Court File and Parties

COURT FILE NO.: CR-15-50000659-0000 DATE: 20170216 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – THANH TUNG PHAN Respondent

Counsel: Stephen Byrne and Jay Spare, for the Crown Richard Posner and C. Zeeh, for the Respondent

HEARD: November 7, 8, 9, 10, 15 and 16, 2016 and January 4, 2017

RULING ON THE ADMISSIBILITY OF HISTORY OF GANG VIOLENCE

B. P. O’Marra J.

Overview

[1] In the evening of February 4, 2014, Peter Nguyen and his girlfriend, Andrea Villareal, dined at the Wildfire restaurant on Yonge Street in Toronto. They had driven there in her vehicle. Shortly before 9:20 p.m. they left the restaurant and walked towards her vehicle. Two men approached them on foot and began shooting at Peter Nguyen. The last shots were fired as he lay on the ground. Andrea Villareal was untouched. Peter Nguyen died of multiple gunshot wounds.

[2] The two gunmen fled on foot. A short distance away they both entered a black Mercedes GLK that stopped to pick them up. The GLK then fled the scene. The two gunmen have never been identified or apprehended.

[3] Unbeknownst to Andrea Villareal, a tracking device had been surreptitiously placed on her vehicle several days before February 4, 2014. As fate would have it, the respondent was a target of a drug investigation by Durham Regional Police Service (DRPS). Based on an authorization issued on January 14, 2014 pursuant to Part VI of the Criminal Code of Canada, R.S.C. 1985, c. C-46 and related orders, the DRPS had placed a tracking device in the respondent’s car and were surveilling him the evening of February 4, 2014. Approximately ninety minutes before the shooting of Peter Nguyen, they observed the respondent to bend down on his knees and appear to remove something from the parked Villareal vehicle. The respondent’s black Mercedes GLK was observed in the immediate area before and very shortly after the shooting of Peter Nguyen.

[4] The respondent is charged with the first degree murder of Peter Nguyen. Intercepted communications and other evidence linked him to the tracking device that was surreptitiously placed on the Villareal vehicle. The Crown alleged that he removed that tracking device before the shooting and then was the get-away driver for the two gunmen.

The Application

[5] The Crown alleged that the shooting of Peter Nguyen was part of a violent rivalry between two groups. Peter Nguyen was alleged to be associated to the Asian Assassinz. The respondent was alleged to be associated to the Chin Pac. The Crown sought to tender evidence of the history between the groups as relevant to motive and intention to commit murder. The defence opposed the application based on the prejudicial impact and lack of probative value of the evidence.

[6] On January 4, 2017, I ruled that the evidence was admissible. These are my reasons.

The History Between the Asian Assassinz and the Chin Pac

[7] The Crown filed an Application Record that detailed the proposed evidence. The parties agreed that I deal with the application based on that record and without the need for viva voce testimony. The respondent contested the admissibility of the evidence but did not dispute the narrative of events filed by the Crown.

[8] The Asian Assassinz and the Chin Pac have existed in Toronto since the early 2000s. The members or associates of each group were initially identified from photographs and other material posted on the internet. The persons associated to the Asian Assassinz included the following:

• Jamie Dang
• Michael Nguyen
• Peter Nguyen (the deceased in this case)
• Hung Phan
• Michael Quan
• Tien Pham
• Binh Hung Tran
• Dat Quoc Tang
• Thanh “Danny” Vo

The persons associated to the Chin Pac included the following:

• Thanh Tung Phan (the respondent)
• Steven Livingstone
• Thanh Ngo
• Thuan “Tony” Nguyen
• Duy Ly Nguyen
• Jerry Phan
• Jason To

The list of names associated to each group did not purport to be a complete list. The Crown did not tender any expert evidence to prove the existence of the two groups or who was a member or associate of each.

[9] The Crown stipulated that if the evidence was admitted, there would be no information or suggestion that the respondent was personally involved in any of the acts of violence. April 22, 2009 would show the respondent being seen with Steven Livingstone. They were in fact arrested together that day but there would be no information before the jury that the respondent was arrested or charged with any offences.

[10] The summary of information involving the two groups was gleaned from witness statements, police surveillance reports, police occurrence reports and court records. Some of the information is limited to showing two or more associates of one group or the other simply being seen together. Other incidents involve serious and escalating levels of violence up to and including homicides. Some of the most serious incidents of criminal behaviour remain unsolved, or at least did not lead to arrests and convictions.

[11] The following is a summary of the narrative basis for this application. I will at times refer to Chin Pac as “CP” and Asian Assassinz as “AA”:

• Commencing in April of 1999, the respondent was seen on occasion in the company of Steven Livingstone. On February 15, 2001 a four-page posting was retrieved from the internet. The title page referred to “CHINPAC” in large letters. A list of names appears on the second page and includes the respondent and Steven Livingstone.
• On March 22, 2001 Steven Livingstone is observed together with Duy Ly Nguyen. On May 10, 2005, Duy Ly Nguyen is photographed wearing a t-shirt that has “Chin Pac” on the back and “CP” on the front.
• On October 28, 2002 the respondent is seen together with Duy Ly Nguyen.
• On January 7, 2003 Steven Livingstone is seen together with Thanh “Tony” Nguyen.
• On March 12, 2003 Thuan “Tony” Nguyen (CP) was stabbed at 222 Spadina Avenue. Michael Nguyen (AA), Peter Nguyen (AA) and another young person were charged and found guilty of assault. Tony, Michael and Peter are now all dead.
• On March 26, 2003 a group photo of several young men was found which included Peter Nguyen and Michael Nguyen. This photo was found in Peter Nguyen’s school bag. This same photo was posted on the internet on August 6, 2003 with the words “Asian Assassinz” prominently featured.
• On July 3, 2010 Steven Livingstone (CP) was stabbed and had his face slashed at the Guvernment nightclub.
• A week later on July 10, 2010 Tien Pham was killed in the Excellent Chinese Food Restaurant on Spadina Avenue. He was sitting in the restaurant when a male approached him and shot him in the head. The male fled the scene and has not been identified. Tien Pham was the brother of Binh Hung Tran (AA). Binh Hung Tran was one of the persons in the group photo of the Asian Assassinz located on the internet.
• On August 11, 2011 Jerry Phan (CP) was shot at and his vehicle was hit on Lakeshore Blvd. W. Fingerprints of his brother, Thanh Phan (the respondent) were found on the vehicle.
• On January 1, 2013 Jerry Phan and his girlfriend Linda Phu were shot at while parking near the Guvernment Night Club at 132 Queens Quay East, Toronto. Jerry Phan drove from this location to St. Michael’s hospital for medical assistance. He was treated for gunshot wounds to his right arm/shoulder area and to his upper back right side. Linda Phu received a gunshot wound to her left arm and another to her lower left side abdomen/ribcage area.
• On February 24, 2013, at approximately 5:00 a.m., “Tony” Nguyen (CP) was shot and killed in the parking lot of the Vy Vy Restaurant and Lounge at 425 Signet Dr., Toronto. He was a friend of Steven Livingstone’s and was the victim of the attack by Peter Nguyen and Michael Nguyen (both AA) in March of 2003.
• On March 6, 2013 Steven Livingstone and Jerry Phan attended the funeral of Tony Nguyen.
• March 30, 2013 at about 8:00 p.m. Michael Nguyen (AA) was shot and killed in the parking lot of the Yorkdale Shopping Centre. “Danny” Vo (AA) was shot and injured. Danny Vo was in the group photo of the Asian Assassinz. Michael Nguyen was in possession of a loaded handgun and a blackberry phone. The phone seized from Michael Nguyen was decoded and analyzed. The phone contained encrypted communications with other people including with 647-631-3209 a number subscribed to Peter Nguyen (the deceased in this case). Some of these communications are:
  • Feb 9, 2013: making arrangements to pick up a tracker
  • Feb 13, 2013: discussing getting his bro to bring the trackers
  • Feb 14, 2013: about delivery of the trackers
  • Feb 19-20, 2013: concerning they found “Shorty’s” address
  • Mar 1-3, 2013: saying that he has gotten closer to “Shorty” and that he almost “got his bro and his girl smoked” (The Crown submits that this refers to Jerry Phan and his girlfriend)
  • Mar 20, 2013: that they all know what the Chin Pac guys look like and to print off the pictures to identify them
  • Mar 28, 2013: - about putting a tracker on “Shorty’s” car at a ball game, but they were too late
  • • they discussed the white guy with those “c guy”, named Steven, half white half Asian (The Crown submits that this refers to Steven Livingstone)
  • • they talked about whether the half breed could still make a move if “Shorty” was killed
• On May 11, 2013 at about midnight Jerry Phan was shot while sitting with Steven Livingstone, the respondent Thanh Phan and another person in the Joey’s Restaurant at the Yorkdale Shopping Centre. At least two males shot several times through the restaurant window at the group sitting at a table inside the restaurant. Jerry Phan was struck in the lower back by one bullet.
• On June 16, 2013 Byron Linares was unintentionally shot to death by his girlfriend at 35 Empress Avenue apartment #909, Toronto. In addition to the Glock 22 semi-automatic hand gun used to kill Linares, the police found the following in the apartment:
  • a photograph of Steven Livingstone (CP) and four photocopies of the drivers licence of the Respondent, Thanh Phan (CP). Binh Hung Tran's (AA) fingerprints were found on one of the photocopies of the driver's licence of Thanh Phan. Peter Nguyen's fingerprints were found on one of the photocopies of Thanh Phan's dr i vers licence and the Livingston photo.
  • 2 GPS tracker boxes
  • an e l ectronic counter-surveillance detector
  • an "Uzi" style sub machine gun
  • firearm magazines
  • seventeen 9 mm. l u ger cartri d ges
  • 3 air soft rifles
  • 2 black tactical hel m ets
  • 3 bullet proof vests
  • 5 pairs of bl a ck g l o ves
  • a black face mask
  • 3 tactical belts
  • 3 han d cuffs
  • 4 black tactical sweaters
  • 3 black tactical pan t s
  • a black balaclava
  • 2 pairs of tactical boots
  • 2 walkie-talkies
• On October 7, 8 and 17, 2013, Steven Livingstone and Jerry Phan are seen together.
• On December 6, 2013 Michael Quan was in a car on Lakeshore Blvd at Park Lawn Road in Toronto when he was shot in the leg. A fingerprint belonging to Jamie Dang (AA) was on the outside of his car.
• On December 25, 2013 at I 0:55p.m. Duy Ly Nguyen (CP) was shot 14 times in the driveway of a Scarborough residence. He survived. He had been seen on earlier occasions together with Steven Livingstone and the respondent.
• An hour and 25 minutes later Jamie Dang (AA) arrived at the Humber Finch Hospital with a gunshot wound. He falsely identified himself as Harrison Tseng with an Ontario Drivers Licence.
• On February 4, 2014 at approximately 9:20 p.m. Peter Nguyen was shot to death on Yonge Street by two males using 9mm and .45 calibre handguns. The respondent is charged with first degree murder for this homicide.
• On February 9, 2014 at approximately 10:34 p.m. Hung Pham (AA) was shot in his car in the area of Hargrove Lane and Bisset Avenue, Toronto. Attending police officers located several shell casings on the ground near the driver’s side of the motor vehicle. The front driver side window was shattered and the vehicle was still running. Hung Pham was pronounced dead at the scene. He appears in the group photo of the Asian Assassinz with Peter Nguyen. Seven 9mm cartridge casings were located on the ground outside the driver’s side of the vehicle. These shell casings matched the 9mm shell casings found at the scene of the shooting of Peter Nguyen five days earlier.
• On February 16, 2014 Dat Quoc Tang attended the funeral of Peter Nguyen.
• On March 21, 2014 Jason To (CP) was arrested and his Toyota Camry automobile was searched. A loaded Glock .40 calibre handgun, a black mask, and a picture of Peter Nguyen (AA) - deceased, Dat Quoc Tang (AA) and Binh Hung Tran (AA) was located. This same Toyota was seen leaving Thanh Phan’s condominium building at 90 Broadview Avenue in the early hours of February 5, 2014, just hours after Peter Nguyen was killed.
• On November 3, 2014, Jerry Phan (CP) was shot and killed in Richmond Hill. He was sitting in his car in a restaurant parking lot when he was shot.

The Law

[12] Certain types of evidence are admissible for a specified limited use by the trier of fact. Juries are routinely instructed as to the proper use they may make of such evidence as well as any prohibited use. The following are examples of such evidence:

• The criminal record of an accused who testifies in his or her own defence;
• After-the-fact conduct; and
• Similar acts or other discreditable conduct.

[13] An important premise of trial by jury in Canada is the presumption and confidence that jurors will follow legal instructions as to the limited permissible use of certain types of evidence.

[14] Character evidence that shows only that an accused is the type of person likely to have committed the offence charged is usually inadmissible. One of the exceptions under which evidence of bad character of the accused can be adduced is where it is relevant to an issue in the case and the probative value exceeds the prejudicial effect, R. v. S.G.G., [1997] 2 S.C.R. 716 at para. 63; R. v. Morris, 7 C.C.C. (3d) 197 (SCC) at pp. 106-7.

[15] Evidence of motive is admissible to prove the doing of an act as well as the intent with which the act is done: R. v. D.S.F. (1999) at para. 23; R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.) at p. 167.

[16] In R. v. Ma, [1978] O.J. No. 1425 (Ont. C.A.), the principal ground of appeal related to evidence of the alleged association of the appellant with a criminal organization known as Kung Lok, part of the Triad Society, a secret society which originated in China some five centuries ago and operated within the Chinese community in Toronto. In dismissing the appeal, the Court held as follows at paras. 20 and 28:

20 The evidence objected to would be clearly inadmissible if it proved nothing more than the bad character of the appellant, and thus that he was more likely to commit the offence. But when it was tendered for the purpose of allowing the jury to draw an inference of motive, a material issue in this case, it became admissible.

28 Clearly the evidence in dispute in this case has more than trifling probative force. It places the charge against the appellant in perspective; without such obviously relevant evidence, the jury would have decided the question of guilt in a vacuum. The trial judge, in my view, properly limited the use to be made of the impugned evidence, and warned the jury to avoid any prejudicial use, by saying:

“First of all I want to make some general remarks about the use of the evidence of association of this accused person with Kung Lok. This evidence cannot be used to infer that the accused is the kind of person likely to commit this offence. Now I will repeat that because I think it is fundamental. The evidence cannot be used to infer that the accused is the kind of person likely to commit this offence. In our criminal law we do not have kinds of people who commit offences. Individuals commit offences not classes or kinds of persons. So that is the basic distinction there. But it can be used in my opinion, and if you find the evidence convincing, to show possible motive on the part of the accused. To help explain, if you wished to so use it, what happened in apartment 807, and in the Holiday Inn, and generally what the intent of the accused in coming to St. Catharines and doing what he did, depending on what you find as a fact that he did do.”

[17] In R. v. McLeod, [1982] O.J. No. 59 (Ont. C.A.), the contentious evidence related to what the Court described as “enmity” between members of Satan’s Choice and the Golden Hawks motorcycle gangs. The Court approved the admission of this evidence and the accompanying instruction at para. 8:

8 The evidence of enmity between the clubs was admissible. The case could not be realistically assessed by the jury without considering the fact that the appellants were members of Satan’s choice and the deceased was a Golden Hawk. In our view the use to which this evidence could be put was adequately dealt with in the charge to the jury with respect to its ultimate potential bearing on the relevant issue of motive. When the charge is read as a whole we are satisfied that the jury were adequately instructed that the evidence of enmity was not to be automatically applied to each accused (see, particularly Vol. 15, p. 2972, lines 23-26) and that the nature of the association among the members of Satan’s Choice to make the evidence relevant to an accused was a question of fact for the jury (Vol. 15, p. 2958, lines 5-18). Helpful reference may be made to Caccamo v. The Queen (1975), 21 C.C.C. (2d) 257 and R. v. Ma (1978), 44 C.C.C. (2d) 511.

[18] In R. v. Boucher (2000), 149 CCC (3d) 429 (Que C.A.), the contentious evidence related to the status of the accused in a criminal organization. The Court confirmed the admissibility of this evidence and the limiting instruction given by the trial judge at paras. 11-13:

11 As mentioned above, the Crown’s theory of the case was that the respondent had ordered the murders of two prison guards, murders carried out by members of the criminal organization which the respondent directed and for the end of this organization because it was so acting in order to prevent members from becoming informants. Therefore, the evidence of the respondent’s status within this organization was admissible and the trial judge correctly instructed the jury on the effect of this evidence by indicating that the jury could “infer” therefrom that the actions of the members of the organization were done [translation]:

…not only to the knowledge, but with the concurrence or desire of the person or persons who are at the upper echelons (of the organization). This is an inference which you may possibly make.

12 This instruction cannot be successfully attacked and the appellant cannot complain in this regard. However, the Crown argues that the trial judge erred when he warned the jury of the danger of being influenced by this evidence which he characterized as “disposition” on the part of the respondent, the head of a notorious criminal organization, to live off crime.

13 The trial judge had to charge the jury [translation] “that we do not judge people for who they are, rather we judge them for what they do”. This is the principle which has been settled by the jurisprudence, that is, that appropriate instructions are required once evidence of disposition is ruled admissible, in order to avoid the jury’s attention being diverted from the primary subject of its deliberations, that is the act for which the accused has been charged: R. v. G. (S.G.), supra, p. 748, and R. v. B. (F.F.), [1993] 1 S.C.R. 697 p. 733, 79 C.C.C. (3d) 112, or that the accused not “be found guilty because he is a bad person”.

[19] The admissibility and limited use of gang evidence in R. v. Sarrazin, [2000] O.J. No. 6047 (O.S.C.) closely resembles the case before me. That case involved the execution-style shooting of an alleged member of one street gang by alleged members of a rival gang. There was evidence of gang warfare being waged for a number of years. The Crown submitted that the evidence was relevant and probative on a number of material issues, including:

• Assisting the jury in understanding the context and background of the incident;
• Motive; and
• Animus and intent.

The Court at paras. 44 and 45 held that the evidence was admissible with the appropriate limiting instruction:

44 On the other hand, to deprive the jury of evidence of what really happened on that evening, evidence that provides context and background, evidence which would be of assistance for motive, would be to deprive the jury of crucial facts as to what took placed on February the 19 th , 1998.

45 It is obvious that the compromise that has to be arrived at. The jury should hear the evidence, but it should be done in a context where every effort is made to minimize and reduce the prejudicial effect of the evidence. I will be asking, of course, for the assistance of counsel to do that. For instance, all mention by these witnesses of prior incidents or criminal record involving the accused should be curtailed.

[20] An appeal by Sarrazin, 2010 ONCA 577 was allowed on other grounds. The Court of Appeal referred to the gang evidence at para. 18:

18 The “gang” evidence was obviously potentially prejudicial to the appellants’ right to a fair trial. The evidence was also central to the jury’s understanding and assessment of the allegations advanced by the Crown. The trial judge was obliged to address both aspects of the evidence. He was alive to the potential prejudice and excluded some of the evidence tendered by the Crown either because it could not be properly challenged on cross-examination or because it was not necessary to a proper understanding of the Crown’s allegation with respect to the motive for the murder. As indicated above, I see no error in the trial judge’s rulings on the admissibility of the evidence. The trial judge also told the jury, both when the “gang” evidence was adduced and in his closing instructions, that the “gang” evidence was admissible exclusively on the question of motive. He emphatically cautioned the jury against inferring guilt based upon the appellants’ criminal activities and gang association.

[21] A further appeal by the Crown to the Supreme Court of Canada at 2011 SCC 54 was dismissed without further mention of the gang evidence.

Analysis

[22] The respondent submits that the probative value of this evidence is much less than the potential prejudice. He refers to some events long before the shooting of Peter Nguyen and some after the event as having little or no probative value. In my view a long-term perspective is necessary to assess the interaction of the two groups. Events after the death of Peter Nguyen, including the shooting death of the respondent’s brother Jerry Phan on November 3, 2014, are part of a continuing saga of revenge between these two groups.

[23] The Crown is not obliged to prove issues related to this evidence beyond a reasonable doubt: R. v. Morin, [1988] 2 S.C.R. 345 at paras. 21 and 28. The evidentiary record to be presented by the Crown provides a reasonable basis for the jury to consider the following:

• The respondent and Peter Nguyen were members or associates of the Chin Pac and Asian Assassinz respectively; and
• The violent history between the groups or gangs provided a motive for the respondent to participate in the murder of Peter Nguyen.

[24] In his post-arrest interview on April 10, 2014, the respondent specifically refers to the earlier occasion when his brother Jerry had been shot on May 11, 2013 and survived. He also referred to his brother and himself as being very conscious of being followed which led them to drive in a circuitous fashion.

[25] On the issue of motive and intention to participate in the murder of Peter Nguyen, the jury could reasonably consider the following:

1. The three attempts to kill his brother Jerry Phan by gunshots. The incident on January 1, 2013 involved both Jerry Phan and his girlfriend sustaining gunshot wounds but surviving. The last incident occurred in May of 2013 when the respondent and Steven Livingstone were also present.
2. Attacks by members of Asian Assassinz against associates of Chin Pac, including:
   • Tony Nguyen in March of 2003;
   • Steven Livingstone in July of 2010;
   • Thuan “Tony” Nguyen who was shot and killed in February of 2013; and
   • Duy Ly Nguyen on December 25, 2013.

These incidents would have to be viewed in the entire context of violent interplay between members of the two groups.

[26] If this evidence were not left with the jury they would be left to consider an apparently senseless shooting that involved unknown shooters and an alleged party who had no apparent motive. The absence of a proven motive would tend to support the denials by the respondent in his post-arrest statement. If they receive this evidence they may or may not find it is evidence of a motive. To exclude this evidence from their consideration on the issue of motive and intention would leave them to decide the case “on the basis of some artificially crafted, antiseptic version” as referred to by Dambrot J. in R. v. Riley et al. at para. 38.

[27] As this evidence is being tendered I would provide the following mid-trial instruction:

The Crown is about to tender evidence that Thanh Phan and Peter Nguyen were each associated to separate groups and that there was a history of violent incidents between the groups. I understand that the Crown will contend that this evidence relates to a potential motive for the homicide you will be dealing with. In my final instructions I will set out the limited use you may make of this evidence.

At this time, and again in my final instruction, I want to make clear what you must not use or consider this evidence for. You must not consider this evidence in any way as showing that Thanh Phan is a violent or bad person, or that he is the type of person who would commit the crime alleged in this trial. Further, you must not consider or use this evidence to find that Thanh Phan was involved in or was responsible for any of the violent acts which the Crown alleges were committed by the Chin Pac.

[28] My final instructions to the jury related to motive and the violent history between the two groups will be as follows:

Motive is a reason why somebody does something. It is not one of the essential elements that Crown counsel must prove. In other words, you do not need to find a motive for what Thanh Phan allegedly did in order to find him guilty of murder. It is just part of the evidence – one of many things for you to consider as you determine whether he is guilty or not guilty. Evidence of motive may help you decide this case. For example, if a person had a reason for doing something, you might conclude that it was more likely that he did that thing and did so intentionally. On the other hand, if you find that a person had no reason to do something, you might have a doubt about whether he did that thing or did it intentionally.

A person may be found guilty of an offence whatever his motive, or even without a motive. Absence of proven motive, however, is a circumstance for you to consider – one which, you may find, tends to support the presumption of innocence and Thanh Phan’s denial of guilt when he was interviewed by the police. A person may also be found not guilty of an offence even with a motive to commit it.

The Crown alleges that the motive for this crime and the alleged involvement of Thanh Phan is based on the violent history of interaction between two groups of men over several years.

Proof of motive is not an essential element of this alleged offence that must be proven by the Crown for there to be a finding of guilt. However, if you should find that there was such a motive, that may assist you in assessing whether the actions or omissions of Thanh Phan were with the intention and for the purpose of assisting others to kill Peter Nguyen.

The Crown has filed evidence that there were two groups of men, the Chin Pac and the Asian Assassinz, who carried out violent actions against members of the other group over a number of years. It is not suggested that Thanh Phan committed any of the violent actions. The evidence filed by the Crown indicates Peter Nguyen was a member of the Asian Assassinz and Thanh Phan was a member of the Chin Pac.

You should consider whether Thanh Phan and Peter Nguyen were associated to the two groups referred to and the series of incidents. These are not facts that the Crown is required to prove beyond a reasonable doubt. Even if Thanh Phan was associated to the Chin Pac, that does not necessarily mean that he would have a motive for the crime alleged.

I remind you that motive is not an essential element of the crime alleged in this case. The Crown is not obliged to prove there was a motive. However, if you find that there was a motive for Thanh Phan to commit this crime, it may assist you in deciding whether the Crown has proven beyond a reasonable doubt that what he did or did not do was with the intention and for the purpose of assisting others to kill Peter Nguyen on February 4, 2014.

There is an important limit on the use you may make of the evidence of the history between these two groups. You may not and must not use this evidence to consider that Thanh Phan is the type of person who would commit this or any crime. The issue is whether this evidence discloses a motive for Thanh Phan to participate in the crime alleged.

If you are satisfied that Thanh Phan was associated with the Chin Pac, you must not draw any adverse or negative inferences against him based on the conduct of other persons in that group. You may not approve of the lifestyle and choices made by some members of either group. That would not be a basis for you to draw any negative inferences against Thanh Phan. The only limited use you may make of this evidence is to consider whether it indicates a motive for Thanh Phan to be involved in the killing of Peter Nguyen.

In Canada, no one should be found guilty of a crime based on the type of person they are or who they associate with. The issue for you is whether the Crown has proven this charge, or one of the included offences, beyond a reasonable doubt.

[29] For the above reasons the application of the Crown to tender this evidence before the jury is granted.

B. P. O’Marra J.

Released: February 16, 2017