CITATION: R. v. F.O., 2016 ONSC 724
COURT FILE NO.: YC 30000005-14
DATE: 20160128
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[Note: This proceeding is governed by publication restrictions under s. 110 of the Youth Criminal Justice Act.]
B E T W E E N:
HER MAJESTY THE QUEEN
T. Pittman & S. Heeney, for the applicant
Applicant
- and -
F.O.
(a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
G. Zoppi & C. Pearce, for the respondent
Respondent
HEARD: January 21, 2016
[Note: These reasons are governed by publication restrictions under s. 648 of the Criminal Code.]
Nordheimer J.:
[1] The prosecution seeks to elicit expert evidence in this trial on the subject of gangs. More specifically, the prosecution seeks to elicit expert evidence to establish the existence of a gang in the Chester Le area of Toronto and that the respondent is a member of that gang. At the outset I should say that, given that the accused is a young person, I shall refer to him throughout these reasons simply as the respondent.
[2] We began this application with what is essentially the first stage of the approach to expert evidence set out in R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330 (C.A.). To that end, the prosecution sought to qualify Det. Cst. Denis Katafigiotis of the Toronto Police Service as an expert in this field. Again, more specifically, the prosecution sought to qualify Det. Cst. Katafigiotis as an expert in the following areas: the nature and characteristics of Toronto street gangs; the culture and customs of Toronto street gangs; the identifiers of Toronto street gangs; the symbols employed by Toronto street gangs; the terminology of Toronto street gangs and the behaviours and activities of Toronto street gangs. The respondent challenged the qualifications of the officer as an expert to the extent to which the prosecution sought to qualify him, especially his ability to offer an opinion whether the respondent was a member of a particular gang. Consequently, I first dealt with whether the officer was a properly qualified expert. At the conclusion of the argument, I advised counsel that I was not satisfied on that requirement. I said that my reasons for so concluding would follow. I now provide those reasons.
Background
[3] The respondent faces trial on two counts of second degree murder, one count of attempted murder, one count of reckless discharge of a firearm and twenty-two counts of aggravated assault. The charges arise out of the events of July 16, 2012. On that day, a community barbeque/block party was being held on Danzig Street in the Scarborough area of Toronto. More than two hundred people were in attendance. At approximately 10:40 p.m., a gun fight broke out. A large number of shots were fired. As a direct consequence of the gunfire, two people were killed and more than twenty others were wounded. It is alleged that the respondent instigated this gunfight.
[4] The theory of the prosecution begins with the fact that there is a gang in the Danzig area (in northeast Scarborough) known as the "Galloway Boys". It is suggested that members of this gang were instrumental in putting on the block party in an effort to give back to the community in which they operate. The Galloway Boys have a longstanding rivalry with another gang in the area known as the "Malvern Crew". Members of the Malvern Crew were not welcome at the block party and this was made to known to them in different ways.
[5] Notwithstanding that warning, an alleged member of the Malvern Crew attended at the party. When his presence was discovered, he was told to leave the party or risk being killed. This male did leave but he was determined to return and exact revenge for the disrespect that he was shown by being thrown out of the party. This male circulated a broadcast message in which he sought assistance from other males in his quest to exact this revenge. It is alleged that the respondent, who was apparently already intending to go to the party, agreed to provide such assistance. In that regard, it is also alleged that the respondent is a member of a gang in the Chester Le area (in northwest Scarborough) that has ties to, or is aligned with, the Malvern Crew. It is suggested that the alliance between these gangs is the reason why the respondent would want to assist.
[6] It is alleged that the respondent had earlier sent out messages looking to acquire a gun and ammunition that he would then take to the party. It is further alleged that the respondent would have known that he was not welcome at the block party, either because he was not known to the organizers, or because they would have known that he was associated with a rival gang. It is also suggested that, because of these gang connections, the respondent would have known that, if he produced a gun and fired at anyone at the party, his attack would most certainly be met with return gunfire from the host gang members.
[7] The theory of the prosecution continues with the allegation that the respondent did arm himself; that he went to the party; that he was told by one of the organizers (who had a gun) to leave because he was not welcome at the party; that the respondent then produced his gun and fired at the person who had told him to leave; and that person, along with an associate, both produced firearms and opened fire in return. The resulting gunfight led to a large number of shots being indiscriminately fired in the general direction of the large crowd that was at the party. Two bystanders wound up being killed and more than twenty other persons (including the respondent and the male who told him to leave the party) were wounded.
Analysis
[8] Expert evidence is presumptively inadmissible: Abbey at para. 71. In order for a party to gain permission to lead expert evidence, four requirements must be met. However, even where all of these requirements are met, the court retains a residual discretion to refuse to receive the evidence – the so-called "gatekeeper" function: Abbey at para. 76. The four requirements are set out in R. v. Mohan, [1994] 2 S.C.R. 9. They are: relevance; necessity in assisting the trial of fact; the absence of an exclusionary rule; and a properly qualified expert. It is the fourth requirement that is first at issue here.
[9] It is of some importance to make clear what is meant by a "properly qualified expert". It will be obvious that not everyone is an expert. Even persons with considerable experience in an area or subject are not necessarily experts. The bar that must be overcome to qualify someone as an expert is necessarily a high one. I begin with what Sopinka J. said in Mohan at para. 27(QL):
Finally, 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. [emphasis added]
[10] This theme was picked up in R. v. A.K. (1999), 45 O.R. (3d) 641 (C.A.) where Charron J.A. said, at para. 103:
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.
[11] As has been pointed out in a number of cases, such as Mohan and Abbey, opinion evidence should not be too readily admitted under the guise of being expert evidence. This reticence to permit expert evidence is directly related to the known risks associated with such evidence. Those risks include the very real danger that a jury may effectively cede their obligation to decide the facts to the expert, thereby allowing the expert to essentially become the fact finder. Those concerns are particularly acute when it comes to evidence such as this where the prosecution seeks to label an accused person as a gang member. Such an allegation, emanating from a person who has been accepted by the court as an expert, will have a profound impact on the minds of jurors that may be impossible to dispel even with the most skillful of cross-examinations: Abbey at para. 90.
[12] I turn then to the qualifications of Det. Cst. Katafigiotis. The officer has been a member of the Toronto Police Service for almost fourteen years. For the first twelve years of his service, he was assigned to 11 Division[^1], first in primary response; then in the major crime unit; then in the bail and compliance unit; and then as a field intelligence officer. In 2014, he was transferred to the Guns and Gangs Task Force.
[13] Det. Cst. Katafigiotis gave evidence regarding his background as it relates to gangs. He said that, since he joined the Guns and Gangs Task Force, he has "debriefed" more than four hundred and fifty alleged gang members. This is in addition to the fifty to one hundred alleged gang members who he estimates that he debriefed when he was an officer at 11 Division. In addition, the officer has attended one gang investigators course at the Ontario Police College, one expert witness conference, and one Ontario Gang Investigators conference. These attendances have all been within the last two years.
[14] The officer said that, during his time in 11 Division, he gained a good understanding of criminal street gangs in that Division. At the same time, though, he acknowledged that 11 Division was not a particularly active Division in terms of gangs. The officer says that as an intelligence officer, and more broadly as an officer with the Guns and Gangs Task Force, he has gained an understanding of the street gang culture throughout the City of Toronto. In particular, the officer said in his report:
Throughout my policing career I have also gained knowledge on street gangs through speaking with other officers, reading police reports, researching the internet and speaking with confidential sources as well as gang members.
[15] In addition, the officer says that, since his transfer to the Guns and Gangs Task Force, in addition to debriefing gang members, he has shared information with other police units about gang activities and he has liaised with other police services about street gangs in Toronto.
[16] All of that said, there are a number of matters that are seen in other gang experts' qualifications that are absent from this officer's background to date. One is any specialized knowledge of gangs gained, for example, by undercover work related to gang activities. A second is any indication that the officer has gathered and analyzed information on gang activities from across Canada or the United States or any other country. A third is any attendance at any North American or other international conferences where knowledge and information on the activities and practices of gangs is discussed or presented by acknowledged experts in the field. A fourth is that the officer has never published any works on the activities of street gangs whether publicly or just for the purposes of the police community. A fifth is the officer's admission that he has not reviewed any academic or like literature on the subject of gangs.
[17] Another issue is with respect to the database of debriefings that the officer has collected and which appears to form a significant portion of the foundation for his state of knowledge and, therefore, for his qualification as an expert. First, the database was not produced to defence counsel so defence counsel has not had any ability to review the contents of that database and determine whether the information contained therein would sustain the level of knowledge that the officer says that he has gained and the opinions that he has formed. Second, the officer did not give any evidence that he had employed any techniques or methods to ensure, to the degree possible, the veracity of the information that he received through these debriefs. I contrast this absence of validation with the evidence that was given regarding the techniques and methods employed by Dr. Totten in Abbey to ensure that the methodology that he followed was valid: Abbey at para. 122. Third, while the officer said that his report had been reviewed by two other officers in the Guns and Gangs Task Force, who also deal with gangs, I was not provided with any information regarding the qualifications of those officers. Thus, I am in no position to conclude that their review would qualify as a proper "peer review" of the officer's analysis and conclusions.
[18] Of further relevance on the issue of qualifications, especially in light of the prosecution's intention to have the officer opine on the presence of gangs in the Chester Le area and the respondent's membership in one of those gangs, is that the officer acknowledged that he has never debriefed any self-identified members of any Chester Le gang. The officer further acknowledged that he does not know the history of any of the Chester Le gangs nor does he have any knowledge of their hierarchies.
[19] Finally, Det. Cst. Katafigiotis has never been qualified before as an expert in gangs. I will quickly add that that cannot be a determining factor since every expert has to have his or her first qualification. It does mean, though, that the officer cannot point to any other instance where his qualifications have been reviewed and have been found to be sufficient for the purpose of qualifying him to give expert evidence.
[20] As I earlier noted, it is important that the bar for qualifying persons as experts, and thereby permitting them to give opinion evidence to courts, especially to juries, be maintained at a high level in order to avoid the risks inherent in expert evidence. In my view, the officer does not currently have the degree of peculiar knowledge or special experience regarding street gangs that would qualify him as an expert on the subject, at least to the extent to which the prosecution seeks to qualify him. On that point, I contrast the background and experience of this officer with that of other police officers who have been qualified as experts on gangs in this court, e.g., R. v. Lindsay, [2004] O.J. No. 4097 (S.C.J.); R. v. Valentine, [2009] O.J. No. 5953 (S.C.J.); R. v. Sappleton, 2010 ONSC 5704, [2010] O.J. No. 5366 (S.C.J.).
[21] In reaching my conclusions, I am not saying that the officer might not be able to be qualified for the purpose of giving evidence on gangs in a very general way. Indeed, he might be able to be qualified in some of the areas for which the prosecution sought his qualification. That said, I would at his juncture add, on this particular point, that there is a somewhat fuzzy line when it comes to evidence about gangs between expert evidence and factual evidence. In my view, any given police officer, who has the appropriate degree of experience in a particular Division in this city, could give evidence regarding the existence of a gang in that Division, not as an expert but simply as a matter of fact. It becomes a different matter, however, when it is sought to move beyond that area of factual experience to evidence of a more general nature regarding gang identifiers or markers from which it is then sought to offer broader hypotheses about the existence and/or activities of gangs. That type of evidence then moves from fact to opinion and must meet a much higher threshold for admission.
[22] When one moves from evidence of gangs in general to the issue of identifying any given individual as a gang member, however, the evidence takes on an entirely different dimension. The expert then claims to be able to place the gang label on a particular individual – usually someone who is accused of very serious crimes. It is the type of evidence that, in a case such as this, carries with it the very real prospect that, if the opinion is accepted by the jury, they will immediately move from that acceptance to a finding of guilt: Abbey at para. 99.
[23] Given that risk, in order to find that the officer is a properly qualified expert entitled to give the opinions that he proposes to give, I would want very clear and compelling evidence as to his qualifications in general and, in particular, the criteria or methodology that the officer used to determine that the respondent is a member of a particular gang. I would also want clear and compelling evidence that those criteria or that methodology had been adequately tested to ensure the likelihood of a correct result.
[24] I have already pointed out some of the weaknesses or gaps in the officer's qualifications. Over and above that problem, however, is the fact that no evidence was provided that the officer had tested, or otherwise validated, any criteria or methodology that he employed to form the opinion that the respondent is a member of a particular Chester Le gang. In my view, both of those failings preclude any conclusion that the officer is a properly qualified expert entitled to give his opinions on such matters to this jury.
[25] It is for these reasons that I concluded that the officer could not be accepted as an expert in these proceedings.
NORDHEIMER J.
Released: January 28, 2016
Court File No.: YC 30000005-14
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
F.O. (a young person pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1)
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: 11 Division encompasses the southwestern portion of the "old" City of Toronto.