COURT FILE NO.: CR-15-5000062 DATE: 20170112 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Michael Monney, Yasin Abdulle, and Keon Bryce Defendants
Counsel: Paul Zambonini and Andrea MacGillivray, for the Crown Anne Bergenstein, for the Defendant Michael Monney Brian Ross and Christopher Rudnicki, for the Defendant, Yasin Abdulle Jennifer Myers and Adam Stubbs, for the Defendant, Keon Bryce
HEARD: October 17, 20, 24, 25, 27, 28, and November 17, 2016
PRE-TRIAL application #2 ADMISSIBILITY OF EXPERT TESTIMONY AND EVIDENCE ANCILLARY THERETO RE URBAN STREET GANGS reasons for decision
CLARK J.
Introduction
[1] On August 12, 2013, in northwest Toronto, Yusuf Ahmed was shot to death. The accused were charged with his murder. The Crown contends that the motive was animus between two street gangs that exist in that area of the city, the Tandridge Cripz and “A-block”. The Tandridge Cripz are said to dominate a Toronto Community Housing complex comprised of a high-rise apartment building situate at 75 Tandridge Crescent and a series of townhouses that flank the building to the north and east (“Tandridge”). A-block purportedly dominates a nearby housing complex consisting of three high-rise apartment buildings, situate at 234, 236 and 238 Albion Rd. and an adjacent building at 2 Armel Court (“Albion”). The two complexes are separated by a golf course. On October 17, 2016, and over the course of several subsequent days, the court heard a pre-trial application concerning the admissibility of expert evidence on the subject of urban street gangs.
[2] To assist in proving this motive, the applicant sought to have the court qualify Sgt. Aman Nasser of the Toronto Police Service (“TPS”) as an expert on the subject of urban street gangs. As part of the application, the applicant sought to be permitted to adduce evidence of (i) a series of violent incidents that occurred in Tandridge and Albion in the months leading up to the homicide and (ii) a number of YouTube videos that purport to show the three accused and numerous other alleged members of the Tandridge Cripz rapping in a gang context. The applicant sought to have Sgt. Nasser refer to the incidents and the videos as part of his explanation of the street gang phenomenon so as to assist the jury to conclude that these gangs exist, that they are criminal organizations as defined by the Criminal Code, and that the incidents leading up to and including the homicide were instances of inter-gang rivalry.
[3] On October 27, for reasons I will later explain, I ruled that the proposed evidence was admissible, that Sgt. Nasser was qualified to give that evidence, and that the applicant could adduce evidence of the earlier incidents and six of the aforementioned videos.
[4] On October 28, the respondents each made a number of admissions, on the strength of which they asked the court to reconsider its ruling on the admissibility of the videos. After hearing argument, I reversed my earlier ruling and held that, in light of the admissions, the probative value of the videos had diminished to the point that it was outstripped by their potential prejudice.
[5] On November 17, 2016, in the midst of cross-examining the accused, Yasin Abdulle, the Crown applied to be permitted to play three of the gang/rap videos in the presence of the jury and to cross-examine the accused on certain aspects of them. I refused that application.
[6] The following are my reasons for decision on all the aforementioned applications.
The Facts
[7] Although some viva voce evidence was heard on the original application, in the main the evidentiary foundation was put before me by way of the applicant’s application record, as supplemented by certain electronic files contained on a memory stick and a compact disc.
Background to the Homicide
[8] Upon learning of the homicide, members of the Toronto Police Service (“TPS”) assigned to investigate suspected that members of the Tandridge Cripz might be responsible. Their suspicion was based on the following series of incidents that had taken place in the two neighborhoods over the spring and summer of 2013.
February/March 2013
[9] Sometime in late February or early March of 2013, TPS received information from a confidential informant (“CI”) that Keon Bryce had encountered Yahya Diblawe and Mahad Diblawe, both habitués of Albion, at a plaza at 359 Albion Road. This plaza is located between Tandridge and Albion and is frequented by persons from both complexes. According to the CI, the men told Bryce that the plaza was their neighbourhood and that he should go back to his “block”.
March 10, 2013
[10] On March 10, 2013, TPS received several 911 calls indicating that a person described as a young Somali male with curly hair was being pistol-whipped by several other young men at Tandridge. When officers responded, they found and, in turn, followed fresh footsteps in the snow to a vacant unit in one of the buildings. Upon entering Unit #1038, they found Gordon Farah, Antonio Barnett, Christopher McLean and one of the present accused, Michael Monney. All these young men are from Tandridge and are believed to be members of the Tandridge Cripz.
[11] Also in the unit was Yahya Diblawe, who, as it happens, is a young Somali male with curly hair. At the time the officers entered, Diblawe was in a locked bathroom of the unit. The officers observed some slight injuries on his face. When they questioned him, Diblawe told the officers that there was no problem and that the other four men were his “bros”.
[12] In the course of investigating this incident, police found a significant amount of marijuana in the heating vents of the vacant unit.
[13] The officers also learned from Toronto Community Housing officials that prior to the incident they had received multiple calls concerning a male matching Diblawe’s description who was said to have been walking through the complex, knocking on doors and warning people to keep their kids inside as Tandridge was going to get shot up.
March 11, 2013
[14] On March 11, 2013, at about 4:15 p.m., Guled Abdalla was in the parking lot of 2 Armel Ct. He is the younger brother of Gordon Farah, one of the men police found in the vacant unit at Tandridge the day before. A man approached and asked, “Where are you from?” When he responded, “Tandridge.” the man asked, “Where is your brother, Gordon?” He replied, “I don’t want any trouble.” Minutes later, a man approached him from behind and stabbed him in the neck. When Abdalla instinctively raised his hand, he received a stab wound to his hand. TPS believed that Abdalla’s assailant was Yahya Diblawe. When Abdalla was shown a photographic line-up that included a photograph of Diblawe, he did not identify anyone, but his mother later told TPS that her son told her his attacker was in the line-up and that his name was “Yahya”.
March 16, 2013
[15] On March 16, 2013, at approximately 4:00 a.m., security guards at 238 Albion reported to TPS having heard multiple gun shots and having seen a silver or champagne coloured car speeding out of the parking lot. They described the driver and passenger as black males in their mid-20s. The attending police officers found six spent shell casings at the scene.
April 3, 2013
[16] On April 3, 2016, Mr. Michael Klein was sitting in his car on Tandridge Crescent having a cigarette. He called 911 to report that he had seen the driver of a black car roll down his window and, for no apparent reason, shoot at a young black man who had been walking nearby, but who had begun to run as the car approached him. Fortunately, the young man was not injured. One of the attending police officers recovered a cartridge casing from the area where Klein indicated that the car had been when the driver opened fire.
[17] Hearing the report of the shooting over the police radio, a TPS officer, P/C Beaulac, looked for the vehicle involved in the shooting at Tandridge, but failed to find it.
April 8, 2013
[18] April 8, 2013, Abdirahaman Mahamud was walking in Tandridge. Two men in hoodies approached him and asked if he was from the neighbourhood. When Mahamud noticed a one of the men had a pistol in his hand, he began to run. The men gave chase and fired multiple shots at him. Attending TPS officers recovered nine .45 calibre and five 9 mm cartridge casings. The episode was captured on close-circuit surveillance cameras (“CCTV”). It appears from the CCTV recordings that the shooters came from the direction of golf course, beyond which lies Albion.
[19] At roughly the same time, Christopher McLean is seen on CCTV entering the underground garage at Tandridge. In the garage, the Crown contends, is an inoperable car owned by Monney that the gang used at that time as a hiding place for firearms and ammunition. On this occasion, McLean went in the direction of Monney’s car. He was only in the garage for a few moments and then left at a run. A short time later (after the shooting incident involving Mahamud was complete, according to the times stamps on other CCTV recordings), McLean returned to the garage and, once again, went in the direction of Monney’s car. Again, he was only inside the garage for a few moments, but that time left at a walk. The Crown postulates that McLean went to the car to get a firearm so that he could respond to the incursion.
[20] Upon learning of the shooting, TPS attended Albion. A security guard there told them that, at around time of the shooting, a car pulled into the parking lot and its driver said to the guard, “Hurry, open the gate. There is heat; I have to get my boys.” The driver then pulled up to 236 Albion, whereupon two Somali males ran around the side of the building and got into the car, which then immediately sped away.
[21] A police officer on duty at the time noted that the license plate of a car matching the security guard’s description of the car he had seen had been linked through police traffic stops to Kasim Mohamed and the deceased, Yusuf Ahmed, both of whom were from Albion.
[22] In May 2013, Sgt. Nasser received information that Yahya Diblawe’s brother, Mahad Diblawe, had been involved in this incident. Nasser obtained warrants to search the residences of Diblawe and Yusuf Ahmed for firearms. When the warrant for Ahmed’s residence was executed, no firearm was found, but Ahmed’s father subsequently told TPS that he had found a handgun in the house and had made his son get rid of it. The warrant for Diblawe’s residence was not executed.
June 22, 2013
[23] On June 22, 2013, Mahad Diblawe was involved in a shooting, as a result of which he was charged with possession of a firearm. On March 19, 2014, he pleaded guilty to several charges in relation to that firearm and was sentenced to 6.5 years’ imprisonment. Casings from that shooting positively matched casings from the April 8, 2013, Tandridge shooting.
July 16, 2013
[24] On July 16, 2013, Yasin Abdulle corresponded by text messaging with a person listed in the contacts file of his cellular telephone as “Goldie.” On this occasion, Abdulle asked Goldie if some young persons had come to Tandridge in a red car and whether they had come “From armel?” When Goldie replied in the affirmative, Abdulle opined, by text, that they were “brave.”
August 1, 2013
[25] On August 1, 2013, Mahde Hure was shot near 175 Albion Road; he refused to cooperate with police. TPS investigators found a bag containing seven bullets and a cellular telephone known to be used by Keon Bryce in the area in which the shots were fired. Bryce was charged with attempt murder, but the Crown later stayed that charge. Hure lived at Tandridge, but was known to associate with young men from Albion; e.g.: as noted above, Hure was stopped in the company of Yusuf Ahmed on August 3, 2012, and in the company of Kasim Mohamed, another habitué of the Albion neighbourhood, on March 20 and April 4, 2013.
November 8, 2015
[26] On November 8, 2015, TPS officers attended 937 Tandridge Crescent in response to a report of gun shots. They found three .45 calibre shell casings and evidence of three bullet strikes. Officers observed Christopher McLean and Gordon Farah, both said to be members of the Tandridge Cripz, nearby. The casings were later linked to a firearm police seized on January 11, 2016, from a car occupied by five men from Albion, including Muktar Mohamed.
December 27, 2015
[27] On December 27, 2015, TPS attended at 936 Tandridge to investigate another shooting. The attending officers seized three .45 calibre shell casings. Those casings also matched the firearm police seized on January 11, 2016.
[28] The Crown contends that the foregoing evidence clearly shows that this homicide was part of an ongoing series of retaliatory acts between young men in the two neighbourhoods.
The Homicide
[29] On August 12, 2013, during an approximately forty minute period before the homicide, CCTV from 75 Tandridge shows each of Abdulle, Monney and Bryce going separately to Monney’s derelict car in the garage. The Crown contends they were looking for a gun. When TPS later searched the car, they found a quantity of different types of ammunition.
[30] Bryce was last to attend the car. Immediately thereafter, he went to the front yard of a nearby residence where Abdulle and Monney were waiting. Bryce took off a backpack he was wearing and handed something to Abdulle. Although the video does not depict exactly what Bryce gave Abdulle, the Crown contends that it was a gun that was kept in the vehicle.
[31] Abdulle put what Bryce gave him in his waistband. Abdulle and Monney then walked off in the direction of the golf course. A nearby camera, earlier hidden by the police on the golf course to monitor comings and goings between the two areas, captured Monney, Abdulle and a third man, Shavoy Campbell, entering the golf course through a hole in the fence, but leaving a few minutes later, headed back in the direction of Tandridge.
[32] After returning to Tandridge, Abdulle and Monney encountered Emmanuel Ansah. Ansah, who, driving a black Audi, had arrived in company with one of his brothers and a male named Christopher Fosu; the latter is alleged to be a member of the Tandridge Cripz. Shortly thereafter, leaving his brother at Tandridge, Ansah drove Abdulle and Monney to Albion.
[33] CCTV at Albion shows that, at approximately 3:00 p.m., a black Audi entered the parking lot. Two men are seen to get out of the car and walk off camera. Less than 30 seconds later, they reappear, running back to the car. Once they were aboard, the car sped away. The Crown alleges these two men were Abdulle and Monney.
[34] Learning of the homicide, TPS officers went to 3330 Weston Rd., looking for McLean. Nasser and fellow officers saw a black Audi in the parking lot and placed it under observation. A short time later, they saw Ansah get in the car along with his brother. They then drove to a different location, where they picked up a third brother. At that point, TPS arrested all three men.
[35] After his arrest, Ansah confirmed, in a statement to TPS, that he attended Tandridge with his brother and Fosu, whom he described as a friend, and that, once there, Fosu spoke with some young males and arranged for him to drive Monney and Abdulle to Albion. According to Ansah, he drove them to the parking lot of 236 Albion. They got out of his car and, moments later, he heard gunshots. Immediately after he heard shots, Monney and Abdulle ran back to his car and told him to drive them to Yorkdale Mall; he complied. Ansah’s account is buttressed by CCTV from Yorkdale and by telephone records.
Position of the Applicant
[36] Expert evidence was necessary, the Crown contended, to give the jury a proper understanding of the milieu in which the homicide occurred. Without it, the applicant asserted, the jury would have been presented with a denuded, sterile evidentiary framework.
[37] As for the evidence of the earlier violent incidents, according to the Crown, they demonstrate the animus between the groups and, thus, the motive for the crime. Without this context, the Crown asserted, “the jury [would] be left to puzzle over an allegation of a senseless shooting by individuals who had no motive to do it. They [would] inevitably be invited by the accused to find a reasonable doubt on the basis of the absence of motive when in fact, evidence of motive exists…”: R. v. Riley, 2009 ONSC 15451, [2009] O.J. No. 1374 (S.C.J.), at para. 38.
[38] The relevance of the proposed video evidence is, according to the Crown, that it demonstrates: (i) that a gang known as the Tandridge Cripz, or the 75 gang, exists; (ii) that it includes constituent cells known as “A2H” and “F4TH”; (iii) that the three accused are not just members of the gang, but, rather, senior members, or what are referred to in gang slang as “generals”; (iv) that the gang is a criminal organization as defined by the Criminal Code; (v) that the gang routinely engages in criminal activity on an ongoing basis, including drug trafficking; (vi) that the gang exerts control or dominion over the Tandridge housing complex and environs; (vii) that other persons who are not members of the gang are not welcome in the Tandridge area; (viii) that gang members are routinely armed with firearms; and (ix) that they will use these weapons to defend their “turf” and/or retaliate against any rival gang. Evidence that the gang is a criminal organization, is relevant not only to the issue of motive, but is also, the Crown says, an essential element it must prove to make out the offence first degree murder as provided by ss. 231 (6.1).
[39] Although the applicant acknowledged that some of the evidence has the potential to be prejudicial, counsel argues that any such danger can be overcome by proper judicial instruction.
Position of the Respondents
[40] All respondents vigorously opposed the proposed expert evidence. All contended that the evidence was unnecessary because the general public is aware of both the existence and the nature of street gangs, such that lay jurors would be able to evaluate for themselves the significance of the evidence suggesting the existence of a gang at Tandridge and another group of young men at Albion.
[41] As for the earlier incidents, all three accused opposed this evidence for several reasons.
[42] First, counsel contended, much of the evidence the Crown proposed to rely upon was hearsay. Thus, the incidents would be difficult to prove and it would be difficult for the jury to distinguish between what evidence would be admissible for its truth and what would not.
[43] Second, even if the incidents could be adequately proven, and the hearsay problems overcome, counsel contended that the incidents were too nondescript, and some too remote in time, to be probative of the alleged gang rivalry motive.
[44] Third, counsel asserted that the evidence would involve reasoning prejudice because the nature of these incidents and who was responsible for the violence in each were issues that would be vigorously contested, such that the trial would devolve into a series of mini-trials. In the result, counsel asserted, the evidence, if admitted, would consume an inordinate amount of time relative to its limited value, and would only serve to distract and confuse the jury.
[45] As for the video evidence, the respondents asserted that the videos carry with them a high degree of moral prejudice that could not be overcome by judicial instruction.
Discussion
[46] I examined the admissibility of this evidence within the framework set out in R. v. Abbey, 2009 ONCA 624.
Stage 1: Preconditions for Admissibility
[47] To be admissible, opinion evidence must satisfy four criteria: (i) absence of an exclusionary rule, (ii) necessity, (iii) a properly qualified expert, and (iv) relevance (both logical and legal): R. v. Mohan, [1994] 2 S.C.R. 9.
Exclusionary Rule
[48] None of the respondents cited any exclusionary rule that would prohibit the applicant from adducing the evidence it was proffering and I am unaware of any. Accordingly, I held that the proffered evidence was not inadmissible on this ground.
Necessity
[49] Turning to necessity, before a witness may be permitted to give expert evidence, the court must first determine that the evidence will not merely be helpful to the jury, but necessary to assist the jury to come to a proper determination of the case: Mohan, at para. 22.
[50] One of the criteria to be examined in deciding whether to admit expert evidence is the extent to which the field in which the opinion is offered is a recognized discipline, profession or area of specialized training: Abbey, at para. 119. “The study of cultural mores within particular communities or groups in a community is a well-recognized field of study within the broader academic and professional disciplines of sociology, criminology and anthropology”: op. cit., at para. 121. There is no question that urban street gangs are one such group, and, as such, satisfy that criterion: R. v. G.R.D., [2010] S.C.C.A. No. 440; R. v. Sarrazin, 2010 ONCA 577; R. v. Valentine, [2009] O.J. No. 5953 (S.C.J.); R. v. J.G., [2005] O.J. No. 4599 (S.C.J.).
[51] As earlier noted, defence counsel argued that the jury did not need the assistance of an expert to properly decide this case. I disagree. The average member of the public is likely aware, in some general sense, of the existence of street gangs, but he or she is apt to be ignorant of the raison d'être, structure and functioning of street gangs, including such aspects of the gang phenomenon as may be important in this case, namely, territoriality and inter-gang rivalry. In this case, there was no doubt in my mind that the significance of a great many of these things would not have been evident to the average juror. Expert evidence concerning criminal associations has been widely accepted; see R. v. Ma (1978), 44 C.C.C. (2d) 511 (Ont. C.A.); R. v. Lindsay, 2004 ONSC 34074, [2004] O.J. No. 4097 (S.C.J.); and R. v. Gager, 2012 ONSC 2697, [2012] O.J. No. 2085, at para. 166.
[52] Based on the evidentiary record, I concluded that “gang culture and the murderous violence it promotes [are] unavoidably central features of the factual matrix of this trial”: Abbey, at para. 60. That being so, I further concluded that expert evidence was necessary to “equip the jury with all relevant, reliable information available and needed to arrive at a correct verdict, while avoiding exposure to information that could invite a verdict based on the jury's understandably negative reaction to those who [are] part of the gang culture”: loc. cit. I note, parenthetically, albeit I determined on the renewed application that the videos were no longer admissible, I remain of the view that the jury would not have been able to properly assess much of what it was to see and hear without the benefit of expert evidence.
Properly Qualified Expert
[53] “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 be qualified as an expert, does not depend upon how the skill was acquired, only that it has been gained”: R. v. Cartolano, 2013 ONSC 4137, at para. 88, citing R. v. Mohan, [1994] 2 S.C.R. 9, at para. 27.
[54] The applicant originally sought to have two experts testify. Having decided expert evidence was necessary, I was, nonetheless, mindful that, when considering whether to admit expert evidence, the court must be cautious that it does not “swallow whole the fact-finding function of the court, especially in jury cases”: Abbey, at para. 71. “The judicial challenge is to properly control the admissibility of expert opinion evidence, the manner in which it is presented to the jury and the use that the jury makes of that evidence": loc. cit. It was with that concern in mind that, during the course of the applicant’s oral argument, I indicated that the potential to have the trial “hijacked” by experts would increase with the number of experts called. In response, the Crown indicated that it was content to forego calling a second expert whom Mr. Zambonini had originally proposed to call and to rely, instead, only on Sgt. Nasser.
[55] Sgt. Nasser is an officer of some 11 years’ experience. The defence did not contest the proposition that he possesses sufficient knowledge of street gangs to be qualified as an expert. I do not propose to review his credentials in these reasons. Suffice it to say it was obvious from his curriculum vitae that he has a great deal of gang-related training and experience. Moreover, he grew up in the general area in which Albion and Tandridge are located and, for much of his general policing career, has worked in 23 Division, which encompasses both. Based on his training and his experience, he can, quite properly in my view, be characterized as an expert.
Relevance
[56] As indicated above, the main argument related to relevance, which is, obviously, the sine qua non for the admissibility of any evidence in a criminal trial.
[57] The Crown contended that the expert’s evidence was relevant because it would give shape and context to the actions and events that the Crown contended showed motive, to wit: the existence of animus and rivalry between the two aforementioned groups.
[58] Defence counsel argued that the expert evidence was not relevant because the underlying support for the Crown’s gang rivalry thesis, upon which the relevance of the proffered evidence entirely hinged, was so weak that the Crown could not provide a reliable factual underpinning for the jury to properly apply the opinions it was seeking to adduce.
[59] As an example, counsel for Bryce pointed out that one of the Crown’s proposed experts, Sgt. Barreira, was not prepared to postulate that a gang even existed at Albion/Armel. That submission ignores two important facts.
[60] First, although Barreira did not go so far as to say that the people at Albion/Armel are a gang per se, he did opine that “there does appear to be a group of individuals [at Albion] who have an ongoing issue with members of the Tandridge Crips.” He also stated that “[w]hen looking at the [c]hronology of incidents involving the Tandridge area and Armel court [sic] it shows a rivalry between the two complexes.” That said, albeit the Crown alleged that the animosity in this case was between members of two actual gangs, obviously the potential for animus between two groups of people is not restricted to street gangs. Therefore, even if there was no gang, as such, at Albion in 2013, it does not mean that there was no animus between two identifiable groups. If the accused were members of a group that had animus toward a group with which the deceased was associated, that would be some evidence of motive.
[61] Second, Sgt. Nasser does assert that the people at Albion/Armel constituted a gang.
[62] Thus, whether there was or was not a gang at Albion, I determined to be a matter going to weight, not admissibility.
Summary
[63] In summary, I was fully satisfied that the Mohan criteria for admissibility of the proposed evidence were made out.
Stage 2: Cost/Benefit Analysis
[64] Having decided that expert opinion evidence was admissible, it remained to decide what opinions the expert could advance and what evidence he could rely upon to support his opinions. As in any such case, this second stage of the analysis, the so-called "gatekeeper function", involved a cost/benefit analysis of the proposed evidence.
[65] Speaking generally, on the cost side of the ledger the concerns surrounding expert evidence are undue consumption of time, prejudice, confusion, a jury being unduly influenced by an expert with impressive credentials, the jargon in which expert evidence is often expressed and an inability on the part of opposing counsel to expose weaknesses in expert opinions: Abbey, at para. 90. In this case, as I will outline below, most of these concerns did not arise.
Undue Consumption of Time
[66] Respecting undue consumption of time, Ms. Myers argued, in a somewhat in terrorem fashion, that these incidents would be hotly contested and would, therefore, consume a great deal of time. Inasmuch as she gave no offer of proof in that behalf, I took her to mean, simply, that the witnesses who came before the court would be vigorously cross-examined. But, since the incidents were brief in duration and few witnesses were prepared to come forward to testify respecting them, I was not persuaded that this evidence would become unduly protracted by virtue of cross-examination so as to consume an inordinate amount of time.
Prejudice
[67] As for prejudice, it is axiomatic that evidence of bad character is inadmissible to show that an accused is the type of person likely to have committed the offence: R. v. S.G.G., [1997] 2 S.C.R. 716, at para. 63. Having made that observation, however, Cory J. then set out three exceptions to the general prohibition of which, in this case, only the first was relevant: (1) where the evidence is relevant to an issue in the case: see, for example, Morris, [1983] 2 S.C.R. 190, supra, at p. 202; B. (F.F.), supra, at p. 731. See also R. v. Lepage, [1995] 1 S.C.R. 654, at pp. 672-74; R. v. Hinchey, [1996] 3 S.C.R. 1128, at para. 135.
[68] At paragraph 64 ff. of S.G.G., Cory J. then went on to state: Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown's theory of the case, such as motive, opportunity or means: see R. v. Davison (1974), 20 C.C.C. (2d) 424 (Ont. C.A.); Hinchey, supra, at para. 135. Evidence of motive, for example, is always relevant in that it makes it more likely that the accused committed the crime, although it is not an essential element of criminal responsibility: Lewis v. The Queen, [1979] 2 S.C.R. 821. Evidence which is directly relevant to the Crown's theory of the case is admissible even though it may also demonstrate the bad character of the accused, as long as its probative value outweighs its prejudicial effect: B. (F.F.), [1993] 1 S.C.R. 697, supra, at p. 731. [Emphasis added.]
[69] In terms of moral prejudice, apart from the fact that Monney was in Unit 1038 at Tandridge on March 10, 2013, and the fact that a cellular telephone Bryce was known to use was found near the scene of the August 1, 2013, shooting, there was no other indication respecting any of the previous incidents the Crown was seeking to adduce that any of the accused was directly involved. That said, I saw the potential for moral prejudice as negligible and, in any event, certainly not such that it could not be overcome by proper judicial instruction.
Witness’ Credentials
[70] As for the prospect of the jury being overawed by an expert’s impressive credentials, Sgt. Nasser certainly has enough experience and knowledge to be considered an expert. That said, while I intend no disrespect, Sgt. Nasser’s credentials are not such as to incur this risk.
Confusion
[71] As for confusion, concerning the phenomenon of the urban street gang, it was my view that there was nothing particularly confusing about Sgt. Nasser’s evidence. While I was satisfied that the subject matter would not be properly understood by the jury without the benefit of his evidence, the evidence was straightforward and readily understandable by anyone of even modest intelligence. Moreover, there was no jargon that was apt to confuse the jury.
[72] As for the specific incidents leading up to the homicide, there is nothing particularly confusing about them. Indeed, it was my view that the jury would be more apt to be confused if they were deprived of an evidentiary context into which to place and, in turn, consider the events of August 12, 2013.
Inability to Expose Weaknesses in the Expert’s Opinions
[73] As for the risk that counsel would not be able to expose any shortcomings in the proffered opinions, since the evidence proposed in this case was not technical or scientific in nature, but, rather, experiential, I was satisfied that any weaknesses could be effectively explored through cross-examination, particularly since there would be, potentially at least, not one, but three cross-examinations of the expert.
Specifics of the Ruling
[74] On October 27, 2016, I articulated what evidence the Crown could lead through the expert and what evidence it could not.
General matters about which the expert could testify:
[75] I held that the Crown could lead general evidence of the following: (i) the street gang as an urban phenomenon; (ii) the structure/organization of gangs, including the affiliation of local gangs to Bloodz & Cripz organizations; (iii) the symbols and graffiti commonly used by gangs, including the fact that members of Cripz gangs often wear blue clothing and other blue accoutrements; (iv) gang hierarchy and the fact that members can move up in the gang by putting in “work”, which can include violence; (v) loyalty between gang members; (vi) the concept of gangs having territories (or “turf”) that they defend vigorously by various means, including violence; (vii) the concept of retaliation by gangs and/or individual gang members for (a) insults, injuries, physical harm to gang members or to the gang’s reputation and/or (b) territorial infringements by non-gang members or rival groups; and (viii) the proposition that, for fear of reprisal, a gang member would not likely enter the territory of a rival gang, absent a compelling reason to do so.
Specific (case related) matters about which expert could testify:
[76] I also held that the expert could testify in relation to certain issues pertinent to this trial; including: (i) that certain individuals, to the expert’s own knowledge, are affiliated with the Albion neighborhood; (ii) that certain individuals are, to the expert’s own knowledge, affiliated with the Tandridge neighborhood; and (iii) that a gang known as the Tandridge Cripz exists.
Subject matters about which expert could not testify
[77] I held that the expert would not be permitted to opine upon the following matters Upon which the Crown sought to have him testify: (i) the actual membership of Tandridge Cripz; (ii) the existence of “A-block” as a gang in 2013; (iii) the actual membership of “A-block”; (iv) the alleged back and forth pattern of retaliation between Tandridge and Albion neighborhoods (except to the limited extent that he had been directly involved in the investigation of the August 12, 2013, homicide); and (v) what one could expect re: Bryce’s allegedly giving Abdulle a firearm minutes before the murder. I disallowed the first four topics of the forgoing list because each trenched to some on the ultimate issue and were, in my view, matters that, with the benefit of the opinions that I was prepared to allow the expert to give, the jury would be adequately equipped to draw their own conclusions. The fifth topic, I disallowed because, framed in this way (i.e.: the way it was posed in the Crown’s factum) it simply invited the jury to speculate.
[78] I also ruled that Sgt. Nasser would be permitted to refer to information received from CIs to the extent that such information formed part of his basic knowledge base or expertise, but he would not be permitted to refer to any information that he had received from any particular CI where that information related directly to this case. For greater certainty, as distinct from directly referring to CI information, which I ruled he could not do, I held, further, that Sgt. Nasser would not be permitted to advance any opinion in this case, unless, in his best judgment, such opinion was sustainable independent of any CI information he had received relating to this case.
Previous Incidents
911 Calls - Generally
[79] As earlier noted, some of the abovementioned incidents said to demonstrate motive first came to the attention of TPS through 911 calls. In relation to such incidents, I ruled that both the fact that TPS had received one or more 911 calls in connection with a particular incident and the substance of the call(s) could be related to jury. That was necessary in my view, to give the jury a context within which to understand why the police went where they went and did what they did. But, I held that evidence of what was said by the caller could not be adduced for the truth of what s/he told TPS, but, rather, merely to explain why TPS attended and investigated the incident.
[80] Respecting all such incidents, since the substance of the calls was not being received for its truth, I held that the 911 calls themselves could not be played, because, in my view, hearing the substance of the call from the actual caller would have made it more difficult for the jury to follow my instruction that they could not use it for its truth, but, rather, only to explain the TPS actions. As earlier noted, defence counsel were opposed to these incidents being adduced. That said, as I understood their respective positions, understanding that the incidents were going to be put before the jury, none opposed the calls being adduced as proof of the fact that TPS had received and acted upon them.
February/March 2013
[81] In relation to the information TPS received in late February or early March of 2013, that the Diblawe brothers had told Keon Bryce he ought not to attend the plaza between the two neighbourhoods, since it was clearly hearsay and came from a CI, such that the defence would have no meaningful way of challenging it, I held it to be inadmissible.
March 10, 2013
[82] Respecting the March 10, 2013, incident, in which it was reported that a young Somali male was being pistol-whipped, Yahya Diblawe told the officers that the other men in the unoccupied unit were his “bros”. Notwithstanding Diblawe’s assertion, given that he was from Albion and the other men were from Tandridge and given, further, that he had injuries to his face, in my view, considering the incident together with other evidence on point, the jury could reasonably believe that he had been in the vacant apartment against his will. That, in turn, could support the Crown’s contention that there was strife between the two groups. Further, the more serious incident the following day, could not be properly appreciated, in my opinion, without the jury knowing of this incident. Since only Monney had been involved the day before, I was of the view that there was no moral prejudice against either Abdulle or Bryce. As for Monney, given Diblawe’s position when confronted by TPS and the fact no charges had been laid, in my opinion the potential for moral prejudice against Mr. Monney was very low, such that it was outweighed by the probative value of the evidence. In the result, I held the incident to be admissible.
[83] As for the marijuana the police found in the heating vents of the apartment, since it had no relevance to the alleged motive, I held this evidence to be inadmissible.
[84] As for the information TPS officers learned from Toronto Community Housing officials (about someone matching Diblawe’s description walking through the complex earlier that day warning that it was about to be shot up), inasmuch as it involved multiple levels of hearsay, I excluded this evidence.
March 11, 2013
[85] The March 11, 2013, incident is circumstantial evidence of animus between the two groups. Since it was not alleged that any of the accused was involved, I saw no potential for moral prejudice Accordingly, I held this evidence to be admissible through Guled Abdalla.
[86] As for Abdalla’s failure to pick anyone out of the photo line-up, I held this evidence to be inadmissible at the instance of the Crown. But, since the line-up included a photograph of Yahya Diblawe, I held that the fact that Abdalla did not pick anyone out would be admissible at the instance of the defence. That said, although I did not rule definitively, as such, I cautioned that, if defence counsel were to adduce this evidence, that might open the door to the Crown to adduce evidence that Abdalla’s mother had contacted TPS to say that her son told her his attacker was in line-up and that his name was Yahya.
March 16, 2013
[87] The March 16, 2013, incident is further circumstantial evidence of animus between the two groups. Since it was not alleged that any of the accused was involved, I saw no potential for moral prejudice. Accordingly, I held this evidence to be admissible.
April 3, 2013
[88] As for April 3, 2016, the event is further circumstantial evidence of animus between the two groups. Once again, since it was not alleged that any of the accused was involved, I saw no potential for moral prejudice. I ruled that evidence of the actual incident itself was admissible through any witness who had observed it firsthand. The fact that one of the TPS officers recovered a cartridge casing I held to be admissible through any officer with firsthand knowledge of that fact.
[89] As for P/C Beaulac looking for the vehicle involved at Tandridge but failing to find it, since the officer’s endeavour was based on nothing more than an assumption on his part of the very fact the Crown sought to prove, namely, that an animus existed between Tandridge and Albion, I held this evidence to be inadmissible at instance of Crown, but admissible at instance of the defence.
April 8, 2013
[90] As for the April 8, 2013, incident at Tandridge, I considered it to be further circumstantial evidence capable of supporting an inference of animus between the two groups. Since it was not alleged that any of the accused had been involved, in my view there was no potential for moral prejudice. Accordingly, I held the evidence to be admissible.
[91] As for Christopher McLean entering the garage at 75 Tandridge, I saw no potential for moral prejudice in the fact that he had simply entered the garage. But, since the Crown contends that the gang used Monney’s inoperable car as a place in which to stash firearms, I considered McLean’s trip to the garage to be some circumstantial evidence supporting the Crown’s theory, as espoused by Sgt. Nasser, that, lest they appear to be weak, street gangs cannot fail to retaliate in response to provocative acts on their turf by rival gangs or other persons not associated with the gang. Further, I was of the view that it supported the Crown’s contention that the purpose for which each of the accused went to the same garage on August 12, 2013, was to recover a firearm.
[92] As for what TPS officers were told by the security guard at the Albion Rd. complex, given the contemporaneity of this event with the shooting at Tandridge the fact that someone thought the police would soon be coming to Albion is some circumstantial evidence supporting the proposition that one or more persons from Albion may have been responsible for the shooting. I held this evidence to be admissible through the guard, but not the police officers.
[93] Likewise, I considered the fact that the car being driven by the person to whom the security guard had been speaking matched the description of a car earlier occupied by Kasim Mohamed and the deceased, Yusuf Ahmed, both of whom were from Albion, to be further circumstantial evidence supporting the proposition that persons from Albion were involved in the shooting. Accordingly, I held that this evidence to be admissible through any officer who had been directly involved in actually stopping the car on the earlier occasions, but not admissible secondhand, as it were, through field information reports or other police documentation.
[94] As for the information that Sgt. Nasser received, in May 2013, that Mahad Diblawe had been involved in this incident, since it emanated from a CI, was hearsay, such that the defence could not meaningfully challenge it, I held it to be inadmissible.
[95] As for the search warrant that Nasser obtained for Ahmed’s residence, it, too, was based largely on CI information. Since no gun was recovered, I held this evidence to be inadmissible at the instance of the Crown, but admissible at instance of defence.
[96] As for Ahmed’s father subsequently having told TPS that he had found a handgun in his house and had told his son to get rid of it, I held this to be inadmissible at the instance of the Crown.
June 22, 2013
[97] As for the occasion on June 22, 2013, when police found Mahad Diblawe in possession of an illegal firearm, since it did not take place in either neighborhood, I saw no logical connection between that incident and the alleged gang rivalry between Tandridge and Albion. Notwithstanding cartridge casings from that pistol matched casings found at the April 8, 2013, Tandridge shooting, understanding that illegal firearms can easily be transferred from one person to another, in my opinion the connection to the alleged rivalry was simply too tenuous.
July 16, 2013
[98] As for Abdulle’s July 16, 2013, text messages with Goldie, the fact that Abdulle thought that young men from Albion were brave simply because they had come to Tandridge was, in my view, highly probative of the Crown’s theory that there was ongoing animosity between the two neighbourhoods. Since the exchange involved no moral prejudice, I held it to be admissible.
August 1, 2013
[99] As for the August 1, 2013, shooting, albeit he did not live there, the victim, Mahde Hure, associated with young men from Albion. That said, the fact that he was shot and the fact that a cellular telephone belonging to Bryce was found in the area is circumstantial evidence that, when considered together with other evidence, is capable of supporting an inference that there was ongoing animus between the groups. Thus, I held this evidence to be admissible. However, the fact that Bryce was charged with attempt murder, but the charge was later stayed, had no probative value. Accordingly, I held this to be inadmissible at the instance of the Crown.
November 8 & December 27, 2015
[100] Respecting the events of November 8 and December 27, 2015, I accept that events that occur subsequent in time to the event giving rise to a charge before the court can, nonetheless, be relevant to the proof of that charge: R. v. Bain (1969), 1 N.S.R. 36 (C.A.), at p. 43; R. v. Jama, 2011 ONSC 187, [2011] O.J. No. 1894. That said, given the significant temporal gap between the 2013 incidents, including the homicide charged on this indictment, and the two incidents in late 2015, and given, further, that there were, apparently, no violent incidents in these areas in the interval, I held these incidents to be too remote in time to warrant admission.
CI Information
[101] I also held that no evidence could be adduced that depended on information from a CI. Further on this point, I held that Nasser could rely on information he has gleaned from CIs in terms of his general understanding of street gangs, where that information had no direct bearing on this case, but, for greater certainty, that he could not rely for any opinion he might advance on CI information that he has gathered pertaining to this case.
Murder of Christopher McLean
[102] Subsequent to the homicide charged on this indictment, Christopher McLean, said to be one of the self-styled “generals” of the Tandridge Cripz, was murdered. Since there was no evidence linking his murder to the rivalry said to exist between Tandridge and Albion, I held that the fact that McLean was murdered had no relevance to the homicide charged on this indictment. Because mention of the fact that he had been murdered could operate in a way that was prejudicial to these accused, I ruled that there could be no mention of his murder at the instance of the Crown.
Video Evidence
[103] As I have earlier indicated, the proposed video evidence did not ultimately go before the jury. That said, since my ruling that certain of the videos could go before the jury was the catalyst that led to Monney, Abdulle and Bryce’s admissions (that the Tandridge Cripz exists and that each was a member of the gang) and Monney and Abdulle’s additional admission, (that the gang is a criminal organization) and, since the Crown opposed the respondents’ application to have the court revisit the early ruling in light of the admissions, I will give a brief précis of my reasons for initially admitting some of the videos, but excluding others.
[104] To begin, evidently there are more than 50 videos on the internet in which the Tandridge Cripz are featured; of those, the applicant sought to introduce eight. The applicant’s purpose in seeking to adduce them was to show: (i) that a gang known as the Tandridge Cripz, or “the 75”, exists; (ii) that it includes certain constituent cells known as “A2H” and “F4TG”; (iii) that the three accused were not just members of the gang, but senior members (or what are referred to in gang slang as “generals); (iv) that the gang is a criminal organization, as defined by the Criminal Code; (v) that the gang routinely engages in criminal activity on an ongoing basis, including drug trafficking; (vi) that the gang exerts a de facto control or dominion over the Tandridge housing complex and environs; (vii) that other persons who are not residents and not members of the gang are not welcome in the Tandridge area; (viii) that gang members are routinely armed with firearms; and (ix) that they will use these weapons to defend what they consider to be their “turf” and/or to retaliate against any rival gang members who dare to enter that turf.
Albion Videos
[105] The applicant proffered numerous videos capable of supporting the inference that, at least as of 2015, a street gang calling itself “A-block” existed at Albion. But, while A-block, and videos depicting A-block, may have existed before 2015, since no evidence was put before me to support the inference that it existed in 2013, I held that the A-block videos were too remote in time to reliably support an inference that A-block existed as a gang in the months leading up to the homicide and were, thus, inadmissible.
Tandridge Videos - General Approach
Re: Monney
[106] Unlike Abdulle and Bryce, who only made admissions concerning the Tandridge Cripz after I had ruled the videos admissible, Monney had acknowledged, though not formally admitted, from the outset of the application that the Tandridge Cripz existed and that he was a member of the gang. Thus, it was my view that videos depicting Monney were of limited probative value, such that, generally speaking, they ought not to be admitted, unless, vis a vis him, they had some significant probative value respecting issues not addressed by his admissions or, vis a vis his two co-accused, they had some significant probative value that could not otherwise be demonstrated by videos in which Monney did not appear.
Re: Abdulle & Bryce
[107] Turning to Abdulle and Bryce, since they had made no admissions as of the outset of the trial, all the purposes for which the Crown sought to introduce the video evidence were in play, so to speak. Since evidence of motive was central to the Crown’s case, and since membership in the Tandridge Cripz was vital to proving that motive, it seemed to me that some of the videos ought to be admitted. I was confident that the videos were not overly prejudicial and any potential prejudice could be overcome by appropriate judicial instruction. I relied for that conclusion on R. v. Williams, 2013 ONSC 1076, [2013] O.J. No. 759, 2103 ONSC 1076, and the authorities referred to therein.
[108] In the result, on October 27, 2016, I ruled that the Crown could adduce six of the eight videos it had proffered. I reserved judgment on the admissibility of a seventh video, but before I ruled on whether to admit it or not, I was asked to revisit and, as I will explain below, did revisit my initial ruling respecting the videos I had earlier ruled to be admissible.
Graffiti
[109] Turning to graffiti, some of the videos and certain still photographs captured gang-related graffiti that the Crown wanted to adduce to show the existence of what it contended were two gangs and to demonstrate certain antipathies held by each to toward rival gangs.
Albion
[110] In September 2016, Sgt. Nasser went to Albion for the purpose of determining whether there were signs of a gang being in existence in the area. He found a considerable amount of graffiti that indicated to him that a gang calling itself “A-block” existed. Just as with the Albion videos, once again, however, there was no evidence before me to show how long the graffiti had been there and, by extension, nothing to support the proposition that the gang existed in the months leading up to the homicide. So, as with the videos, I held that the Albion graffiti was too remote in time and, for that reason, inadmissible.
Tandridge
[111] As for graffiti at Tandridge, since there was ample evidence that the gang existed in the months leading up to the homicide, the remoteness problem that caused me to rule the Albion graffiti inadmissible did not pertain to the Tandridge graffiti.
[112] Sgt. Nasser considers graffiti to be a significant aspect of street gang culture. It is, according to him, a traditional means by which gangs promulgate their claim to what they consider to be their turf and by which they convey to potential interlopers the message that incursion involves a risk of a violent response. I was of the view that graffiti would be one of many aspects of gang culture that the average juror would either not know about at all or, if he had some knowledge, would not fully appreciate some of its more subtle nuances. Accordingly, I held that Nasser could give evidence on this subject in a general way and certain representative samples of Tandridge graffiti could be adduced through him. However, while appreciating that “there is no longer a general rule barring opinion evidence on the ultimate issue…”, I was mindful that “the court should apply the criteria of necessity and the cost-benefit-analysis more strictly on evidence dealing with the ultimate issue…”: Hoang (Litigation guardian of) v. Vicentini, 2016 ONCA 723, [2016] O.J. No. 5140, at para. 62. For that reason, I held that Sgt. Nasser could not opine on the meaning of discrete pieces of graffiti; rather, I held that he could only comment in general/hypothetical terms on the meaning of graffiti, e.g.: what certain symbols connote or what a gang name followed by the letter “K” or the word “killas” likely meant.
Video Ruling Revisited
[113] On October 28, as noted above, each of the three respondents admitted that the Tandridge Cripz existed and that he was a member of it at the material time. Monney and Abdulle also admitted that the gang is a criminal organization; Bryce did not so stipulate Having made those admissions, counsel for the respondents then moved to have the court revisit its October 27 ruling and exclude the videos on the basis of changed circumstances.
[114] In R. v. Gager, 2012 ONSC 2697, [2012] O.J. No. 2085, at paras. 81 to 93, I discussed a number of authorities that make clear that a court can reconsider an evidentiary ruling where there has been a significant change of circumstances. Relying on those authorities, I was satisfied that I could properly revisit my earlier ruling.
[115] The respondents’ argument, at its most basic, was that, in light of the admissions, the videos no longer had any probative value or, in the alternative, if they still had some it was, in light of the admissions, now outweighed by the potential prejudice playing the videos for the jury would entail.
[116] Turning to the applicant’s position, despite the admissions, Crown counsel strenuously resisted the respondents’ application. Mr. Zambonini contended that the videos still had significant probative value, such that the court ought not to exclude any, much less all, of them.
[117] The Crown argued that, while the admissions proved some of what the Crown hoped to establish by means of the videos, a great many aspects of the motive would remain unproven, including items (iii) through (ix) inclusive of the list set out above. In addition, the Crown contended, the admissions did not establish: (i) association between the three accused; (ii) their association with others in the gang; or (iii) their respective positions within the gang hierarchy. Their positions within the hierarchy was particularly important, the Crown argued, in relation to Bryce because, inasmuch as he was not at the homicide scene, the Crown would not be in a position to show convincingly that he was a party to the homicide, unless it could show that he was highly placed within the gang.
[118] I was persuaded that the videos still had some relevance in the ways that Mr. Zambonini suggested. That said, there being other evidence available to the Crown to prove what it hoped to establish through the videos, their probative value was, in my view, considerably diminished. Weighing that reduced probative value against the videos’ potential for prejudice, I concluded that, in the face of these admissions having been made, the latter exceeded the former. Accordingly, I held that the videos would be provisionally excluded, by which I meant that my earlier ruling respecting their admissibility would stand until such time as the aforementioned admissions were formally made in the presence of the jury.
[119] By way of clarifying my revised ruling, I indicated that, despite my having excluded the videos, screen captures from those videos would remain admissible to permit the Crown to demonstrate various things it wished to prove, provided that the titles of the videos, some of which are arguably potentially prejudicial in themselves, were not displayed. I further held that, to the extent that it might be necessary, the Crown would be entitled to adduce the fact that the source of the screen capture was a YouTube video.
Video Ruling Further Revisited
[120] Beginning on November 15, 2016, Yasin Abdulle testified in his own defence. On November 17, in the midst of cross-examination by the Crown, Mr. Zambonini applied for permission to play in the presence of the jury three of the six videos I had originally ruled admissible and then, by virtue of the aforementioned admissions, later ruled inadmissible.
[121] Mr. Zambonini argued that Abdulle’s evidence that (i) Nasser’s opinions, while perhaps the case with most gangs, did not reflect life in the Tandridge Cripz, (ii) that the gang did not have a turf, as such, (iii) did not have rivalries of the sort espoused by Nasser, and (iv) did not typically respond violently to perceived wrongs by other gangs, amounted, in effect, to a repudiation of his earlier admissions. This situation was exacerbated, Mr. Zambonini further argued, because Abdulle’s counsel did not cross-examine Nasser at all, much less challenge him on these specific points, such that Abdulle must be taken to have accepted Sgt. Nasser’s evidence on these issues.
[122] Sgt. Nasser was well aware of the existence of the Tandridge Cripz by virtue of having worked in 23 Division for many years. I have no doubt that, had he been asked whether the Tandridge Cripz had the same proclivities he attributed to gangs generally, he would have had an opinion in that regard. But Sgt. Nasser was not asked to opine on this subject precisely because, concerned with ultimate issue considerations, I had ruled that Nasser could not give specific opinions in relation to the Tandridge Cripz.
[123] Against that backdrop, had Abdulle given his evidence on these points in examination-in-chief, or even in cross-examination by other defence counsel, my ruling might well have been different. But he did not give the answers complained of until Mr. Zambonini specifically asked him whether his gang operated in the ways Nasser had postulated most gangs operate.
[124] Relying on R. v. Bricker (1994), 90 C.C.C. (3d) 268 (Ont. C.A.), at p. 278; leave refused (1994), 92 C.C.C. (3d) vi, [1994] S.C.C.A. No. 331, Mr. Rudnicki argued that it is well settled that a prosecutor cannot, through cross-examination, compel an accused to put his character in issue. That is generally correct: R. v. Tanner (1994), 92 C.C.C. (3d) 68, 19 O.R. (3d) 259. See also R. v. Magno, 2012 ONSC 4014, [2012] O.J. No. 3354, where, at para. 8, Ducharme J. cited with approval the following passage from R. v. MacDonald, [1939] O.R. 606 (C.A.), at p. 624: The case law also makes clear that the prosecutor cannot compel an accused to put his character in issue and cannot attempt to do so during the cross-examination of the accused.
[125] Likewise, in R. v. St. Pierre (1974), 3 O.R. (2d) 642, at pp. 500-01, speaking for the court, Dubin J.A. (as he then was) stated: I do not think that by responding to those questions which are put to the accused for admittedly tactical reasons it can be said that he has put his character in issue.
[126] Insofar as Abdulle was being asked about the character of the gang and not about his own personal character, at least not directly, it begs the question whether his answers to the questions asked could be said to have put his character in issue, so as to even engage the doctrine in Bricker. But, since he had admitted being a member of a street gang and that the gang was a criminal organization, in the circumstances of this case it is, perhaps, a distinction without a difference, as it were, and I am inclined to the view that Bricker was engaged.
[127] On the other hand, in R. v. Turpin, 2005 BCSC 490, [2005] B.C.J. No. 841, Ehrcke J. held that there is no blanket or general rule that an accused can never put his character in issue in cross-examination. In that same vein, it was held in R. v. Currie, 2008 ABCA 374, [2008] A.J. No. 1212, at para. 31, that “[c]ross-examining counsel cannot be required to prevent a witness from saying things which counsel did not ask for.”
[128] In this case, however, Crown counsel took Abdulle directly to Nasser’s assertions and asked him to confirm that those assertions were true for the Tandridge Cripz. It was when Abdulle refused to adopt them that Mr. Zambonini sought permission to play the videos and question Abdulle on aspects of them that, on their face at least, would seem to belie Abdulle’s assertions that the Tandridge Cripz is a gang unlike most gangs in these respects. But context is critical here.
[129] By the point in the trial when this issue arose, all three accused had admitted that the Tandridge Cripz existed as a street gang and that they were members of it. Monney and Abdulle had gone further and admitted that the gang is a criminal organization. It was vitally important to the Crown to be able to show that members of the Tandridge Cripz embraced the attitudes and proclivities Nasser testified pertained to gangs generally in order to prove the motive the Crown ascribes to the homicide. But, as I have explained above, by virtue of the court’s earlier ruling the Crown had not been permitted to have Nasser comment on these specific attributes respecting the Tandridge Cripz, despite his having been ruled an expert on street gangs and despite his having worked for many years in 23 Division, within the precincts of which the gang exists.
[130] To establish the motive it alleged, the Crown needed to prove that certain aspects of gang culture, said to apply to gangs in the general case, were embraced by the Tandridge Cripz. In light of the admissions all accused had made, and given that the Crown could have proven, had it been permitted, those aspects of gang culture through Nasser, it was not unreasonable, in my view, for the Crown to attempt to prove them through Abdulle. In the same vein, given that defence counsel had not seen fit to challenge any of the salient parts of Nasser’s evidence in this regard, it was not unreasonable for Crown counsel to expect that Abdulle would adopt Nasser’s evidence on these points. Therefore, it was not improper, in my view, for Mr. Zambonini to seek to have Abdulle confirm what Nasser doubtless would have said, had he been permitted to say it.
[131] Against that backdrop, I rejected Mr. Rudnicki’s submission that Mr. Zambonini deliberately asked the questions he did for an oblique purpose, namely, to engineer a situation in which the court would be forced to consider reversing its October 28 ruling, wherein, based on changed circumstances, the videos ruled admissible the day before were subsequently ruled inadmissible. It was my opinion at the time, and I remain firmly of the view, that Mr. Rudnicki’s attack on Mr. Zambonini’s professional integrity was baseless. I ascribe no improper motivation to Mr. Zambonini in asking the questions he asked.
[132] Given Abdulle’s firm rejection to that point of Mr. Zambonini’s suggestions concerning the nature of the Tandridge Cripz, in my view it was extremely unlikely that, even if confronted with the videos, Abdulle would adopt those suggestions. Thus, the only possible benefit to be gained by the Crown from continued denials upon further cross-examination would have been some impact on Abdulle’s credibility.
[133] On the other hand, I had the fair trial interests of not only Abdulle, but also Monney and Bryce to consider. Whatever the inherent prejudice of the videos had they been introduced as part of the Crown’s case, I considered the potential prejudice of introducing even three of them at this point in the trial to be high. Monney had by this time declined to call any evidence and it appeared unlikely that Bryce would testify.
[134] On balance, I was of the view that any legitimate probative value the videos might potentially have at that point in the trial was eclipsed by their potential for prejudice. Accordingly, I refused the Crown’s application.
R. Clark J. Released: January 12, 2017
