REASONS FOR DISMISSING APPLICATION TO REVISIT RULING ON GANG EVIDENCE

[1] On May 25, 2017 I ruled that the expert evidence of Sergeant Aman Nasser was admissible in this proceeding: R. v. Oppong, 2017 ONSC 3143. In summary, I ruled that he could give the following evidence:

• That IDS is a street gang;

• The general characteristics of a street gang;

• The association of street gangs with particular neighbourhoods or "huf”, homage, alliances, and disrespect to rival gangs;

• Methods that gang members will use to identify themselves as members of a street gang including clothing, tattoos, jewellery, social media, and videos; and,

• Gang ideology.

[2] I ruled that Sergeant Nasser was not permitted to identify any of the accused persons in the case as a member of IDS. I ruled that he was, however, permitted to opine that individual items of evidence are consistent with membership in a street gang.

[3] The accused apply to revisit my ruling on May 23 and 24. Counsel were prepared to make the following admissions:

[4] Mr. Rodocker, on behalf of Mr. Oppong, was prepared to admit:

• That IDS existed;

• That Mr. Oppong was a member of IDS; and,

• That if the jury found that the acts were committed that it was at the behest of a criminal organization.

[5] Mr. Sing, on behalf of Mr. Thomas, was prepared to admit:

• That IDS existed;

• That Mr. Thomas was a member of IDS; and,

• That if the jury found that the acts were committed that it was at the behest of a criminal organization.

[6] Mr. Jaksa, on behalf of Mr. Thomas-Stewart, was prepared to admit:

• That IDS is a street gang;

• That association with other members is one of the characteristics of a gang member;

• His associations on Jan 17 2013; July 17 2013; Nov 21 2014; and Feb 14 2015.

[7] Mr. Thomas-Stewart was not prepared to admit that he was a member of IDS. He was also not prepeared to admit that if the allegations of his conduct were proven it was for the benefit of a criminal organization.

[8] On May 25, 2017, I indicated that the application to re-open was dismissed. I indicated that I would prepare written reasons to follow. It was brought to my attention in 2020 that I had not issued my written reasons. I then ordered transcripts and retrieved my notes in order to determine what had happened. I discovered that I had prepared a rough draft of reasons at the time, but through inadvertence on my part I had not completed the reasons or issued them. Accordingly, what follows are my reasons for dismissing the application to revisit. I wish to note that this inadvertence was solely my own, and that the court staff are not responsible in any way.

[9] Mr. Rodocker, on behalf of Mr. Oppong, argued that he and the other counsel were prepared to make admissions that went beyond the scope of the proposed evidence of the expert. That constituted a material change of circumstances. The Crown, he argued, cannot refuse an admission, cannot refuse to accept an agreed statement of fact, and the accused in proffering a statement must, in turn, make all necessary admissions. The material change of circumstances is the defence willingness to make these concessions.

[10] Mr. Singh, on behalf of Mr. Thomas, adopted Mr. Rodocker’s arguments. He also argued that I should re-assess the the probative value vs. the prejudicial effect of the evidence of Sergeant Nasser in light of the proposed concessions. Sergeant Nasser’s testimony would serve only one purpose. That purpose would be to bolster the credibility of Dontay Haye, something not permitted.

[11] Mr. Jaksa, on behalf of Mr. Thomas-Stewart, indicated that his client was in a different position. He was not prepared to make the same wide-ranging admissions made by the other counsel. Nonetheless, he agreed that I should revisit my original ruling.

[12] In my view, there was no basis to revisit the ruling. The willingness of the defence to make some admissions did not constitute a material change of cirucmstances.

[13] A trial judge has authority to revisit a ruling as long as he or she is not functus. It may be appropriate to revisit the ruling where there has been a material change of circumstances: R. v. Gager, 2012 ONSC 2697 at paras. 83-85, relying on R. v. Adams, [1994] 4 S.C.R. 707 at para. 29 and R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 at para. 28.

[14] In order for the change of circumstances to be material, it must “alter the balance between the prejudicial effect and probative value” of the evidence: Gager at para. 86, relying on R. v. Sessions, [1996] A.J. No. 1055 (Alta.C.A.).

[15] There is a significant difference between admitting facts pursuant to s. 655 of the Criminal Code and admitting the thrust of expert evidence that goes to assisting the jury in understanding the context of the case. The accused were willing to make certain admissions: Criminal Code s. 655; R. v. G.(D.M.), 2011 ONCA 343 at paras. 47-49, 53; R. v. Fong, 1994 ABCA 267 at para. 7. In this case, the Crown’s key witness was Dontay Haye. The admissions that the defence proposed to make did not assist the jury in understanding the context of Dontay Haye’s evidence. The admissions the defence was willing to make were factual admissions without context. The key point about Sergeant Nasser’s evidence is that it is supposed to help the jury understand the background. The proposed admissions do nothing to advance the jury’s understanding without context.

[16] I did not agree that the expert evidence is an attempt at oath-helping, to shore up Dontay Haye. As I stated in my original ruling, the purpose of the expert evidence was to allow the jury to understand his evidence given the circumstances of a gang-related offence. Nothing about the proposed defence admissions changed that.

[17] Moreover, this was a joint trial. Even if I had accepted that the proposed admissions were a material change, there would have been great difficulties in managing the trial where one of the accused was not prepared to make the same admissions as the other two.

[18] In my respectful view, the situation here was different from that in Gager. In that case, Clarke J. of this Court revisited his ruling with regard to two letters written by the accused while he was in pre-trial detention. The reason for the change was that the accused had given evidence in contradiction. In other words, the material change crystallized with the evidence of the accused. That is not the case here.

[19] The defence also relied on R. v. Lee, 2016 ONSC 4202. That case was a fairly standard analysis of an application by the Crown to admit similar fact evidence. The accused was charged with murder. He had earlier pleaded guilty to manslaughter. The mechanism of injury in both cases was alleged to be similar. In my respectful view that case did not apply as well.

[20] Mr. Rodocker also contended that the general characteristics and circumstances of street gangs are things that can be struck by way of agreed statement of facts. The Crown should not be entitled to proffer what is otherwise prejudicial evidence. The problem with that submission was that an agreed statement of facts has to be the subject of agreement. The Crown did not agree. A trial judge has no power to compel any party to make agree to make a concession it is not otherwise prepared to make.

[21] Accordingly, I there was no need to revisit my original ruling.

DISPOSITION

[22] The application was dismissed.

Released: December 15, 2020

COURT FILE NO.: CR-16-50000291-0000

DATE: 20201215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DEREK OPPONG, AKIDO THOMAS, AND RAHEEM THOMAS-STEWART

REASONS FOR DISMISSING APPLICATION TO REVISIT

R.F. Goldstein J.

R. v. Oppong, 2020 ONSC 7844

Case Summary

REASONS FOR DISMISSING APPLICATION TO REVISIT RULING ON GANG EVIDENCE

DISPOSITION

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1