COURT FILE NO.: CR-18-R1903
DATE: 2021/09/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CURTIS GRAVELLE
– and –
NICHOLAS WHILLMETT
– and –
DERRICK LATOURELLE
Defendants
Counsel:
Lia Bramwell, for the Crown
Joseph Addelman, for Curtis Gravelle
Celine Dostaler, for Nicholas Willmett
Ryan Durran, Derrick Latourelle
HEARD: August 16 to 20, 2021 (by videoconference)
DECISION
Parfett J.
[1] The Crown in this matter is seeking to have Det. Laura Empey of the Belleville Police Service qualified as an expert to give evidence about the Hells Angels (HA) and the Red Devils (RD) outlaw motorcycle gangs, including:
What they are;
How they operate, including whether they make money and, if so, how;
Membership processes and protocols;
How one moves between them;
Clothing associated with them;
Tattoos associated with them;
Brand identification as it relates to them;
The monitoring, protecting and enforcement of gang processes and protocols, including those relating to who is allowed to wear gang tattoos and the removal process;
Whether the following people are members of either the Hells Angels or the Red Devils:
a. Gravelle
b. Willmett
c. Latourelle
d. Creswell (former co-accused, pleaded guilty)
e. Kyle “Moose” Kirkland (posted Facebook message about Kornyk and tattoo); and
f. Keith Earle (apparent recruiter of Latourelle).
The interpretation of text messages and chats sent on the date of the incident between members of the group, including the hierarchy of the members and the expectations, if any, on the members to respond; and
What influence, if any, Kyle “Moose” Kirkland’s Facebook post about Jason Kornyk would have had on Ontario members of the HA.
SUMMARY OF ALLEGATIONS
[2] At approximately 8:28 p.m. on March 15, 2018, the complainant, Jason Kornyk attended what was supposed to be a pre-arranged meeting with an associate of his at a poutine shop in the Vanier area of Ottawa. Shortly after his arrival, Mr. Kornyk saw two very large men enter the restaurant. The men are alleged to have been Curtis Gravelle and Jimmy Creswell.
[3] While Mr. Creswell stayed at the door, Mr. Gravelle approached Mr. Kornyk and told Mr. Kornyk that Mr. Kornyk had a tattoo and that he, Mr. Kornyk, would be coming with Mr. Gravelle to have it ‘covered’[^1]. Mr. Kornyk refused to go with Mr. Gravelle and pulled out his phone and dialed 911. Mr. Gravelle and Mr. Cresswell quickly left the restaurant and fled the area.
[4] They were arrested a short time later in a truck with two other people, Mr. Latourelle and Mr. Willmett. Found in the truck was a blow torch.
[5] The Crown seeks to prove that Mr. Gravelle, Mr. Latourelle and Mr. Willmett intended to use the blow torch to forcibly remove a tattoo on Mr. Kornyk’s arm. This tattoo referenced the Hell’s Angels and used the Hell’s Angels logo.
LEGAL PRINCIPLES[^2]
[6] The starting point for any analysis of the admissibility of expert evidence is that it is prima facie inadmissible unless it meets the requirements as set out in R. v. Mohan[^3].
[7] The evidence must meet four threshold criteria:
• Relevance;
• Necessity;
• Not otherwise subject to an exclusionary rule; and
• The expert is properly qualified.
[8] The last criterion has been recently held in the White Burgess case to include the requirement that the expert be impartial, independent, and unbiased.[^4]
[9] The inquiry into the admissibility of expert evidence is a two-step process. At step one, the Applicant must establish the threshold requirements of admissibility: relevance, necessity, absence of an exclusionary rule and a properly qualified expert.
[10] At step two, the judge balances the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks. This process is described in R. v. Abbey No. 1 as a “case-specific cost-benefit analysis.”
[11] The “benefit” side involves a consideration of the probative value of the evidence in question and the significance of the issue at which it is directed. Reliability of the evidence must be considered as part of the probative value analysis. Reliability concerns are described in R. v. Abbey No. 1 as:
[reaching] not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert’s expertise and the extent to which the expert is shown to be impartial and objective.[^5]
[12] When assessing the “cost” side of the cost benefit analysis, the trial judge is addressing the various risks inherent in admitting expert evidence, described as “consumption of time, prejudice and confusion.”[^6] The most important danger cited is that the jury will abdicate its fact-finding role because of being blinded by or overly impressed by the evidence of an expert.[^7]
[13] Relevance is described as ‘logical relevance’. In other words, the proffered evidence must tend to make proof of a fact in issue more likely than proof of that fact would be without the evidence.[^8]
[14] Necessity refers to an assessment of whether the jury could decide an issue without that opinion evidence. If it could not, then the necessity criterion is met. As noted very recently by the Ontario Court of Appeal,
To meet the Mohan criterion of necessity, the question is whether the expert will provide information which is likely outside the ordinary experience and knowledge of the trier of fact. “The subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge”. Expert evidence is not necessary if triers of fact can form their own conclusions without help because to do otherwise risks abdicating the role of deciding the facts to the expert. “Necessity” means that the evidence must be more than merely “helpful”, but necessity need not be judged “by too strict a standard”.[^9]
[15] The absence of an exclusionary rule means exactly what it says. As noted in Mohan,
Compliance with criteria (a)[relevance], (b)[necessity in assisting the trier of fact] and (d)[a properly qualified expert] will not ensure the admissibility of expert evidence if it falls afoul of an exclusionary rule of evidence separate and apart from the opinion rule itself. For example, in R. v. Morin, evidence elicited by the Crown in cross-examination of the psychiatrist called by the accused was inadmissible because it was not shown to be relevant other than as to the disposition to commit the crime charged. Notwithstanding, therefore, that the evidence otherwise complied with the criteria for the admission of expert evidence it was excluded by reason of the rule that prevents the Crown from adducing evidence of the accused’s disposition unless the latter has placed his or her character in issue…[^10]
[16] A properly qualified expert is generally someone who has been trained in a particular discipline. On the one hand, as noted by the Supreme Court of Canada in Mohan and reiterated by the Ontario Court of Appeal in R. v. Mills, expert evidence can be provided by a witness who has “acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.” On the other hand, a witness can be qualified whether his or her expertise was acquired through on-the-job experience or through formal education, or a combination of both. In other words,
Just because that specialized knowledge is gained on the job, sometimes developed through the “accumulated wisdom” of a group of people, does not, on its own, diminish its value (assuming it otherwise means the criteria for admission).[^11]
DETECTIVE LAURA EMPNEY’S QUALIFICATIONS
[17] Det. Laura Empey is a police officer with the Belleville Police Service. She has 25 years’ experience including 10 years with the Drug/Gun & Gang/Intelligence units. In 2018, she joined the provincial Biker Enforcement Unit (BEU). As part of her experience with the Drug Unit and the Guns and Gang Unit, she investigated cases involving biker gangs. Since May 2021, she has returned to Belleville Police, although she continues to liaise with the BEU. Her statement of qualifications is filed as Exhibit #1 on this hearing.
[18] As part of her experience with the BEU, Det. Empey testified that she was assigned as a primary investigator for several outlaw motorcycle gangs.[^12] In that role, she monitored the membership of each of these gangs. She was present during the execution of search warrants at the premises of motorcycle clubs and she attended events put on by motorcycle clubs. The purpose of this activity is to monitor membership, changes in membership and the status of individuals within the membership. On occasion, she has talked directly with members of motorcycle clubs.
[19] She provided information she gathered to other police officers as needed. In addition, she can and has accessed the intelligence gathered by other members of the BEU on biker gangs who are outside her primary area of responsibility.
[20] Det. Empey indicated that most of her experience is with the various clubs associated with the Outlaws Motorcycle Club. However, she has also monitored local Hell’s Angel clubs and Red Devils clubs.
[21] Det. Empey testified that she was involved in a project called ‘Skylark’ from March to August 2019. The primary focus of this investigation was the Hell’s Angels Nomads and the Red Devils. According to Det. Empey, the Nomads are an Ottawa branch of the Hell’s Angels and the Red Devils are a support club for the Nomads.
[22] Additionally, from January to June 2016, she assisted in protecting a witness who had been a member of an outlaw motorcycle club. She spent many hours talking to him and consequently, expanded her understanding of the motorcycle club sub-culture.
[23] Det. Empey advised the court that she has never previously been qualified as an expert in the motorcycle club sub-culture.
ANALYSIS
[24] Defence counsel argue that the expert evidence proposed by the Crown should not be admitted as it failed to meet three of the four criteria in Mohan: necessity, reliability, and a properly qualified expert.
1. Properly Qualified Expert
[25] Defence counsel argued that Det. Empey lacks the necessary qualifications to be considered an expert witness.
[26] I do not agree. Det. Empey has considerable experience dealing with outlaw motorcycle clubs both in her time with the drug unit and the guns and gang unit. In addition, she worked for the Provincial Biker Enforcement Unit exclusively for three years. That unit’s entire focus is outlaw motorcycle clubs. Her experience is primarily with the Outlaws clubs. However, she also has significant experience with the two specific clubs that are at issue in this case: the Hell’s Angels Nomad club and its support club, the Red Devils MC.
[27] As noted earlier, the Mills case states, expert evidence can be provided by a witness who has “acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.” [^13]
[28] In addition, the fact Det. Empey has not previously been qualified as an expert is not a bar to her being so qualified on this occasion. As stated in R. v. Sadiqi, that fact is “of no consequence…Many expert witnesses have been qualified in courts on many occasions. Each at some time, however, faced being qualified for the first time…So be it.”[^14]
2. Necessity
[29] Defence counsel argued that no expertise was required in several areas that were covered in Det. Empey’s report: her personal observations in relation to motorcycle clubs in general, the Red Devils Club in particular as well as the membership.[^15] They also contended that no expertise is required in relation to any of the communications between the accused and other members of the HAMC and RDMC.
[30] I disagree in part. The critical issue in the present case is whether the accused confronted Mr. Kornyk with the intention of ensuring that his tattoo of a death head Hell’s Angel logo was removed forcibly and that the blow torch they had with them was for that purpose.
[31] Consequently, an understanding of the nature of motorcycle clubs, their organization, hierarchy, membership requirements as well as the fact they consider their logos to be uniquely associated to their clubs is an integral part of the context in this case. Without that understanding, the jury would be left in the dark about the purpose of the confrontation.
[32] I agree with the comments in R. v. Parente that,
the evidence of [the expert] is necessary to allow the jury to appreciate the significance of the evidence particular to a club such as the Outlaw Motorcycle Club. For example, the wearing of a patch, the meaning of 1%" and the hierarchy of the Outlaw Motorcycle Club is information beyond the ken of an ordinary juror.[^16]
[33] I also agree that expert evidence is necessary in relation to motorcycle clubs for the reason set out in R. v. Oppong that, “It would have been wrong for the jury to rely on their own beliefs based on anecdotal experience and popular media about gang ideology and membership.”[^17]
[34] Consequently, Det. Empey will be permitted to testify to sections A to E & G of her report.
[35] I agree with Defence counsel that the communications between the accused and other members of the motorcycle clubs do not require any expertise to be understood. They speak for themselves and contain virtually no coded language that might require interpretation. Therefore, Det. Empey will not be permitted to testify to any of those sections of her report.[^18]
3. Reliability
[36] Defence counsel object to Det. Empey testifying about the evidence in relation to the lengths to which a motorcycle club will go to ensure no one who is not a member does not wear a ‘death head’ logo tattoo. They argue that the supporting evidence in relation to this part of Det. Empey’s report is hearsay and is not sufficiently reliable to justify its reception into evidence.
[37] The Crown contends that any issues of reliability should go to the weight to be attributed to the evidence.
[38] As set out in R. v. Lavallee, an expert opinion is admissible even if it is based on second-hand evidence.[^19] That decision, however, also noted that there is a difference between hearsay evidence that has circumstantial guarantees of trustworthiness and that which is inherently suspect. In the latter case, independent proof of the evidence is required.[^20] Moreover, the trial judge’s function as gatekeeper requires that the judge assess reliability at the initial stage of determining admissibility. If it meets the threshold test, then it is up to the jury to determine the weight to be given the evidence.[^21]
[39] The supporting material for the sub-sections of section F entitled ‘What occurs when a non-member wears the death head logo/tattoo’ and ‘The removal process of a death head tattoo/Hell’s Angel logo’ is primarily based on the untested interview of a police agent, David Atwell, a book written by a former motorcycle club member, Charles Zito, a police report from Sweden and a newspaper article from the Toronto Star.
[40] None of these sources have any circumstantial guarantees of trustworthiness. In the cases of David Atwell and Charles Zito, their information was not taken under oath or tested in court. Although, the Swedish case resulted in convictions, the court has been presented only with the police report and not the reasons for judgment in the case. There may be a significant difference between what was alleged in the police report and what the trial judge ultimately concluded had in fact occurred. The same can be said for the newspaper report.
[41] Therefore, Det. Empey will not be permitted to testify to anything in her report found in these sub-sections of Section F of her report. Additionally, Det. Empey will not be permitted to testify to anything that can only be sourced from the interview with David Atwell or Charles Zito’s book.
SUMMARY
[42] Det. Empey may be qualified as an expert to give evidence in relation to some portions of her report. Specifically, she can testify to sections A to E, section F with the exception of the sub-sections entitled ‘What occurs when a non-member wears the death head logo/tattoo’ and ‘The removal process of a death head tattoo/Hell’s Angel logo’, and section G.
[43] She cannot testify to sections H to M of her report, nor to the contents of her Supplementary Report.
The Honourable Madam Justice Julianne Parfett
Released: September 9, 2021
COURT FILE NO.: CR-18-R1903
DATE: 2021/09/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
CURTIS GRAVELLE
– and –
NICHOLAS WHILLMETT
– and –
DERRICK LATOURELLE
Defendants
decision
Parfett J.
Released: September 9, 2021
[^1]: Tattooed over or removed.
[^2]: Much of this material is drawn from the Crown’s factum. Defence counsel do not dispute the relevant legal principles as outlined by the Crown.
[^3]: 1994 80 (SCC), [1994] 2 S.C.R. 9.
[^4]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] S.C.J. No. 23.
[^5]: White Burgess, at para. 24.
[^6]: R. v. Abbey No. 1, at para. 87.
[^7]: R. v. Abbey No. 1 at paras. 90-95.
[^8]: White Burgess at para. 23.
[^9]: R. v. Oppong, [2021] O.J. No. 2810 (C.A.), at para. 45 [additional citations omitted].
[^10]: Mohan at para. 26 [additional citations omitted].
[^11]: R. v. Mills, 2019 ONCA 940, at paras. 52-53.
[^12]: For ease of reference outlaw motorcycle clubs will be referred to simply as motorcycle clubs.
[^13]: 2019 ONCA 940 at para. 52.
[^14]: [2009] O.J. No. 2974 (S.C.J.); appeal dismissed, 2013 ONCA 250, [2013] O.J. No. 1796 (C.A.).
[^15]: Sections B-C, E & G of Det. Empey’s report.
[^16]: [2008] O.J. No. 5693 at para. 17.
[^17]: [2021] O.J. No. 2810 at para. 48.
[^18]: Sections H – M and the Supplementary Report.
[^19]: Lavallee 1990 95 (SCC), [1990] 1 S.C.R. 852 at p. 893.
[^20]: Lavallee at p. 898-899.
[^21]: R. v. Abbey, 2017 ONCA 640, [2017] O.J. No. 4083 at para. 48.