] Finally, there is other evidence that provides strong support for the view that Cuban ordinarily means cocaine in the drug trafficking milieu under consideration, including the experience of several other drug officers. However one police officer stated that Cuban usually means marihuana, but that it had also been used to mean cocaine. That officer, D.C. Murray, had never acted as an undercover police officer, but had listened extensively to wiretap calls, and said that he was very uncomfortable in giving evidence about coded language. He was unable to say what weight of drug it referred to.

[12] Sgt. Ross also testified about a reference to the phrase “Vanna White debout”, which was repeated 39 times in one particular text message and referred to in a few related text messages. He testified that in his opinion this was a reference to cocaine. He had never heard of “Vanna White” being used this way at any other time, but he inferred this meaning from the context, related communications, references to price and quantity, other references to the same substance as “fizzy”, which also means cocaine, and the fact that cocaine is white and is often referred to as “white”. He resisted the suggestion that because marihuana sometimes has a white residue on its buds, this term could have been a reference to marihuana.

[13] Sgt. Ross also testified about references in several communications to sales of a “20” or a “20 piece”. He said that at the street level, crack cocaine is usually sold according to price, most commonly in amounts worth $20, $40 or $60. A $20 amount of crack is commonly called a 20 piece, a 20 or a 2, without any specific indication of the type of drug being sold. Counsel for some of the accused suggested to him that a 20 could also be a reference to marihuana. Sgt. Ross said that this was not his experience. However it was shown in cross-examination that in earlier testimony on one occasion, Sgt. Ross had conceded that a 20 could mean marihuana.

[14] There was a strong attack on Sgt. Ross’s evidence by counsel for the accused on a great many grounds. For the purpose of this ruling, I see no need to review these. But it is in support of this attack that Mr. Rippell sought to qualify John Turner and Inspector Page as experts, and adduce opinion evidence from them. Counsel agreed that I could determine the admissibility of this evidence on the basis of material filed by Mr. Rippell, without the need for viva voce evidence.

JOHN TURNER

Background

[15] When an accused proposes to call an expert witness at a criminal trial, s. 657.3 of the Criminal Code, R.S.C. 1985, c. C-46, creates several pre-conditions.

[16] First, the accused is ordinarily required to give notice to the other parties of his or her intention to do so at least 30 days prior to the commencement of the trial (s. 657.3(3)(a)).

[17] Second, the notice is required to be accompanied by the name of the witness, a statement of the area of expertise of the proposed witness sufficient to permit the other parties to inform themselves about the area of expertise, and a statement of the qualifications of the proposed witness (s. 657.3(3)(a)).

[18] Third, the accused is required to provide the other parties with the proposed expert’s report, or a summary of the proposed expert’s evidence no later than the close of the Crown’s case (s. 657.3(3)(c)).

[19] Although he was well aware of the significance of Sgt. Ross’s interpretation of the private communications to his client, and indeed prepared extensively to challenge that evidence, Mr. Rippell complied with none of these requirements with respect to Mr. Turner. He gave notice to Crown counsel of his intention to call Mr. Turner only towards the end of the Crown’s case, when counsel engaged in this trial had little opportunity to prepare for it. He provided a statement of Mr. Turner’s qualifications only after the Crown closed its case. At that time Mr. Rippell provided a brief, two-and-a-half page statement to the Crown that included Mr. Turner’s background (one page) and proposed evidence (one-and-a-half pages). And he provided a description of the proposed expert’s areas of expertise only after delivering the statement of his evidence, and only in response to a request made by Crown counsel. Mr. Rippell’s explanation for his breach of s. 657.3 of the Code was unimpressive. In essence, he explained that he had expected to do better in his cross-examination of Sgt. Ross, and had thought he would not need to call his own expert evidence. Despite these breaches of the requirements of the Code, I did not find it necessary or advisable to order any of the corrective measures outlined in s. 657.3(4) of the Code.

[20] Mr. Rippell proposed to call Mr. Turner as an expert in hip hop culture, including the vernacular, the perception of marihuana strains, seeds and their value, and the influences of famous figures who are part of the culture. Most of this appears to be entirely irrelevant to this trial, and in any event is left unmentioned in the summary of Mr. Turner’s proposed evidence. However Mr. Rippell said, in a brief written argument, that this evidence is relevant to the interpretation of the wiretap evidence. I will consider its admissibility in reference to that issue.

[21] Mr. Turner is a journalist who has written on popular culture. He is also a television producer. His background is as follows:

• He hosted a hip hop music program for five years as a student beginning in 1992.

• He wrote for two magazines in New York in 1996 and 1997 that focused on hip hop and rap music.

• He wrote several pieces on rap music and street culture for Shift, a Toronto magazine, in 1998.

• In late 1998, he attended the High Times Cannabis Cup in Amsterdam, and spent two weeks travelling in Holland and reporting on “pot culture”. He interviewed magazine editors, marihuana enthusiasts, championship growers, seed sellers and medical marihuana proponents.

• In 2001, he began working as a television producer at CBC, and continued his coverage of street culture. Specifically he produced a one hour feature about how advertising and brands were using rap and rappers to sell major products. He also produced television segments featuring various rappers.

[22] Based on this background, the expert proposes to express the following opinions:

• High Times is a consistent voice for marihuana enthusiasts, and is an authority on the politics of pot, pricing, marihuana strains and the medical marihuana movement.

• Based on his “research” it “seems” that “white” is well established within the subculture to describe certain strains of marihuana.

• The world of marihuana and music are closely interwoven, particularly within hip hop and rap culture. The vernacular of hip hop is prevalent in society.

• The term “20” is usually synonymous with two grams of hashish, and can also mean a small amount of marihuana.

• The popular rapper Wiz Khalifa filmed a YouTube video that shows how to role marihuana into a Cuban, meaning a Cuban cigar hollowed out and filled with marihuana and smoked.

[23] Crown counsel did some quick research on Mr. Turner for the purpose of this argument. He was able to ascertain that nothing disclosed to the court that was written or produced by Mr. Turner since 2004 pertains to the areas of his alleged expertise. During that period of time, he has written about such matters as: a television programme known as The Wire; Christian cheerleaders in the United States; and the comeback plans for Toronto’s club land of the former “emperor of New York night life”. In addition, his 2004 documentary entitled “Rhyme Pays: Hip Hop and the Marketing of Cool” concerns product placement in hip hop music and remuneration. Most of this has nothing to do with hip hop culture, and none of it has anything to do with marihuana, or the issues at hand. It would appear that Mr. Turner simply intends to repeat in his evidence some of the information he has been able to glean from High Times magazine and YouTube videos.

Analysis

[24] Opinion evidence is generally inadmissible, unless it is: (1) relevant; (2) necessary in assisting the trier of fact; (3) not excluded by any rule; and (4) given by a properly qualified witness: see R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. Until the decision of the Court of Appeal in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 125, relevance was determined by asking these three questions, the first two of which related to logical relevance: (1) does the proposed expert opinion evidence relate to a fact in issue in this trial; (2) is it so related to a fact in issue that it tends to prove it; and (3) is the evidence sufficiently probative: see R. v. A.K. 1999 3793 (ON CA), 45 O.R. (3d) 641, at paras. 77‑79. However in Abbey, at para. 84, the Court concluded that the third question should be removed from the consideration of relevance and that the evaluation of the probative value of the evidence mandated by the broader concept of legal relevance is best reserved for the “gatekeeper” phase of the admissibility analysis. With respect to the proposed evidence of Mr. Turner I will consider the issues mentioned in Mohan in turn, as modified by the decision in Abbey.

(Reproduced verbatim continuation of the judgment…)

[63] I have concluded neither Mr. Turner nor Inspector Page is entitled to give expert opinion evidence in this trial.

M. Dambrot J.

Released: September 5, 2013

COURT FILE NO.: CR-13-50000281-0000
DATE: 20130905

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

SHELDON EVANS, SHANE EVANS, ORRETT FRANCIS, RASHARD GREEN and JOSEPH DAWKINS

REASONS FOR RULING

DAMBROT J.

RELEASED: September 5, 2013