COURT FILE NO.: CR-18-50000593-0000
DATE: 20200824
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
ABDULLAHI MOHAMED, ABDIRAHMAN ISLOW, and TREVAUGAN MILLER
Respondents
Paul Zambonini and Aaron Del Rizzo, for the Crown
Sid Freeman for Abullahi Mohamed
John Struthers and Ashli Pinnock for Abdirahman Islow
Greg Leslie and Richard Mwangi for Trevaughan Miller
HEARD: February 10, 11, 2020
REASONS FOR JUDGMENT ON APPLICATION TO ADMIT EXPERT EVIDENCE
R.F. Goldstein J.:
[1] On Friday March 16, 2018, three men drove around the area near Scarlettwood Court in Etobicoke. They were driving in a Nissan Rogue. They arrived in the area at about 10:30 pm. Various surveillance cameras throughout the neighbourhood caught the Rogue as it drove around the area. The path of the Rogue seemed to be random.
[2] At around the same time that the Nissan Rogue was driving around the neighbourhood Nnamdi Ogba was visiting his friend at 58 Waterton Road. At 11:06 pm Mr. Ogba took an elevator to the ground floor. At 11:07 pm the Rogue arrived in the parking lot of 58 Waterton Road. At the same time, Mr. Ogba exited the back door of that building. Mr. Ogba began walking to his car. Two men got out of the Nissan Rogue. They began following Mr. Ogba. They followed Mr. Ogba for less than a minute. The two men pulled out handguns and fired nine shots at Mr. Ogba. The two men then ran back the way they came.
[3] The two men hit Mr. Ogba with five bullets, including one bullet through his heart. He died at the scene.
[4] The Crown alleged that Abdullahi Mohammed and Trevaughan Miller were the two shooters. The Crown alleged that Abdirahman Islow was the driver of the Nissan Rogue. Mr. Islow, the Crown argued, was an integral part of the plan to commit murder. After the shooting the three men fled the scene. A short time after, the Crown alleges, the men celebrated the killing.
[5] But why shoot Mr. Ogba? He was an engineer. He immigrated to Canada from Nigeria. He lived in Brampton. He had a full-time job. He had no prior contact with the police. He was not a member of a criminal gang. He was visiting a friend from his recreational soccer team and left the friend’s apartment. Two minutes later he was walking to his car to get some take-out food for his girlfriend when the two men shot him five times in the back, without warning.
[6] Crown counsel’s position was that the murder was part of an ongoing violent rivalry between gangs in the north-west part of the city. The Crown theorized that Mr. Mohammed, Mr. Miller, and Mr. Islow were members of a street gang called C3. C3 is an alliance of three gangs. C3 is geographically located in Etobicoke in the general area of Jane Street and Trethewey Drive. C3 is a longstanding rival of the Scarlettwood Crips. The Scarlettwood Crips are a gang geographically located in the area of Scarlettwood Court. The rivalry between the Scarlettwood Crips and C3 involves turf battles and shootings.
[7] The Crown brought an application to lead expert evidence on the subject. The Crown argued that the proposed expert evidence would give the jury context. The proposed expert evidence would help the jury understand a shooting that otherwise would have no explanation. Without that evidence the jury would be left to wonder why anyone would simply shoot an unarmed man in the back as he walked down the street.
[8] The common defence position was that the proposed expert evidence was far too prejudicial. Moreover, the defence argued that the proposed expert, Detective Constable Katafigiotis was not qualified.
[9] On February 18, 2020, I ruled that the proposed expert evidence was admissible. I indicated that my reasons would follow. In the meantime, the trial continued. The jury was picked, evidence was heard, and a verdict was rendered. The jury convicted all three accused men of first degree murder. I sentenced them each to 25 years in prison without parole.
[10] The following are my detailed reasons for allowing the Crown’s application.
THE PROPOSED EVIDENCE
[11] The Crown argued that it needed to put the murder in context. In order to do that the Crown needed to explain that the three accused men were members of a violent street gang. The Crown also needed to explain the violent history associated with these gangs. The Crown proposed to rely on expert evidence. The Crown accepted that the evidence would be prejudicial, but argued that it would also be highly probative. The prejudice could be mitigated with a strong jury instruction.
[12] To that end, the Crown sought to introduce evidence regarding the existence of C3, the existence of the rivalry with the Scarlettwood Crips, and the membership of the three men in C3. The Crown sought to qualify Detective Constable Katafigiotis as an expert witness.
[13] The Crown stated in its application:
It is the theory of the Crown that the motive for this murder is inextricably linked to the [accused’s] membership in a violent street gang – “C3” – and that gang’s enmity with the gang from the neighbourhood in which Mr. Ogba was shot dead.
[14] In submissions, Crown counsel, Mr. Zambonini, expanded on the Crown theory. He argued that Mr. Mohamed, Mr. Miller, and Mr. Islow went to Scarlettwood Court to shoot someone. They had an animus towards the Scarlettwood Crips as a result of C3’s rivalry with the Scarlettwood Crips. That animus informed their motive. The motive was to kill someone as part of that rivalry.
[15] The Crown argued that there are three possibilities: first, the killers targeted Mr. Ogba for unknown reasons; second, that the killers targeted someone else and it was a case of mistaken identity; or third, the killers went to Scarlettwoods simply to kill a person on enemy territory. Whether it was one of those specific motives is irrelevant. All are linked to the gang rivalry.
[16] The defence argued that the evidence was neither relevant nor necessary. The defence also argued that DC Katafigiotis was not qualified or independent.
[17] On February 18, 2020 I gave counsel the “bottom line” of my ruling. I found that DC Katafigiotis was qualified to give expert evidence. I set out my ruling in the following executive summary, with the expert evidence that the Crown sought to tender (in bold):
Detective Constable Katafagiotis is qualified to give expert evidence in this case. The following summary sets out the parameters of his testimony in relation to the areas of expertise set out by the Crown in its Notice of Application dated January 9, 2019:
(a) The existence of street gangs, specifically “C3”: DC Katafagiotis is qualified to give expert evidence on the existence of street gangs, including C3. The “gang” evidence is generally admissible, but the Court will require further submissions on the probative value/prejudicial effect of particular individual items of evidence, such as rap videos.
(b) The accused’s membership in or association with “C3”: DC Katafgiotis may testify about gang symbols generally, and those symbols associated with each of the three men that are consistent with membership in C3. DC Katafagiotis may not opine on actual membership where it is based on hearsay statements from informants or others until I have further submissions on this specific point.
(c) The existence of the “Scarlettwood Crips”: DC Katafagiotis is qualified to give expert evidence on the existence the Scarlettwood Crips. This “gang” evidence is generally admissible, but the Court will require further submissions on the probative value/prejudicial effect of particular individual items of evidence, such as rap videos.
(d) Evidence of the back-and-forth between Scarlettwood and C3: DC Katafagiotis is qualified to give evidence about the rivalry between the Scarlettwood Crips and C3.
(e) The concept of street gangs having a core territory and defending it vigorously, including through the use of violence: DC Katafagiotis is qualified to give expert evidence in this area.
(f) The concept of street gangs committing violence in rival neighbourhoods as a form of intimidation or retaliation: DC Katafagiotis is qualified to give expert evidence in this area.
(g) The responses of gang members to perceived attacks on their territory or reputation: DC Katafagiotis is qualified to give expert evidence in this area.
(h) 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: DC Katafagiotis is qualified to give expert evidence in this area.
(i) The structure and organization of gangs generally, including the affiliation of many local gangs to the Bloods and the Crips: DC Katafagiotis is qualified to give expert evidence in this area. It may not, however, be relevant and the Court requires further submission on the point.
(j) The symbols and graffiti commonly used by gangs, including the fact that the Crips often wear blue: DC Katafagiotis is qualified to give expert evidence in this area.
(k) Evidence that gang members can move up in the gang hierarchy by putting in work, which can include committing murder: It is not clear to me whether this evidence is relevant to this particular case. The Court requires further submissions if the Crown wishes to call this evidence.
(l) The loyalty between gang members and what one could reasonably expect with respect to Mr. Islow driving these men to and from the murder: Although DC Katafagiotis is qualified to give expert evidence in the area of gangs generally, the Court is concerned that this point may veer into speculation. Accordingly, he will not be permitted to testify without further evidence and submissions on this point.
[18] The evidence that the Crown wished to call specific consisted of social media (including videos), information from occurrence reports and debriefs, various symbols associated with gangs, and the history of rivalry between the gangs. I required the Crown to provide a list of the specific pieces of “gang evidence” that it intended to call, so that I could make an individual ruling regarding each item.[^1] The Crown did so, and on February 19, 2020 I provided all counsel with the following “bottom line” chart:
ITEM
LOCATION
RULING
Evidence Allegedly Associating Trevaughan Miller and Abdirahman Islow
IMG_0675 – Video including Mr. Miller allegedly making the C3 sign
Islow’s Phone
These four videos are admissible in evidence. The phone was seized from Mr. Islow upon arrest. The video shows an association between Mr. Miller, who is seen in the videos, and Mr. Islow. The videos are also probative of Mr. Miller’s alleged membership or association with C3, given his use of the alleged gang symbol in all four videos. Mr. Miller’s use of the words “gang” and “CRIPS” is also probative of his alleged membership in C3. I see no danger the jury will be distracted by these videos. Any issue of propensity reasoning can be dealt with by way of an appropriate jury instruction.
IMG_0676 – Video including Mr. Miller allegedly making the C3 sign
Islow’s Phone
IMG_0677 – Video including Mr. Miller allegedly making the C3 sign and using the word “gang”
Islow’s Phone
IMG_0970 – Video including Mr. Miller and other rapping about “Crips”
Islow’s Phone
Evidence Allegedly Associating Abdullahi Mohamed and Abdirahman Islow
IMG_0055 – Video of Mr. Mohamed making the alleged 3C sign with Mr. Islow in the background.
Mohamed’s Phone
This video is admissible. It is probative of association between Mr. Mohamed and Mr. Islow. It is also probative of Mr. Mohamed’s alleged membership in 3C. I see little or no prejudicial aspect to this evidence.
IMG_0028 – Video of Mr. Islow and Mr. Mohamed together at the barber shop.
Mohamed’s Phone
This video is admissible. Mr. Mohamed is wearing the jacket that is very similar to the jacket worn by one of the shooters on the video of the murder. It is probative of identification. It is also probative of association between Mr. Mohamed and Mr. Islow. There is little or no prejudicial aspect to this evidence.
Evidence Allegedly Implicating Trevaughan Miller
Tattoo of OTG taken upon arrest
Photo of Mr. Miller’s arm
This photograph is admissible. It is probative of Mr. Miller’s alleged membership in C3. I see little or no prejudicial aspect to this evidence.
Da Kidz Blunts video with Mr. Miller at 27 seconds making the alleged C3 symbol
Internet
This video is admissible. Mr. Miller is seen in this video making the alleged C3 symbol. It is a rap video where the lyrics can be interpreted as speaking about guns, gunshot wounds, gangs, and police. In my view, any prejudicial effect can be dealt with by way of a jury instruction.
Evidence Allegedly Implicating Abdullahi Mohamed
Internet history indicating that Mr. Ogba’s murder was searched on the phone.
Mohamed’s Phone
Counsel agree that this evidence is admissible.
Evidence Allegedly Implicating Abdurahman Islow
IMG_0113 – Video of Mr. Islow leaving the Gucci Store and making the alleged C3 sign.
Islow’s Phone
Counsel agrees that this evidence is admissible.
IMG_0358 – Video of several people holding guns with one person making the alleged C3 sign.
Islow’s Phone
This video is admissible. It is probative of the alleged association between C3 and access to guns. There is clearly some prejudice as it reinforces the connection between Mr. Islow and guns. The probative value outweighs the prejudicial effect, which can be dealt with by way of a jury instruction.
IMG_0629 – Video of Mr. Islow holding up a gold pendant with “Black Creek” on it as well as “C3” in smaller letters.
Islow’s Phone
This video is admissible. It is probative of Mr. Islow’s alleged involvement in C3. Any prejudicial effect can be dealt with by way of a jury instruction.
IMG_0692 – Video of a Colt .45 pistol, apparently held by Mr. Islow.
Islow’s Phone
These videos are admissible. Weapons of both of these types may have been used in the shooting of Mr. Ogba. The fact that Mr. Islow, an alleged party to the murder, is apparently in possession of these weapons is highly probative of his alleged involvement. It is possible that his possession of weapons of this type are a mere coincidence. If so, that is potentially prejudicial. That potential prejudice can be dealt with by way of a jury instruction.
IMG_0699 – Video of a Taurus .45 pistol, held by Mr. Islow while he makes shooting noises.
Islow’s Phone
IMG_0018 – Video of a Taurus .45 pistol, held by Mr. Islow.
Islow’s Phone
IMG_0844 – Video of four guns, including a Glock .45 pistol, a Taurus .45 pistol, a revolver, and a Glock pistol with a laser sight. The words “merk a nigga we gun hurst him” are shown on screen. A happy-face emoji with sunglasses is also projected.
Islow’s Phone
This video is not admissible. I find that the prejudicial effect of this video outweighs the probative value. The probative value is obvious in that it shows Mr. Islow with access to a variety of firearms. It is, however, prejudicial in that it is a small arsenal. As well, the Glock with a laser sight is a slightly more sophisticated weapon. A laser sight usually requires some knowledge to calibrate and zero, and the jury may be distracted by the fact that Mr. Islow is in possession of a weapon of this type. The words also speak of murdering someone. The jury could conclude that Mr. Islow is the type of person who would commit murder.
IMG_0477 – Video of Mr. Islow with large amounts of cash and guns, making the C3 symbol. The words “if u wanna run up on me I AM NOT THAT GUYYY” appear on screen.
Islow’s Phone
This video is not admissible. It is probative of Mr. Islow’s alleged membership in C3, his access to guns, and his involvement in the criminal lifestyle. The prejudicial effect, however, outweighs the probative value.
IMG_0084 – Video of a bag with two guns in it, one of which may be a Colt 1911-style .45.
Islow’s Phone
This video is not admissible. A further video of guns, one of which may or may not be the type that was used to kill Mr. Ogba, simply piles on. While the video is probative of access to guns, the Crown has several videos demonstrating Mr. Islow’s access including videos with what may be the actual murder weapon, or a weapon that could have been the murder weapon. A further video is unnecessary.
Internet history indicating that Mr. Ogba’s murder was searched on the phone.
Islow’s Phone
Counsel agree that this evidence is admissible.
Evidence Applicable To All Three Parties
Mars Dollaz Django (Official Video)
Internet
Counsel agree that this evidence is admissible.
BG – Chess Up (Video)
Internet
Counsel agree that this evidence is admissible.
Teape Videos
Surveillance Cameras
The Crown may call evidence about this incident through DC Katafagiotis in the context of the rivalry between C3 and the Scarlettwood Crips but may not show the videos. The videos are unnecessary and are sufficiently graphic as to be too prejudicial.
ISSUES
[19] Expert evidence is presumptively inadmissible. It may be admitted, however, if the following conditions are satisfied:
• Relevance;
• Necessity in assisting the trier of fact;
• The absence of any exclusionary rule; and,
• A properly qualified and independent expert.
See: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at para. 17.
[20] A properly qualified expert must also be independent. The expert owes his or her duty to the Court, not to any particular party: White, Burgess et. al. v. Abbot and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.
[21] In R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301, Doherty J.A. suggested a two-step process for the admission of expert evidence. At the first step, the trial judge must consider the pre-conditions for admissibility. Doherty J.A. related them to the Mohan criteria by describing them (at para. 80) as:
In what I refer to as the first phase, four preconditions to admissibility must be established, none of which were in dispute at trial:
• the proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;
• the witness must be qualified to give the opinion;
• the proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and
• the proposed opinion must be logically relevant to a material issue.
[22] Doherty J.A. described the second step as a cost-benefit analysis. The trial judge must determine whether the benefits of the expert evidence warrant admission despite the potential harm to the trial process. At para. 76 of Abbey Doherty J.A. described the trial judge as a gate-keeper.
[23] In my view, therefore, the issues I was required to determine on the application were:
(a) Was the gang evidence relevant?
(b) Was the gang evidence necessary in assisting the trier of fact?
(c) Was there a rule that would exclude the gang evidence?
(d) Was DC Katafigiotis a properly qualified and independent expert witness?
(e) Did the benefits to the jury of admitting the evidence outweigh the costs of admitting the evidence to the trial process?
ANALYSIS
(a) Was the Gang Evidence Relevant?
[24] The three defence counsel jointly took the position that the evidence regarding the existence of C3 and its rivalry with the Scarlettwood Crips was not relevant. Each took that position for a different reason. The Crown alleged that Mr. Islow was the driver. Mr. Struthers, counsel for Mr. Islow, argued that there was no actual evidence that the killing was gang-related, and that the Crown was essentially inviting the jury to engage in speculation. In any event, the main issue regarding his client was knowledge – did Mr. Islow reasonably foresee that the two others in the vehicle would commit murder when they got out of the car?
[25] Ms. Freeman for Mr. Mohamed (joined by Mr. Leslie for Mr. Miller), argued that much of the proposed evidence (such as the videos, and the violent attacks) were too remote in time to be useful, and simply too prejudicial. Moreover, counsel argued that motive, the chief reason for the evidence, is not an element of the offence and the Crown need not prove it. In other words, evidence that there was a gang rivalry, and evidence that gang rivalry motivated the shooting, was speculative and therefore irrelevant.
[26] Neither Ms. Freeman nor Mr. Leslie explicitly acknowledged on the application that their clients were the shooters. They did, however, concede that the identification of their clients was extremely strong. As the trial developed, however, their identities as the shooters became clear and the main issue for them was really about the level of their culpability.
[27] I respectfully disagreed with the defence position. The existence of gangs, the alleged membership of the accused in one of the gangs, and the existence of violent rivalry between the gangs were logically relevant to all three accused. It was relevant to the identity of the shooters, to the level of culpability, and to the narrative (as I have noted, as the trial developed, the identity of the shooters – Mr. Mohamed and Mr. Miller – was not contested; the identity of the driver, Mr. Islow, was uncontested from the beginning of the trial). The evidence was especially relevant to the element of planning and deliberation. As Dambrot J. stated in R. v. Riley, Atkins, and Wisdom, 2009 CanLII 15451 (ON SC), 2009 CarswellOnt 1842, [2009] O.J. No. 1374, to simply call the evidence without the background would leave the jury guessing as to the reason for the murder – and invite speculation.
[28] Logical relevance is “a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence”: Abbey at para. 82, quoting R. v. J.(J.), 2000 SCC 51 at para. 47. The threshold for relevance is low.
[29] There is no question that evidence of motive is generally relevant in a criminal trial: R. v. Lewis, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821. Justice Martin noted in R. v. Jackson, 1980 CanLII 2945 (ON CA), 1980 CarswellOnt 1276, [1980] O.J. No. 1468, 57 C.C.C. (2d) 154 (C.A.) at para. 40:
Motive, in the sense of an emotion or feeling such as anger, fear, jealousy and desire, which are likely to lead to the doing of an act, is a relevant circumstance to prove the doing of an act as well as the intent with which an act is done. The relevant emotion may be evidenced by
a. conduct or utterances expressing the emotion,
b. external circumstances which have probative value to show the probable excitement of the relevant emotion, and
c. by its prior or subsequent existence (if sufficiently proximate): see Wigmore On Evidence, 3rd ed., Vol. I, pp. 557-61; Vol. II, pp. 328-29.
A previous threat to kill the victim is admissible to show animus or feelings of hostility.
[30] At para. 43 of Jackson, Justice Martin quoted Lord Atkinson in R. v. Ball, [1911] A.C. 47:
Evidence of motive necessarily goes to prove the fact of the homicide by the accused as well as his 'malice aforethought' inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.
[31] Several cases have considered the admission of “gang” evidence. I will review just a few of them:
[32] In R. v. Ma (1978), 1978 CanLII 2438 (ON CA), 44 C.C.C. (2d) 511 (Ont.C.A.) the accused obstructed justice by intimidating witnesses. The witnesses were to testify that one Fat Law had assaulted and demanded money from To and Chang. Ma (and others) allegedly forced them to sign affidavits alleging the police had forced them to make the allegations. At trial, the Crown alleged that Ma and Law were members of a Triad, or Chinese criminal group. The Crown called evidence to describe the nature of the group and the association of the members. The Court of Appeal found that the trial judge did not err in admitting the evidence. The evidence was also relevant to motive. The evidence was also necessary to place the charge against Ma in perspective. As the court stated:
… without such obviously relevant evidence, the jury would have decided the question of guilt in a vacuum.
[33] R. v. McLeod, [1982] O.J. No. 59 (C.A.): The accused were members of the biker gang Satan’s Choice. They were accused of killing a member of a rival biker gang. The Crown introduced evidence of enmity between the gangs. The Court of Appeal found (at para. 8) that the evidence was admissible as relevant to the question of motive.
[34] The case of R. v. Riley, Atkins, and Wisdom (Riley and Atkin’s appeal dismissed, Wisdom’s appeal allowed: 2017 ONCA 650), mentioned earlier, is very much on point. The Galloway Boyz and the Malvern Crew were street gangs. Their rivalry was violent. Riley, Wisdom, and Atkins were members of the Galloway Boyz. On March 3, 2004 they drove into Malvern looking for members of the Malvern Crew to kill. Tragically, they shot two completely innocent men who had nothing to do with the rivalry. One of the men died. Dambrot J., the trial judge, set out the nature and purpose of the proposed gang evidence at para. 10:
It is the position of the Crown that evidence about the general nature and activities of the gang, evidence of specific acts of misconduct on the part of the three accused and other members of the Galloway Boyz, including gun offences, robbery offences and drug trafficking offences, evidence of the history of the dispute with the Malvern gang and evidence of the organization and activities of the Ride Squads is not being led as evidence of bad character. Rather, it is being led as an essential part of the narrative of the shooting of Charlton and Bell, which is central to the proof of all three offences, and is admissible for that reason. In addition, much of this testimony is evidence of animus or motive in relation to the shooting. As a result, in addition to being essential to the unfolding of the narrative, some of it is relevant to the issues of identity and planning and deliberation, and so is admissible on that basis as well.
[35] The defence position in Riley was that the proposed evidence was simply bad character evidence and therefore irrelevant and inadmissible. Even if the evidence was relevant, the prejudicial effect far outweighed the probative value.
[36] Dambrot J. noted that evidence of bad character is generally inadmissible. It may be admitted, however, if it is relevant to an issue beyond character and its probative value outweighs its prejudicial effect. When considering the narrative aspect of the evidence, Dambrot J. said this at para. 38:
In this case, in my view, leaving aside the criminal organization charge, the Crown must be entitled to lead evidence that the accused were in a gang, that the gang was in a war with another gang, and that at least in part as a result of the killing of their leader, some of the gang members formed a squad with the general purpose of finding and shooting rival gang members. It will be recalled that the victims of this shooting were not in fact members of the rival gang. There will be evidence lead by the Crown that the accused were intending to shoot rival gang members on this occasion, and shot non-members in error. Without this background, the jury will be left to puzzle over an allegation of a senseless shooting by individuals who had no motive to do it. They will 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. While it is imperative that limits be placed on the bad character evidence sought to be introduced by the Crown, and that strong instruction be given to the jury about how to use the evidence that is admitted, I do not think that the jury should be expected to decide this case on the basis of some artificially crafted, antiseptic version of the case.
[37] Dambrot J. ultimately concluded at para. 65 that the evidence could be admitted as essential to context and narrative. The potential prejudice must be controlled, of course, by “strong and careful” jury instructions.
[38] Dambrot J. then turned to the question of animus and motive. He noted at para. 74 that that “animus and motive are not the same thing, but it is very difficult to discuss them in isolation from each other. In general, it might be said that animus towards another individual is simply a step in the formation of a motive to do harm to that individual.” Evidence of animus was admissible in order for the jury to evaluate whether the accused had a motive. Finally, Dambrot J. considered that the gang evidence was relevant to planning and deliberation, an essential element of first degree murder.
[39] On appeal, the defence alleged multiple errors by the trial judge with regard to jury selection, severance, and the gang evidence. The Court of Appeal largely dismissed these challenges. The Court found that the trial judge had erred in admitting one specific piece of evidence against Wisdom and ordered a new trial for him, but upheld the convictions for Riley and Atkins.
[40] The case of R. v. Skeete, 2012 ONSC 737 (appeal dismissed 2017 ONCA 926) did not involve gang evidence. Nonetheless, the case is also relevant to the issue of motive. The victim, Mark, confronted a youth, J.B., at a housing complex. J.B. had shown a handgun to children. Among the children were Mark’s nieces and nephews. J.B.’s brother was Lamar Skeete. A few weeks after the confrontation someone shot Mark in the back. Mark did not die. He gave the police a statement identifying J.B. as the shooter and Skeete as his accomplice. J.B. and Skeete were charged with attempted murder. The Crown withdrew the charges against Skeete on the eve of trial. Ewaschuk J. of this court acquitted J.B. J.B. and Skeete each spent about 13 months in pre-trial custody. About two weeks after they were released from custody, someone shot Mark in the back of the head. This time Mark died. Skeete was charged with first degree murder.
[41] At trial the Crown applied to introduce evidence related to the attempted murder. The Crown’s theory was that Skeete was motivated by animus towards Mark. The animus arose because Mark “snitched” to the police. The snitching resulted in Skeete spending 13 months in custody. Nordheimer J. (as he then was) found that the evidence was relevant to motive. In following Dambrot J.’s reasoning in Riley, he stated:
A jury ought to be provided with information that will allow them to put the central facts into context including the nature of the relationships between persons connected to the events that might not otherwise be obvious. Jurors should not be placed in a situation where they are attempting to perform their truth seeking function in what is effectively either a factual vacuum or an artificial one.
[42] The jury convicted Skeete of first degree murder. The Court of Appeal upheld the conviction.
[43] In my view, the gang evidence met the test of relevance. It seemed to me that if the Crown could show that one or all of Mr. Mohamed, Mr. Islow, and Mr. Miller were members of (or associated with) a gang, and that gang had an animus towards another gang in the territory where Mr. Ogba was shot, and that members of this rival gang have a tendency to shoot each other, then all of that evidence would be logically relevant.
(b) Was the gang evidence necessary in assisting the trier of fact?
[44] The defence position was that the expert evidence was not necessary to assist the trier of fact. Ms. Freeman, in particular, argued that the jury did not need an expert to explain the concept of gangs and gang rivalries. The existence of gangs is common knowledge, and the link between gangs and some types of music videos is a feature of modern culture. Citizens are well aware of that link. As a result, the expert evidence was unnecessary. Mr. Struthers did not propose to contest the presence of gangs in Toronto. Rather, he argued that the proposed gang evidence was simply not necessary because the Crown had strong identification evidence. The proposed gang evidence added nothing to the Crown’s case. Mr. Leslie adopted the submissions of Mr. Struthers and Ms. Freeman.
[45] Again, and with great respect, I disagreed with the defence position. As Dambrot J. noted in Riley, and Nordheimer J. (as he then was) noted in Skeete, without the background evidence the jury would have had no context for the shooting. The jury would be left to puzzle – and to speculate – why a couple of individuals were dropped off in a parking lot, stalked Mr. Ogba, shot him in the back, and ran away. Like the victim in Riley, Mr. Ogba had no connection to gang rivalries or drug dealing or organized crime. It was necessary for the jury to understand not just the “what happened” of the shooting, but also the “why did it happen” in order to make sense of the culpability (or otherwise) of each accused person. The only way to do that was through the proposed gang evidence. That made it necessary.
[46] Whether or not expert evidence is necessary is a factual question, particular to each case. That said, courts have often acknowledged the necessity of “gang” evidence in these types of cases.
[47] For example, R. v. Boswell, 2011 ONCA 283 also involved a gang killing. There was an eyewitness to the shooting, Sharp. Sharp initially identified the shooter, but he subsequently recanted. The Crown sought to explain that there was a “code of silence” that prevailed in the community. The code of silence, allegedly, required that residents not provide information to the police. The residents either did not trust the police, or feared retaliation from the gangs. The Crown sought to call an expert to explain the code of silence. The trial judge admitted the evidence. The Court of Appeal had little difficulty finding that the expert evidence was relevant. The Court also agreed with the trial judge that the evidence was necessary:
As the trial judge observed, knowledge of the existence of such a cultural phenomenon and of its implications are not matters within the everyday experience of the average person, even in Toronto.
[48] Another example is R. v. Mills, 2019 ONCA 940. Two men, Celise and Flavius, were walking in an area allegedly controlled by the street gang MOB Klick. MOB Klick was allegedly affiliated with the “Blood Nation” or Bloods. The Bloods were associated with the colour red. MOB Klick had a rivalry with another gang, the Eglinton West Crips. The Crips were associated with the colour blue. Mills and Williams allegedly approached Celise and Flavius and confronted them. Mills and Williams wanted to know why Celise and Flavius were wearing the “wrong” colours for the area. Flavius turned and ran away. Mills allegedly shot him in the back. He was charged with first degree murder; Williams was charged with second degree murder.
[49] The Crown theory was that Mills and Williams murdered Celise because they were members of rival gangs. The Crown sought to introduce expert evidence to show that members of MOB Klick had an animus towards members of the Eglinton West Crips. That animus provided a motive for the shooting. The Crown also sought to introduce expert evidence to show the importance of colours for gang affiliation.
[50] The Court of Appeal found that the expert evidence was necessary for the jury to understand matters that lay beyond their knowledge:
In order to understand the evidence elicited in support of that theory, such as the YouTube rap videos, handwritten documents containing rap lyrics, and graffiti in public places, the jurors required the assistance of an expert witness to explain matters that lay beyond their ken… For instance, the jury needed to understand that street gangs exist, that they are territorial in nature, that they mark their territory in different ways, that they associate with different colours (red being the colour of the Blood Nation and blue being the colour of the Crip Nation), and that they use different hand signals to demonstrate their gang membership.
[51] In my view, the Court of Appeal’s comment applies to this case as well. It may well be common knowledge in the community that gangs exist and that they are violent. There are, however, important aspects of gang culture that are simply not as well known. There are attributes of particular gangs that the average member of the community (and by extension the average juror) would be unlikely to know anything about. These include the existence of the particular gangs in this case; the concept of gang territory and the defence of that territory; the use of violence and murder to intimidate; the relationship of rap videos to the various gangs; and the symbols associated with particular gangs. Ultimately, I found that the jury required expert evidence to assist them in understanding these things. The expert evidence was, therefore, necessary.
(c) Was there a rule that would exclude the gang evidence?
[52] As noted, the rule against discreditable conduct would ordinarily exclude conduct that falls outside of the indictment. As the Court of Appeal commented in Riley, Atkins, and Wisdom, however:
The law in this area is well-established and need not be recounted in great detail. In a criminal trial, the Crown may adduce evidence of an accused person's "bad character" if that evidence is relevant to an issue at trial (apart from the accused's mere propensity to commit the offence in question) and the probative value of such evidence outweighs its prejudicial effect…
[53] As I explain below in my cost-benefit analysis, the probative value of the evidence outweighed the prejudicial effect.
(d) Was DC Katafigiotis a properly qualified and independent expert witness?
[54] All three defence counsel took the position that DC Katafigiotis ought not to be permitted to testify as an expert witness. They raised a number of objections to his evidence. They argued that he lacked the necessary knowledge. He had not done sufficient research. He had not debriefed enough gang members. He had never worked as an undercover officer. He had never been in charge of a wiretap project. His evidence regarding the existence of gangs, gang symbols, gang culture, and gang rivalries was based on speculation. DC Katafigiotis had given evidence in other proceedings as an expert witness but he had not been qualified to give evidence in this Court. Indeed, in 2016 Nordheimer J. found that he was not qualified to give expert evidence: R. v. O.(F.), 2016 ONSC 724.
[55] I think it is clear that defence counsel overmatched DC Katafigiotis. Skilful cross-examination exposed flaws in his qualifications and experience. There are areas where he could have done better. That said, after carefully considering the submissions made by defence counsel, I found that DC Katafigiotis was still qualified to give expert evidence. The flaws in his expertise were either in areas that are not relevant to the proposed area of expertise, or were matters that went to the weight, rather than the admissibility of his evidence.
[56] In making this finding, I was mindful of my role as a gate-keeper. I was aware that experts can sometimes be perceived as authoritative simply because they appear to have a mastery of the material in an area that is foreign to a jury. In my view, that danger with DC Katafigiotis was minimal. The limits of his knowledge and expertise, I found, could be dealt with by way of a jury instruction.
[57] It was clear that through his training and experience, DC Katafigiotis was able to give general evidence about street gangs in Toronto. He had clearly spent a great deal of time becoming acquainted with the subject. In my view, skillful cross-examination by experienced defence counsel exposed the limits of his expertise but did not undermine it.
[58] In this regard, I take a similar view to Nordheimer J. in O.(F.). In that case, the Crown sought to tender DC Katafigiotis “to elicit expert evidence to establish the existence of a gang in the Chester Le area of Toronto and that the respondent is a member of that gang”. Nordheimer J. found several problems with DC Katafigiotis’ evidence. The main problem was that he had never worked in Chester Le, had never debriefed any member of a gang from Chester Le, and knew nothing of the history or hierarchies of the Chester Le gangs. It is little wonder that he could not be qualified to give evidence regarding a gang about which he knew little.
[59] On the other hand, Nordheimer J. did not entirely dismiss DC Katafigiotis’ knowledge. In particular, at para. 20-21 of that case Nordheimer J. stated:
As I earlier noted, it is important that the bar for qualifying persons as experts, and thereby permitting them to give opinion evidence to courts, especially to juries, be maintained at a high level in order to avoid the risks inherent in expert evidence. In my view, the officer does not currently have the degree of peculiar knowledge or special experience regarding street gangs that would qualify him as an expert on the subject, at least to the extent to which the prosecution seeks to qualify him. On that point, I contrast the background and experience of this officer with that of other police officers who have been qualified as experts on gangs in this court…
In reaching my conclusions, I am not saying that the officer might not be able to be qualified for the purpose of giving evidence on gangs in a very general way. Indeed, he might be able to be qualified in some of the areas for which the prosecution sought his qualification. That said, I would at his juncture add, on this particular point, that there is a somewhat fuzzy line when it comes to evidence about gangs between expert evidence and factual evidence. In my view, any given police officer, who has the appropriate degree of experience in a particular Division in this city, could give evidence regarding the existence of a gang in that Division, not as an expert but simply as a matter of fact. It becomes a different matter, however, when it is sought to move beyond that area of factual experience to evidence of a more general nature regarding gang identifiers or markers from which it is then sought to offer broader hypotheses about the existence and/or activities of gangs. That type of evidence then moves from fact to opinion and must meet a much higher threshold for admission.
When one moves from evidence of gangs in general to the issue of identifying any given individual as a gang member, however, the evidence takes on an entirely different dimension. The expert then claims to be able to place the gang label on a particular individual — usually someone who is accused of very serious crimes. It is the type of evidence that, in a case such as this, carries with it the very real prospect that, if the opinion is accepted by the jury, they will immediately move from that acceptance to a finding of guilt…
[60] DC Katafigiotis was obviously aware of Nordheimer J.’s findings. In the four years between the ruling in O.(F.) and this case he took steps to remedy the issues noted by Nordheimer J. For example, DC Katafigiotis went to Los Angeles to do “ride-alongs” with members of the Los Angeles police force so that he could learn about gangs and gang membership there. It is true that he was unable to debrief as many gang members as he wished on that trip – but that is hardly his fault. He also took additional courses, and spent time reading debriefing reports and other documents.
[61] There is a very important difference between this case and O.(F.). Here, he took steps to familiarize himself with the gangs, the rap musicians, and the individuals involved. As well, and unlike in O.(F.), DC Katafigiotis had actually worked in the area where the shooting took place.
[62] Defence counsel also pointed out that DC Katafigiotis incorrectly defined “confirmation bias” in his testimony. He defined “confirmation bias” as being someone as biased in relation to their opinions. Confirmation bias is widely agreed upon as a tendency to interpret new evidence in a way that agrees with one’s existing theory. I would be more troubled if I saw evidence of actual confirmation bias. It is potentially disqualifying if a proposed expert displays confirmation bias. I do not think that it is necessarily disqualifying if a proposed expert does not give a proper definition of confirmation bias.
[63] Did DC Katafigiotis display confirmation bias? I found no evidence that he did display confirmation bias. DC Katafigiotis did not theorize in his evidence that the accused were guilty, and then look for evidence to support that theory. If DC Katafigiotis clearly did have a theory that the accused were members of C3, but I did not permit him to opine on their actual membership.
[64] Was DC Katafigiotis actually biased based on his role as a Toronto Police officer? In Mills, the defence argued that DC Backus was biased due to his membership in the Toronto Police, the agency that was investigating the accused. The Court of Appeal found that the fact that the expert witness was from the same police force was not in and of itself disqualifying: see para. 62. I found no evidence that DC Katafigiotis was compromised by his membership in the Toronto Police. Other than his membership in the Toronto Police, there was nothing to indicate that he was not able to give an independent opinion.
[65] Realistically, aside from the occasional academic, the people most likely to study gangs in the detail required in a jury trial are often to be found in the police force. Although there are criminologists and sociologists who are undoubtedly learned and knowledgeable, gaining information about specific gangs, their rivalries, and their culture – which is something studied at a discrete level – is not something that is likely to be learned in a classroom.
[66] Overall, I found that DC Katafigiotis was qualified to give expert evidence.
(e) Did the benefits to the jury of admitting the evidence outweigh the costs of admitting the evidence to the trial process?
[67] Doherty J.A. in Abbey at para. 79 described the cost-benefit analysis as in exercise in judicial discretion involving the weighing and identifying of the competing considerations to determine admissibility. This is the gate-keeper function of the trial judge.
[68] Mr. Struthers (with Ms. Freeman and Mr. Leslie in support) took the position that the evidence was simply too prejudicial to be relevant. The potential gang evidence encompassed disreputable conduct beyond that alleged in the indictment. It was prima facie inadmissible. There was a danger of that a jury would engage in reasoning prejudice and moral prejudice. Jurors could assume guilt because the Crown was able to show membership or association with a violent criminal gang. Jurors may also have impermissibly reasoned that as gang members, one or more of the accused are the type of person that would commit a random murder. I agree with Mr. Struthers that the potential prejudicial effect was real.
[69] That said, some of the aspects of the costs associated with the expert evidence were low. The proposed expert evidence was not especially complicated – a topic need not be complicated to be the subject of expert evidence. The evidence did not involve the expert explaining complicated scientific concepts, for example. It was not likely to be especially time consuming. The prejudicial effect was to be mitigated by proper instructions to the jury. Those instructions were to carry a warning about the uses that could and could not be made of the evidence.
[70] Furthermore, the probative value of the evidence was high. As I have already noted, the evidence was both relevant to the critical issues in the case, and necessary for the jury to understand the context. Without that evidence, the jury would have no way of evaluating motive. The jury would also need that evidence to evaluate whether the Crown had prove planning and deliberation. Upon balancing probative value and prejudicial effect, I ultimately found that the probative value outweighed the prejudicial effect, especially since the prejudicial effect could be mitigated.
DISPOSITION
[71] The Crown’s application was allowed and the evidence admitted as set out in the chart in these reasons.
[72] By way of post-script, I note that identity was no longer a live issue by the end of the trial. Mr. Mohamed testified that he fired his gun in the air at least once over Mr. Ogba, and that it was Mr. Miller who actually shot Mr. Ogba by mistake. He also testified that Mr. Islow drove the car that took them to Scarlettwood Court.
R.F. Goldstein J.
Released: August 24, 2020
COURT FILE NO.: CR-18-50000593-0000
DATE: 20200824
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ABDULLAHI MOHAMED, ABDIRAHMAN ISLOW, and TREVAUGAN MILLER
REASONS FOR JUDGMENT ON APPLICATION TO ADMIT EXPERT EVIDENCE
R.F. Goldstein J.
Released: August 24, 2020
[^1]: I use the term “gang evidence” as a form of shorthand simply to identify the nature of the evidence.