Court File and Parties

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 25 and 26, 2016

PRE-TRIAL application #3 ADMISSIBILITY OF EXPERT TESTIMONY RE URBAN STREET GANGS

Reasons for Decision

CLARK J.

[1] On August 12, 2013, in northwest Toronto, Yusuf Ahmed was shot to death. The accused were charged with his murder.

[2] The Crown sought to call an expert on the subject of urban slang and, more particularly, slang used by members of urban street gangs in order to permit the jury to properly understand certain intercepted communications. Conceding that the conditions in R. v. Mohan (1994) , 89 C.C.C. (3d) 402 (S.C.C.) were satisfied and that the probative value of the evidence outweighed any potential for prejudice, the defence did not object to the admissibility of this evidence.

[3] To borrow from R. v. Abbey, 2009 ONCA 624, at paragraph 60, I was of the view that the proposed evidence was necessary to "equip the jury with all relevant, reliable information available and needed to arrive at a correct verdict…” That said, mindful of the “special scrutiny” that is required vis-a-vis expert evidence “as it approaches the ‘ultimate issue’” (R. v. Sekhon, 2014 SCC 15, at para. 76, citing Mohan, at p. 24 and R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 37), I was concerned that, whereas generally speaking expert witnesses are not permitted to opine on the precise meaning of particular communications, in this case the Crown wished to have the expert do precisely that. My concern was based on the conflicting authority on the issue.

[4] On the one hand, a number of cases have held that an expert’s opinion on the interpretation to be given intercepted communications is admissible: R. v. Black, 2009 NBPC 27, [2009] N.B.J. NO. 243 (Prov. Ct.); R. v. Byers, [2008] N.B. J. No. 96 (Q.B.); R. v. Yakimishyn, 2009 ABQB 162, [2009] A.J. No. 419 (Q.B.); R. v. Le, [2009] S.J. No. 349 (Q.B.); R. v. Woo, [2006] M.J. No. 483 (Q.B.).

[5] In R. v. Nguyen, 2004 ABQB 618, [2004] A.J. No. 946 (Q.B.), Watson J. allowed such interpretations, but noted, at paragraph 13, that “no strenuous objection was made...” to the admissibility of the evidence.

[6] In R. v. Atkins, [2010] O.J. No. 2990 (C.J.), a detective, qualified by the court as an expert in language used in the drug trade was allowed to give his interpretation of the meaning of certain intercepted communications.

[7] On the other hand, a number of cases have held that, despite having the required expertise, an expert may not impart such opinions or interpretations to the trier of fact.

[8] In R. v. Fougere, [1988] N.B.J. No. 17 (C.A.), a police officer was declared an expert at trial "for the purpose of giving opinion evidence on the jargon, the terminology and the pricing of illicit drugs." On appeal, the court noted that “the prosecutor sought the opinion of the police officer not only on his expertise but also with respect to inferences which it was the trial Judge's duty to make.” The court went on to hold that:

In our opinion it was wrong for the trial Judge to allow the police officer to give his opinion with respect to the inferences which had to be made from the conversations. An expert witness such as Corporal Bonnell is allowed to give his opinion on the meaning of words used in the illicit drug business but it is for the Judge to decide whether that word should be given that meaning in the particular conversation.

[9] Fougere was a judge alone trial; where, as here, the matter is to be tried by a jury, it seems to me, a fortiori, that such opinions should be disallowed. See also R. v. Blizzard, 2005 NBQB 281, [2005] N.B.J. No. 317 (Q.B.); R. v. Allen, [2005] M.J. No. 404 (Q.B.); R. v. Perron, [2008] N.B.J. No. 519.

[10] In R. v. Somerville, 2012 NBCA 23, the Court was again faced with opinion evidence admitted at trial of the meaning of an intercepted conversation. Following their earlier decision in Fougere, at paragraph 33, the court held:

At trial, Cst. White was asked to interpret and explain each of the 18 intercepted conversations. This was not a proper approach to expert opinion evidence and ought not to have been allowed. It was not Cst. White's role to draw inferences from the conversations.

[11] In R. v. Cater, 2012 NBCA 41, [2012] N.B.J. No. 139 (Prov. Ct.), Derrick J. permitted an opinion respecting certain definitions of words used to communicate concerning the trafficking in firearms, but refused to permit the expert to opine as to his interpretations of intercepted communications.

[12] In R. v. Alcantara, 2009 ABQB 524, [2009] A.J. No. 997 (Q.B.), the court held that the expert could give definitions for the words said to reflect drug transactions, but could not give his interpretations of the conversations themselves.

[13] I raised this issue with counsel and indicated to defence counsel that, if they were concerned that the Crowns desired approach would trench on the ultimate issue, I would be inclined to restrict the witness to opining on hypotheticals that embodied the slang in question. I was, however, assured by all counsel that they preferred to have the witness impart to the jury his opinion on the meaning of each of the communications in question. In light of their uniform position, I permitted the witness to do so.

R. Clark J. Released: January 12, 2017