R. v. Patterson, 2015 ONSC 660
COURT FILE NO.: CR-14-50000008
DATE: 20150128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
OMAR PATTERSON
Aaron Del Rizzo, for the Crown
Theodore Sarantis, for the Accused
HEARD: January 22, 2015
B. P. O’Marra, j
RULING ON ADMISSIBILITY OF EXPERT EVIDENCE
[1] Omar Patterson is charged with armed robbery and related offences. On a pre-trial motion the Crown seeks to qualify a police officer to explain the meaning of a single word allegedly used by Mr. Patterson in a text message several hours before the alleged robbery.
QUALIFICATIONS OF SGT. KERR
[2] Sgt. Steven Kerr has been a police officer since December of 2001. His curriculum vitae was filed as an exhibit. He has extensive training and experience in the identification and investigation of urban street gangs. He has trained other officers and made presentations dealing with related issues such as tattoos, graffiti, hand signs and urban street language. The latter includes covert coded words. He has listened to numerous wiretap interceptions and interviewed people who use coded language.
[3] Sgt. Kerr has testified in the Ontario Court of Justice at bail hearings, preliminary hearings and sentencing on issues related to criminal street gangs. His qualifications were not litigated and it must be recognized that the evidentiary threshold on these proceedings is lower than at trial. His testimony in those courts did not deal specifically with the interpretation of coded street language.
ANTICIPATED EVIDENCE
[4] Sgt. Kerr was asked to review and comment on two brief exchanges of text messages. The first part is dated January 5, 2013 at approximately 2:40 p.m. and contains the following lines:
Why the fuck are u yelling in my fucking ear
He s not head of the fucking office he doesn t kno nuttin
Cause I m not tryna her u bitch
I wanna go home
I m tryna be focus today
Yeah after I dry the clothes
Yah so I wanna go home
I can t tak no stress rite now
[5] The second part is dated January 6, 2013 at approximately 1:30 p.m. and contains the following seven lines:
Coming
Kk
Coming bac
Tomorrow flex
It s too late
Kk
Kk
[6] The alleged robbery occurred in the late evening of January 6, 2013.
[7] The anticipated evidence of Sgt. Kerr is that the first part indicates the parties are feeling stressed and planning to work something out. The reference to “flex” in the second part is a code word and refers to a robbery.
[8] Sgt. Kerr testified that “flex” refers to a mission or plan of some sort that could have several meanings. It is a coded word in gang culture. He agreed that he had no information that Mr. Patterson was a member of or associated to a gang.
[9] Sgt. Kerr testified that the only information given to him to review were the text messages. He specifically was not advised of the type of charges being investigated. However, he conceded in cross examination that he was asked to review the material by a member of the Hold Up Squad. From that he acknowledged that he would know the case involved a robbery incident. He denied this factor influenced his opinion that the word “flex” referred to a robbery.
[10] In cross examination he agreed that “flex” in isolation could refer to both criminal and non-criminal activity. An example of the former would be a drug deal, break and enter or theft. An example of the latter would be to show off or show muscle. He maintained that in the particular context of these text messages it referred to a criminal object, specifically a robbery.
THE TEST FOR ADMISSION OF EXPERT EVIDENCE
[11] The test for admission of expert evidence is well established. At the first stage of the admissibility inquiry, the party seeking to tender expert evidence must establish on a balance of probabilities that the proffered evidence is
relevant
necessary
not subject to any applicable exclusionary rule and
to be advanced through the testimony of a properly qualified expert.
[12] Where these four preconditions to admissibility are satisfied the second stage of the admissibility inquiry obliges the trial judge to engage in a contextual weighing of the probative value and significance of the proffered evidence to the case against the potential prejudice that could flow from its admission.
R. v. Boswell 2011 ONCA 283 at para. 13.
R. v. Abbey (2009), 97 O.R. (3d) (C.A.), leave to appeal refused (2010), 409 N.R. 397
R. v. Mohan (1994) 80 (S.C.C.)
[13] Justice Watt provides a useful summary of the law related to qualifications of an expert in the 2013 edition of Manual of Criminal Evidence at page 428 as follows:
The party who tenders the witness as an expert is required to demonstrate that the witness has acquired a special knowledge of a particular topic by formal study, practical experience, or both, which extends beyond that of the trier of fact. The competence of the witness to give expert evidence, or to be qualified as an expert, does not depend on how the skill was acquired, only that it has been gained.
ANALYSIS
[14] The proposed evidence is relevant and necessary to explain the possible meaning of the word “flex” in the particular context. There is no exclusionary rule that applies.
[15] I am also satisfied that Sgt. Kerr is qualified based on his special training, experience and ongoing study to provide expert evidence in the assessment and interpretation of urban street language and coded words.
[16] The critical issue on this motion relates to the requisite balancing exercise. The proffered opinion is based on the following limited information:
i) 15 lines of text, divided almost equally by 24 hours, and
ii) The single word “flex”.
[17] Sgt. Kerr is firmly of the view that this refers to a plan to commit a robbery. He concedes that “flex” could, in isolation, refer to a variety of criminal and non-criminal objectives.
[18] The Crown proposed an alternative ruling that the witness be permitted to simply state that “flex” could mean either a criminal or non-criminal object without reference to his specific opinion that it refers to a robbery. In my view that further dilutes the meagre probative value of this evidence.
[19] I am not satisfied that the probative value or significance of the proffered evidence exceeds the potential prejudice that could flow from admission.
RESULT
[20] The Crown will not be permitted to lead the anticipated evidence of Sgt. Kerr at trial.
Mr. Justice B. P. O’Marra
Released: January 28, 2015
CITATION: R. v. Patterson, 2015 ONSC 660
COURT FILE NO.: CR-14-50000008
DATE: 20150128
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
OMAR PATTERSON
REASONS FOR JUDGMENT
Mr. Justice B. P. O’Marra
Released: January 28, 2015