CITATION: R. v. McGean et al, 2016 ONSC 1460
COURT FILE NO.: 121/15
DATE: February 29, 2016
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
T. Gilliam and N. Gilks, for the Crown
Crown
- and -
Randy McGean. Isaac Lucas, Keith Earle, Lyle Gough, and Dan Carley
Accused
J. Stephenson, for Randy McGean
M. Wendl, for Isaac Lucas
L. Giordano, for Lyle Gough
Keith Earle and Dan Carley, Self-represented
HEARD: February 8, 10 and 11, 2016
The Honourable Justice J.R. Henderson
PRETRIAL MOTION # 1
EXPERT EVIDENCE
INTRODUCTION
[1] In this pretrial motion the Crown requests a ruling with respect to the admissibility of opinion evidence from two expert witnesses, John Margetson (“Margetson”) and Robert McCleary (“McCleary”).
[2] It is proposed that Margetson give evidence in the fields of drug hierarchy, forms of drugs, drug quantities, drug pricing, and drug slang. The accused do not dispute Margetson’s qualifications, but take issue with the reliability of some aspects of his testimony as to drug slang.
[3] It is proposed that McCleary give evidence in the fields of the culture and structure of outlaw motorcycle gangs, the nature of support clubs, the history and background of the Black Pistons Motorcycle Club (“the Black Pistons”) and the Outlaws Motorcycle Club (“the Outlaws”), and whether the Black Pistons constitute a criminal organization. The accused submit that McCleary’s evidence is neither relevant nor necessary, and further that McCleary is not properly qualified to give this opinion evidence.
THE BACKGROUND
[4] The accused were arrested as a result of a Niagara Regional Police Service (“NRPS”) investigation, known as Project Resurgence, which was a lengthy investigation into the activities of the Black Pistons in St. Catharines. A large portion of the investigation was done by way of authorized intercepted communications and by surveillance.
[5] It is the Crown’s theory that the Black Pistons was a support club of the Outlaws, and that plans had been made for some members of the Black Pistons to become members of the Outlaws. The Crown alleges that one member of the Outlaws, Mario Macedo (“Macedo”), came to St. Catharines to oversee the patch over of some members of the Black Pistons. While in Niagara, Macedo arranged to supply the Black Pistons with a quantity of cocaine. This in turn led to other criminal activities.
[6] There are 20 counts in the Indictment, including charges of conspiracy to traffic in narcotics, possession of narcotics for the purpose of trafficking, possession of proceeds of crime, and possession of prohibited weapons.
[7] The Indictment also includes charges that the accused committed criminal offences for the benefit of, at the direction of, or in association with a criminal organization contrary to s. 467.12 of the Criminal Code of Canada. It is the theory of the Crown that the Black Pistons of St. Catharines was a criminal organization and that the accused operated as members of that organization.
[8] The definition of a criminal organization is set out in s. 467.1(1) as follows:
criminal organization” means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
THE LAW REGARDING EXPERT EVIDENCE
[9] In the case of R. v. Mohan (1994), 89 C.C.C. (3d) 402 (SCC), Sopinka J. at para. 17 stated that the admissibility of expert evidence depends upon the application of four criteria, namely: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert.
[10] In the case of R. v. Abbey (2009), 2009 ONCA 624, 246 C.C.C. (3d) 301 (OCA), Doherty J. refined the Mohan test, by suggesting a two-step process. In reference to the Mohan criteria, at para. 76, Doherty J. wrote:
Using these criteria, I suggest a two-step process for determining admissibility. First, the party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. For example, that party must show that the proposed witness is qualified to give the relevant opinion. Second, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This "gatekeeper" component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence.
[11] This two-step process for admissibility of expert evidence has been adopted by the Supreme Court of Canada in the case of White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 22 to 24.
MARGETSON’S EVIDENCE
[12] Margetson has been a police officer with the Toronto Police Service (“TPS”) since 1990 and has a great deal of experience in drug enforcement. He has operated as an undercover officer, a detective, and a sergeant. Currently, he is a Team Supervisor for the Toronto Drug Squad. All of the accused acknowledged that Margetson has the expertise to provide opinion evidence with respect to illegal drug activities.
[13] The main concern raised by the accused was that some of the terms of drug slang that were translated by Margetson were not common terms. For example, Margetson conceded that the use of the word “caramel” to describe heroin was not a common term and that it could apply to other drugs. In addition, Margetson acknowledged that his experience with illegal drug transactions is based in Toronto, not Niagara, and that some of the drug terms may be different in the two areas.
[14] In my view, all of the proposed evidence of Margetson meets the Mohan criteria, and meets the minimum threshold of reliability required for admission into evidence. Any concerns as to the reliability of some of Margetson’s evidence goes to the weight of the evidence, not the admissibility. Further, I find that the proposed evidence would be very beneficial to the trier of fact and that any potential harm caused by its admission would be minimal.
[15] Accordingly, I will permit Margetson to give opinion evidence in the fields of drug hierarchy, the different forms that drugs take, drug quantities, drug pricing, the use of cutting agents and acidifiers, drug distribution methods, drug packaging, and drug slang.
McCLEARY’S EVIDENCE
- Qualifications
[16] McCleary has been a police officer with the Ottawa Police Service (“OPS”) since approximately 1997 when he started working as a frontline patrol officer. He joined the OPS Drug Unit in 2005 and remained with that unit until December 2010. From January 2011 to the present time he has been an investigator in the Provincial Biker Enforcement Unit (“BEU”) in conjunction with the Ontario Provincial Police.
[17] He has been the primary investigator for the Ottawa chapter of the Outlaws since October 2011, and he has been the primary investigator for the Black Pistons throughout Ontario since October 2013. I note that the arrests of the accused in this case occurred on November 6, 2013, very shortly after McCleary became the primary investigator for the Black Pistons.
[18] McCleary testified that he has become familiar with outlaw motorcycle gangs, known as “OMGs”, through his experience, education, and research. “OMG” is a term that is used to refer to an assortment of outlaw motorcycle clubs, including the Hell’s Angels and the Outlaws, whose members have been described as “non-mainstream”.
[19] As to his investigative experience, other than Project Resurgence, McCleary has participated in three police investigations involving OMGs. McCleary was involved in an investigation of the Nomads chapter of the Hell’s Angels, known as Project Finale, which resulted in arrests in September 2011. He was involved in Project Anarchy, another investigation into the Hell’s Angels, that resulted in arrests in January 2014. He was also involved in Project Batlow, an investigation into the Hell’s Angels that commenced in October 2013 and ended in February 2015.
[20] Further, since approximately 2009 McCleary has taken some educational courses that focused on OMGs. Since his transfer to the BEU in 2011 he has annually attended educational conferences with respect to OMGs both at the Canadian and the international level. Since that time he has also been involved in annual BEU frontline training conferences regarding OMGs.
[21] Still further, McCleary has attended and monitored various events and activities of OMGs, including motorcycle club parties, club runs, and motorcycle shows. In total he has attended approximately 47 such events, 22 of which were attended by the Outlaws, and 11 of which were attended by the Black Pistons.
[22] I also accept McCleary’s testimony that, in order to remain current in the field, he has read literature with respect to OMGs, and he has reviewed Internet articles with respect to same.
[23] Lastly, McCleary testified, and I accept, that he has confidentially interviewed five former members of the Black Pistons about the Black Pistons and Black Pistons club business. The identity of these former members of the Black Pistons remains confidential, and McCleary acknowledged that the co-operation he received from these interviewees varied from source to source.
- The Proposed Evidence
[24] McCleary has provided a written report as to his proposed evidence. In my opinion the report tends to drift from the general to the specific and back again. Therefore, it is not always easy to ascertain whether any particular comment in the report relates to OMGs generally, or to the Outlaws, or to the Black Pistons.
[25] Furthermore, in his report McCleary acknowledges that his knowledge and experience with respect to the Black Pistons is limited. At page four of his report, McCleary wrote as follows:
The Black Pistons Motorcycle Club (hereinafter “the Black Pistons”) is a relatively new phenomena in Canada. Project Resurgence constitutes the first investigation to target them directly....
As a result I do not offer an opinion on the Black Pistons per se given its relative lack of history in this country. Instead, I have structured my report to provide the Court with information outside the Court’s experience and knowledge concerning “support clubs” like the Black Pistons...
[26] Accordingly, for the purpose of this pretrial motion I will break McCleary’s proposed opinion evidence into discrete topics as follows:
Historical overview of outlaw motorcycle gangs, including the Outlaws.
The culture and structure of outlaw motorcycle gangs, including patching over, colours, chapters, and church.
The definition of a support club, and its relationship with a parent club.
Historical overview of the Black Pistons.
The culture and structure of the Black Pistons.
The relationship between the Black Pistons and the Outlaws.
Whether the Black Pistons constitutes a criminal organization.
- Analysis
[27] The accused submit that McCleary’s evidence does not meet the Mohan criteria of relevance, necessity, or a properly qualified expert. The accused further submit that I should exercise my role as a gatekeeper and prohibit McCleary from testifying as to the ultimate issue given the limitations in his evidence.
[28] I have no difficulty accepting that the proposed evidence meets the criteria of relevance and necessity in this case. McCleary’s opinions are relevant as they go to the heart of the charges before the court, and further, much of McCleary’s evidence is necessary as the inner workings of OMGs would be well beyond the knowledge or experience of a trier of fact.
[29] In my view, the real issue here is whether McCleary has the experience, education, and knowledge such that the court should permit him to offer opinion evidence on these topics. That is, the question is whether he is a properly qualified expert for the purpose of the proposed evidence.
[30] The criterion of a “properly qualified expert” was considered by the Ontario Court of Appeal in the case of R. v. K. (A.), 45 O.R. (3d) 641. At para. 103 of that case, Charron J. wrote the following:
As stated in Mohan, "the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify." This criterion is usually not difficult to apply. However, it must not be overlooked. Opinion evidence can only be of assistance to the extent that the witness has acquired special knowledge over the subject-matter that the average trier of fact does not already have. If the witness's "special" or "peculiar" knowledge on a subject-matter is minimal, he or she should not be qualified as an expert with respect to that subject.
[31] I find that McCleary has general knowledge and experience with respect to OMGs, the Outlaws, and the Black Pistons. I accept that McCleary’s knowledge and experience is greater than that of the trier of fact, and many aspects of his proposed evidence will be useful. However, I also accept the accused’s submission that, for some parts of the proposed evidence, McCleary’s peculiar or special knowledge is minimal.
[32] McCleary’s knowledge about motorcycle clubs has only been directly acquired since January 2011 when he joined the BEU, and he began to attend annual conferences about OMGs. I accept that during the four years between the start of his work with the BEU and the date of his expert report McCleary acquired general knowledge about OMGs, the Outlaws, and the Black Pistons. But, McCleary clearly does not have the same extensive knowledge about any particular motorcycle club as, for example, the RCMP officer in the case of R. v. Lindsay, [2004] O.J. No. 4097, who provided expert evidence with respect to the Hell’s Angels based on 30 years of police work, most of which was spent investigating the Hell’s Angels.
[33] Further, although McCleary has general knowledge about OMGs, most of his investigative experiences relate to the Hell’s Angels, not the Outlaws or the Black Pistons. McCleary is very familiar with the Nomads chapter of the Hell’s Angels through his work with the OPS. Moreover, the three large scale BEU investigations in which he was involved were all with respect to the Hell’s Angels. Project Resurgence, which resulted in the present charges, is the only investigation in which McCleary was involved that related to the Outlaws or the Black Pistons, and his involvement in Project Resurgence was minimal, primarily that of an observer.
[34] Still further, McCleary conceded that some of his knowledge of the Black Pistons and the Outlaws comes from literature and Internet articles, and that he could not necessarily rely on those sources to provide accurate information. In fact, with respect to the Internet articles, McCleary conceded that he was not even aware of the identity of the authors of the articles.
[35] Lastly, and most significantly, in his report McCleary acknowledged that the information and knowledge with respect to the Black Pistons was limited because of the Black Pistons’ lack of history in this country. Thus, McCleary specifically stated in his report that he cannot offer an opinion on the Black Pistons per se.
[36] In consideration of all these factors, I find that McCleary is qualified to provide opinion evidence with respect to the history, culture, and structure of OMGs in general. I also find that McCleary is qualified to provide opinion evidence with respect to the history, culture, and structure of the Outlaws. Further, I find that he can also provide opinion evidence in the form of a historical overview of the Black Pistons.
[37] However, I find that McCleary does not have the minimum qualifications that would permit him to give opinion evidence regarding the specific culture and structure of the Black Pistons or its relationship with the Outlaws. McCleary can testify, of course, as to factual observations with respect to the Black Pistons, but not as to his opinion about what he has observed.
[38] Regarding the ultimate issue question, I accept that courts should take care to ensure that the trier of fact, not the expert, makes the final decision in the case. I also accept that there is no general rule excluding expert evidence in respect of the ultimate issue. See the decisions in R. v. Burns, [1994] 1 S.C.R. 656 (SCC) at para. 25, and R. v. Bryan, [2003] O.J. No. 1960 (OCA) at para. 17.
[39] In the present case, the ultimate issue is whether the Black Pistons fall within the definition of a criminal organization as set out in the Criminal Code. I find that, given the limitations on McCleary’s opinion evidence, it would not be proper to permit evidence on that issue from this expert in this case. Thus, in consideration of my role as a gatekeeper, as discussed in the Abbey case, I will not permit expert evidence on the ultimate issue.
- Conclusion regarding McCleary’s Evidence
[40] In summary, in reference to the categories discussed earlier, I will permit McCleary to provide opinion evidence on the following topics:
Historical overview of outlaw motorcycle gangs, including the Outlaws.
The culture and structure of outlaw motorcycle gangs, including patching over, colours, chapters, and church.
The definition of a support club, and its relationship with a parent club.
Historical overview of the Black Pistons.
[41] I confirm that I will not permit opinion evidence on the following topics:
The culture and structure of the Black Pistons.
The relationship between the Black Pistons and the Outlaws.
Whether the Black Pistons constitutes a criminal organization.
[42] I acknowledge that there may be certain parts of McCleary’s testimony that could fall into more than one of the abovementioned categories. In those instances I will make more specific evidentiary rulings during the course of the trial.
CONCLUSION
[43] For these reasons, I find that both Margetson and McCleary are qualified to provide opinion evidence in this case. However, McCleary’s proposed evidence will be restricted as set out above.
Henderson, J.
Released: February 29, 2016
CITATION: R. v. McGean, 2015 ONSC 1460
COURT FILE NO.: 121/15
DATE: 2016-02-29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Crown
- and –
Randy McGean. Isaac Lucas, Keith Earle, Lyle Gough and Dan Carley
Accused
PRETRIAL MOTION # 1
EXPERT EVIDENCE
Henderson, J.
Released: Feburary 29, 2016