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Court of Appeal For Ontario: Strathy C.J.O.
Court of Appeal For Ontario: Strathy C.J.O.
BETWEEN
Respondent
and
Appellant
Strathy C.J.O.:
Page: 2
A. OVERVIEW
[1] The appellant appeals his conviction for first-degree murder of Peter
Nguyen. On February 4, 2012, two men shot Mr. Nguyen as he left the Wildfire
gunmen then jumped into a black Mercedes SUV, which sped from the scene.
[2] The appellant was the owner of the Mercedes. Coincidentally, police had
been surveilling him as part of an investigation into drug trafficking. They had
followed the Mercedes to Yonge Street, where they saw it park near the
restaurant. They watched and waited. They became eye witnesses to Mr.
Nguyen’s assassination.
[3] The Crown alleged that the appellant was the driver of the Mercedes and
that he participated in the murder by locating the victim, alerting the killers to his
departure from the restaurant, and facilitating their escape by driving the getaway
car.
[4] The principal issue at trial was whether the appellant was the driver of the
Mercedes. The jury did not have reasonable doubt on that issue.
[5] Mr. Phan’s appeal rests on two grounds. First, he asserts that the trial judge
1421; second, he contends that the trial judge erred in admitting evidence of a
history of violence between two gangs that the appellant and the deceased were
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value.
[6] For reasons that follow, I find no error in the Garofoli ruling. I also find no
B. BACKGROUND
[7] I will begin by setting out some of the background facts. First, the facts
relating to the judicial authorization; second, the facts relating to the surveillance
of the appellant’s vehicle on the day of the shooting; and third, the appellant’s
alleged gang affiliation. I will add additional detail when considering each ground
of appeal.
[8] On January 14, 2014, as part of a large-scale drug investigation into the
to ss. 185 and 186 of the Criminal Code, R.S.C., 1985, c. C-46, and an
[9] This authorization was the subject of a Garofoli application at the appellant’s
trial. The appellant argued at trial that: (a) the authorization should be set aside
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because the affiant of the ITO deliberately deceived the authorizing justice; (b) he
should be permitted to cross-examine the affiant and sub-affiants; and (c) he was
entitled to disclosure of video evidence concerning a third party. The trial judge
affiant but dismissed the other requests. The trial judge’s ruling on these matters
[11] On January 22, 2014, police officers following the appellant observed him at
a “SpyTech” store on Yonge Street. They later determined that he had purchased
the appellant and a GPS service, seeking to purchase an upgraded tracking plan
to enable him to more closely monitor the movements of his target. His target
[12] On the evening of the killing, February 4, 2014, police had followed the
minutes before the shooting, they observed the driver of the Mercedes get out of
his vehicle, walk to Ms. Villareal’s BMW, which was parked nearby, kneel down
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and remove something from underneath. That “something” was later identified as
[13] The driver returned to the Mercedes and waited. Around 9:20 p.m., just as
lights of the Mercedes turn on. The Crown alleged that this was a signal from the
driver to the gunmen that it was time to act. As Mr. Nguyen and Ms. Villareal left
the restaurant and walked towards her BMW, two men approached them and
began shooting at Mr. Nguyen, who fell to the ground while the shooting
continued. Mr. Nguyen died of multiple gunshot wounds. Ms. Villareal was not hit.
[14] The gunmen fled on foot. After a short distance, they got into the Mercedes,
which stopped to pick them up and then sped from the scene. The gunmen were
[15] Two police officers who had been conducting surveillance while the
Mercedes was parked near the restaurant identified the appellant as the driver of
the Mercedes.
violent acts between two gangs: the “Chin Pac”, with which the appellant was
the appellant and other Chin Pac members, including his brother, Jerry Phan. It
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also chronicled a series of violent acts involving the gangs, including the shooting
and wounding of Jerry Phan on January 1, 2013 and May 11, 2013, as well as
his eventual fatal shooting on November 3, 2014, after the killing of Mr. Nguyen.
that the appellant had a motive to participate in Mr. Nguyen’s killing. The Crown
proposed to adduce the evidence through the testimony of police officers who
were aware of the gang associations and of the specific acts of violence. The trial
[18] The trial judge’s admission of this evidence is the basis for the second
ground of appeal.
C. ANALYSIS
(a) Background
[19] The appellant claims that the affiant of the ITO deceived the authorizing
justice and withheld information from him. He also argues that the trial judge
should have excluded the evidentiary fruits of the judicial authorization, including
all the evidence obtained by surveillance of the appellant, which would have
[20] The judicial authorization, as it related to the appellant, came about in the
following way. In December 2013, members of the Durham Regional Police Gun
2014, the police followed him to Cumberland Avenue in the Yorkville area of
Toronto. Officers observed Mr. Hussain getting out of his car carrying a back
pack and apparently talking on his phone as he paced up and down the street.
Mr. Hussain got into the passenger seat of a black Mercedes SUV, later
left the Mercedes and returned to his own car. Two officers conducting
surveillance asserted that when Mr. Hussain got out of the Mercedes, he was
[21] After Mr. Hussain left the area, police followed the appellant’s car to an
underground parking lot. They later discovered that the appellant lived in the
building and the Mercedes was parked in his spot. Later that day, police followed
that the affiant of the ITO, D.C. Nathan Campbell, deliberately misled the
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authorizing justice and colluded with sub-affiants, creating the impression that the
officers conducting the surveillance had actually seen the appellant engage in a
drug transaction with Mr. Hussain. In fact, they had only observed Mr. Hussain
appellant in the vehicle. While officers later observed the Mercedes parked in the
appellant’s spot at his apartment building, and still later observed the appellant
get out of his car after following it to other locations, the appellant says they
painted a misleading picture, if not outright lied, to make the case for
[23] D.C. Campbell based his statements in the ITO on two reports. One was a
surveillance report prepared by D.C. Hilborn, the central note-taker for the five-
member surveillance team on December 19, 2013. His report included the
statement that the appellant “did a bag exchange” with Mr. Hussain. The other
surveillance team. D.C. Capener stated in his report that he was conducting
surveillance on Mr. Hussain “when he met with an Asian male”, later identified as
the appellant.
…
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[25] The trial judge granted the appellant leave to cross-examine D.C. Campbell
on aspects of his affidavit, discussed below. The appellant claims that he erred in
[26] The appellant also sought disclosure of video surveillance of Mr. Hussain at
[27] The issue arose in the following way. D.C. Hilborn’s surveillance report for
December 19, 2014 described Mr. Hussain as leaving his own car with a “large
school bag (black)”, getting into the appellant’s car, and shortly thereafter
emerging with a “larger black bag”. D.C. Capener’s surveillance notes described
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the first bag as flat and empty, with zippers on the side, and the second bag as
[28] D.C. Campbell included a photograph in the ITO, showing Mr. Hussain
“bag exchange” at the appellant’s car on December 19, 2013, D.C. Campbell
said that “HUSSAIN has also been observed on a number of occasions, through
HUSSAIN uses this back pack as a means to transport items that relate to drug
trafficking”.
[29] After the meeting at the appellant’s car on December 19, 2013, the police
location, but D.C. Campbell testified on his cross-examination that he did not
review the video to determine whether Mr. Hussain was carrying a back pack or
the more elaborate bag with zippers on the top, described by D.C. Capener.
[30] During the Garofoli application, the appellant requested disclosure of video
recordings obtained by police from cameras at the Fort York Boulevard location,
which would have captured Mr. Hussain’s movements on December 19, 2013.
He argued then, as he does now, that if the video recordings showed the
appellant carrying a plain back pack, rather than the zippered bag described by
D.C. Capener, it would undermine D.C. Capener’s credibility with respect to the
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bag exchange. This request went hand-in-hand with the appellant’s request to
cross-examine the sub-affiants, D.C. Capener and D.C. Hilborn, concerning the
[31] The trial judge granted leave to cross-examine D.C. Campbell, the affiant of
the ITO, applying the test in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3
S.C.R. 343, at para. 10, and the decision of this court in R. v. Green, 2015 ONCA
579, 337 O.A.C. 72. He limited the scope of the cross-examination to the basis of
D.C. Campbell’s belief that the appellant was involved in a drug transaction with
Mr. Hussain on Cumberland Avenue on December 19, 2013, for the purpose of
cross-examine the sub-affiants, because the issues could be “fully and fairly”
[32] The trial judge refused the request for additional disclosure, including
McKenzie, 2016 ONSC 242, 26 C.R. (7th) 112, he observed, at para. 18, that
“[o]nce the disclosure request reaches beyond materials placed before the
relevance is attenuated.” He added that in a case such as this, where the ITO
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has numerous targets, “the disclosure issues on the Garofoli hearing should
focus on the information related specifically to the applicant and not the
[33] The trial judge found that the ITO disclosed reasonable and probable
grounds. In his written reasons, which were released after the cross-examination
World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207. The trial judge
framed the issue as whether the contents of the ITO “provide a basis upon which
the issuing justice, acting judicially, could find reasonable and probable grounds
to believe that an offence has been committed and that evidence of the offence
would be found at the specified place”. Even where there has been material non-
considered and the “primary focus on review is whether the authorizing judge
[34] The Crown conceded that the assertion that the appellant was actually seen
interacting with Mr. Hussain was inaccurate and had to be excised from the ITO
on review. The trial judge found D.C. Campbell’s cross-examination had exposed
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on important issues. But the issue remained whether the affiant reasonably and
honestly believed that a bag exchange had occurred between the appellant and
authorizing justice could have found that the appellant was involved in a drug
transaction. He pointed out that “[t]he standard for naming a party on a Part VI
[Criminal Code] application is far less than a balance of probabilities, let alone
beyond a reasonable doubt” and that the standard could be met through
circumstantial evidence.
[35] Ultimately, the trial judge admitted evidence derived from the tracking device
excised, there was sufficient evidence to conclude that the authorizing justice,
acting judicially, could find reasonable and probable grounds to believe that an
offence had been committed and that evidence of the offence would be found at
[36] Even with the statement excised, there was sufficient circumstantial
evidence to conclude that the appellant was in the vehicle when Mr. Hussain
entered with a bag and quickly left, and that they likely engaged in a drug
transaction. The trial judge reviewed the key circumstantial facts, at para. 37:
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[37] Based on this evidence, the trial judge decided that the authorization was
valid. However, the affiant should have said that he had concluded that the
appellant was present during the bag exchange, rather than that the surveillance
(i) Appellant
[38] The appellant submits the trial judge erred in four respects:
1. refusing to exercise his discretion to set aside the authorization because D.C.
Campbell, the affiant of the ITO, had deliberately deceived the authorizing
justice;
Hilborn and D.C. Capener, in order to enable the appellant to establish that
they had conspired with D.C. Campbell to mislead the authorizing justice;
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would have established that the sub-affiants’ description of Mr. Hussain’s bag
was false, thereby undermining the claim that a drug transaction had taken
4. concluding that the authorization could have been issued in the absence of a
[39] With respect to the first submission, the appellant characterizes D.C.
D.C. Campbell, probably in conspiracy with the sub-affiants, bolstered the case
set out in the ITO by making the evidence seem stronger than it actually was, by
Hussain. He submits the trial judge failed to properly assess the evidence in
[40] With respect to the second and third submissions, the appellant argues that
Fort York Boulevard could have undermined the affiant’s claim that there was a
“bag exchange”, leading to a conclusion that all the officers had engaged in a
demonstrated the existence of such a scheme if it showed that Mr. Hussain still
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had his back pack with him at Fort York Boulevard after the alleged “bag
exchange”.
[41] Finally, the appellant submits that the trial judge erred in concluding that the
submits, had the improper statements been excised, the authorizing justice
would have required that further inquiries be made to determine whether the
(ii) Respondent
[42] The respondent submits that the trial judge did, in fact, address the issue of
deliberate deception – he found that when D.C. Campbell swore the ITO, he
reasonably believed that the appellant was present at a drug transaction with Mr.
Hussain. This finding of fact was open to him. D.C. Campbell was entitled to rely
[43] As to cross-examination of the sub-affiants, the issue was the honesty and
reasonable belief of the affiant, not the ultimate truth of his statements overall:
World Bank, at para. 119. The appellant has failed to demonstrate that there was
[44] The respondent submits that the request for additional disclosure was
properly dismissed, as the appellant did not establish that there was a
(f) Analysis
[45] These grounds of appeal turn on well-settled principles of law set out in
decisions of the Supreme Court of Canada, notably Garofoli, Pires; Lising, and
World Bank.
[46] Before turning to each of these grounds, I make some general observations
preconditions for the exercise of such measures to have been met: World Bank,
grounds to believe that the measures would produce evidence concerning the
particular offence.
The record before the authorizing justice was, on its face, sufficient to meet the
statutory requirements, but the appellant asserted that the record did not
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accurately reflect what the affiant knew or ought to have known. If it had, he
submits, the authorization would not have issued: see World Bank, at paras. 120-
121.
inaccurate portions of the ITO must be excised, and the validity of the
authorization is determined by what remains. The accused may also argue that
“the augmented record placed before the reviewing judge demonstrates that the
affiant deliberately, or at least recklessly, misled the issuing judge, rendering the
2017 ONCA 23, 346 C.C.C. (3d), at para. 26, leave to appeal refused, [2017]
[50] Due to the ex parte nature of applications for search warrants, wiretaps, and
other investigative aids, the affiant of an ITO is required to make full and frank
disclosure of material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at
para. 46. The affiant must not deceive the reader by making unsupportable
ONCA 970, at para. 55. Furthermore, in Booth, at para. 56, this court clarified
that the affiant’s duty of candour requires disclosure of all material information
that:
focuses on the affiant’s reasonable belief, the Garofoli analysis does not
true. It determines whether the affiant had “a reasonable belief in the existence of
the requisite statutory grounds”: Pires; Lising, at para. 41. And this turns on what
the affiant knew or ought to have known at the time the affidavit in support of the
authorization was sworn. The parties agree that the applicable test is set out in
[52] Typically, evidence that the affiant knew or ought to have known was false,
whether it was lawfully issued. If there is additional evidence that the affiant knew
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or ought to have known was required for full and frank disclosure, it should be
[53] After excision and amplification is complete, the reviewing court should
authorizing justice, acting judicially, could find reasonable and probable grounds
to believe that an offence has been committed and that evidence of the offence
would be found at the specified place. The question is whether there is sufficient
Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at para. 45.
[54] It is, however, well-settled that even where sufficient reliable information
remains after excision and amplification, the reviewing judge has a “residual
discretion” to set aside an authorization “where the judge is satisfied that the
[55] That residual discretion must be exercised having regard to the totality of the
court described the test for the exercise of that discretion as follows:
[56] The standard to invoke that discretion is high. In Paryniuk, at para. 74, this
[57] The appellant submits that D.C. Campbell engaged in “deliberate deception”
of the authorizing justice and submits that the trial judge failed to come to grips
(ii) Did the Trial Judge Err in Failing to Find the Affiant Engaged in Deliberate
Deception?
[58] The trial judge plainly understood the appellant’s assertion that the affiant
reasons, the appellant’s submission that the statement in the ITO that the
appellant was observed engaging in a drug transaction with Mr. Hussain was not
only inaccurate, but “knowingly false and misleading” and that the authorizing
concluded that D.C. Campbell “honestly and reasonably believed that the
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[appellant] was at the bag exchange. While he “should not have deposed that
[the appellant] was observed in a bag exchange with Hussain … his conclusion
that he was there was nonetheless reasonable.” The affiant reached this
[60] These findings of fact, which were plainly available to the trial judge, are an
evidence before the reviewing judge to support the appellant’s assertion that
D.C. Campbell conspired with the sub-affiants to make the case stronger than it
appeared. D.C. Campbell testified that he made his statements in the ITO based
on the written reports of D.C Capener and D.C Hilborn. He was entitled to do so.
Those reports supported the inference the affiant drew from them that there had
been a drug exchange between the appellant and Mr. Hussain in the appellant’s
disclosure of all documents that were put before the authorizing justice and all
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McKenzie, at para. 15. If the material sought is not part of the investigative file,
application to set aside the authorization: McKenzie, at paras. 39, 53, referring to
[63] The videos of Mr. Hussain’s comings and goings at Fort York Boulevard
were unconnected with the appellant – they were not part of the investigative file
against him, nor did the affiant rely on them in the ITO. What they might or might
concerning the appellant, were matters of pure speculation. The appellant failed
to establish a reasonable likelihood that they would assist the court in the
determination of the application. The trial judge rightly refused to be led down an
While it might have been easy enough to require the Crown to produce the
evidence, that was not the point. Regardless of whether Mr. Hussain appeared at
Fort York Boulevard with a back pack, zippered bag, or no bag at all, the video
footage would not invalidate the affiant officer’s reasonable reliance on the
investigative reports of the sub-affiants, which indicated that Mr. Hussain entered
the Mercedes with one bag and emerged with another at Cumberland Avenue.
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The trial judge kept his focus – as World Bank demands – on the reasonable
belief of the affiant and not on the ultimate truth of every assertion in the affidavit.
[64] In my view, the trial judge did not err in refusing this request.
for granting leave was set out by Sopinka J. in Garofoli, at p. 1465, as follows:
[66] Sopinka J. added that the trial judge should limit the scope of cross-
examination to questions that seek to establish that there was no basis on which
[67] The focus on a motion for leave to cross-examine “is on the reasonableness
and honesty of the affiant’s belief about the existence of the requisite grounds,
and not on the ultimate accuracy of the information the affiant relies upon”: R. v.
Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 80. A proposed cross-
examination directed to show only that some of the information relied upon by the
affiant is false is unlikely to warrant leave unless it can also support an inference
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that the affiant knew or ought to have known it was false: Pires; Lising, at para.
41.
para. 14, Paciocco J., as he then was, indicated that an accused must
Sopinka J. stated, “The discretion of the trial judge should not be interfered with
on appeal except in cases in which it has not been judicially exercised.” Absent
unreasonable decision, an appellate court will defer to the trial judge: Victoria, at
[70] Here, the trial judge granted the appellant leave to cross-examine D.C.
limited the scope of the examination to key issues that went into the assessment
he permitted cross-examination related to: the basis for the officer’s belief that
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the appellant was present in the area of Cumberland Avenue in Toronto in the
early evening of December 19, 2013; the basis for his sworn belief that, at that
time and place, the appellant was involved in an illicit drug transaction with Mr.
[71] The appellant does not take issue with that determination. But he takes
issue with the trial judge’s conclusion that cross-examination of the sub-affiants
was not required because the issues could be fully and fairly explored through
[72] The appellant has not demonstrated that the trial judge made an error in
of D.C. Capener and D.C. Hilborn. Nor was the decision unreasonable. Even
assuming that the sub-affiants deliberately tailored their reports to make it appear
that there was a direct drug transaction with the appellant (and there is no
evidence of this), there is no factual basis to indicate that the affiant was aware
that they had done so, ignored signs, or was wilfully blind to indications of
impropriety.
[73] Having considered all the evidence, including the cross-examination of D.C.
Campbell, the trial judge concluded that the affiant “honestly and reasonably
believed that the [appellant] was at the bag exchange.” He acknowledged that
D.C. Campbell should not have deposed that the appellant was “observed” in a
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bag exchange with Mr. Hussain, but “his conclusion that he was there was
nonetheless reasonable.” As in the case of the disclosure request, the trial judge
focused on the affiant’s reasonable belief and not on the ultimate truth of his
[74] It follows, in my view, that the trial judge did not err in concluding that the
authorization could have issued with the offending portions of the ITO having
been excised. There was circumstantial evidence that Mr. Hussain was a “big
league drug dealer”, and direct evidence that he entered the appellant’s car on
Cumberland Avenue in a furtive manner while carrying a bag and, very shortly
thereafter, got out carrying either the same bag or a different bag. The trial judge
While there was no direct observation of the appellant in his car, it was driven
from Cumberland Avenue to his apartment building and was parked in his spot.
He was observed later in the day getting into and out of his car on more than one
occasion and nobody else was observed getting into and out of his car that day.
[75] As the trial judge noted, the standard for naming a party on an application
under Part VI of the Criminal Code is “far less than a balance of probabilities”. He
reasonably concluded that “the authorizing justice could reasonably have found
that it was Phan in his car on Cumberland Avenue when the drug dealer Hussain
[76] The trial judge did not err in his disposition of the Garofoli ruling. I would not
membership in the Chin Pac and of the history of violence between the Chin Pac
[78] Over the objection of the defence, the trial judge permitted Crown counsel to
file as an exhibit and read into evidence a 56-page document entitled “Facts Not
Contested”, consisting of five pages of narrative and eight appendices. This took
place at the conclusion of the Crown’s case and after the trial judge had given
the jury a mid-trial instruction, informing them of the permitted use of the
[79] The “Facts Not Contested” provided a basis for the following conclusions: (a)
the appellant, his brother, Jerry Phan, and his friend, Steven Livingstone, were
members of the Chin Pac gang; (b) the deceased, Peter Nguyen, was a member
the Asian Assassinz gang; and (c) there had been a long history of “back and
on July 10, 2010, a week later, Tien Pham (Asian Assassinz) was shot and
on August 11, 2011, the appellant’s brother, Jerry Phan (Chin Pac), was shot
on January 1, 2013, Jerry Phan and his girlfriend were shot in the parking lot
on February 24, 2013, Thuan “Tony” Nguyen (Chin Pac) was shot and killed
on March 30, 2013, Michael Nguyen (Asian Assassinz) was shot and killed at
the Yorkdale Shopping Centre. Michael Nguyen had stabbed Tony Nguyen in
2003. Thanh “Danny” Vo (Asian Assassinz) was also shot at the same
on May 11, 2013, the appellant’s brother, Jerry Phan, was shot again while
on December 26, 2013, Duy Ly Nguyen (Chin Pac) was shot 14 times outside
his family’s residence but survived. An hour and 20 minutes later, Jamie Dang
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on February 9, 2013, Hung Pham (Asian Assassinz) was shot and killed. (This
on November 3, 2014, the appellant’s brother, Jerry Phan, was shot and killed
while sitting in his car in the parking lot of a restaurant in Richmond Hill.
[80] The “Facts Not Contested” also included photographs of members of each
gang found by police in the possession of rival gang members, indicating that
members of the two gangs had been targeting each other for violence.
(b) The Trial Judge’s Reasons (R. v. Phan, 2017 ONSC 1061)
[81] The trial judge observed that the evidentiary record adduced by the Crown
provided a reasonable basis to conclude that the appellant and the deceased
were members of the rival gangs, and that “the violent history between the
groups or gangs provided a motive for the [appellant] to participate in the murder
If this evidence were not left with the jury they would be
left to consider an apparently senseless shooting that
involved unknown shooters and an alleged party who
had no apparent motive. The absence of a proven
motive would tend to support the denials by the
respondent in his post-arrest statement. If they receive
this evidence they may or may not find it is evidence of
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[82] The trial judge gave the jury a mid-trial instruction before admitting the
evidence, as well as a final instruction explaining the limited purpose for which
[83] The appellant does not challenge the trial judge’s jury instructions. He simply
says that instructions were incapable of mitigating the prejudice caused by the
litany of inter-gang violence put before the jury, none of which was proven to
[84] Before the evidence was introduced, the trial judge told the jury that the
Crown would tender evidence that the appellant and the victim were associated
with “separate groups”, and that there had been a history of violence between the
two groups. The Crown would contend that “this evidence relates to a potential
motive for this homicide.” He would give the jury further instructions, but he
explained that they could not consider the evidence “in any way as showing that
Thanh Phan is a violent or bad person or that he is the type of person who would
commit the crime he is alleged to have done”. Nor could they use the evidence to
find that the appellant was involved in or responsible for any of the violent acts
[85] The trial judge repeated and expanded upon these cautions in his final
instructions. He explained the Crown’s assertion that the motive for the crime and
for the appellant’s involvement was based on the violent history between the rival
appellant and Mr. Nguyen were associated with the rival gangs, but this did not
require proof beyond a reasonable doubt. Motive was not an essential element of
the crime, but if they found that the appellant had a motive, it might assist them in
deciding whether the Crown had proven its case beyond a reasonable doubt. He
explained, once again, the limited use they could make of the evidence and its
impermissible uses.
(i) Appellant
[86] The appellant acknowledges that some of the gang evidence was probative
of motive and animus. He submits, however, that most of the evidence had no
probative value because it was “remote” and unconnected to motive and thus
violence perpetrated by the Asian Assassinz against the Chin Pac, but it did not
establish that the appellant was aware of this violence or that it resulted in
reprisals by the Chin Pac. The trial judge failed to give sufficient consideration to
the highly prejudicial impact of much of the evidence, particularly the evidence of
a killing that occurred after the shooting of Mr. Nguyen, which had no probative
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[87] By analogy to the principles applicable to similar fact evidence, the appellant
S.C.R. 339 and R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 31. In
this case, the Crown called no evidence to establish the identity of the
perpetrators of the acts of violence which allegedly formed part of the “narrative”
2017 ONCA 650, 137 O.R. (3d), the appellant submits that much of the gang
(ii) Respondent
[88] The respondent submits that the jury was not required to consider the killing
of Mr. Nguyen in a vacuum – they were entitled to know the history of violent
retribution between the appellant’s and the deceased’s gangs. They were also
entitled to consider these actions, including violent actions against the appellant’s
brother and his friend, in assessing whether the appellant had a motive to
[89] The respondent further submits that the trial judge understood the prejudicial
effect of the evidence of gang violence, but it was mitigated by the manner in
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which the evidence was admitted – a documentary record – rather than viva voce
evidence of police officers who had investigated the various crimes that formed
part of the narrative. In addition, the trial judge provided effective cautionary
infer that the appellant was involved in the other alleged wrongdoings of the Chin
Pac or that he was the type of person who would commit the charged offence.
(e) Analysis
inadmissible unless the Crown can demonstrate that: (a) it is relevant to an issue
in the case; and (b) the probative value outweighs its prejudicial effects: R. v. B.,
only to show that an accused is the type of person likely to have committed the
relevant for a variety of purposes. Like all bad character evidence, it may be
intention, among other purposes. The case law is replete with the admission of
2) Evidence of Narrative
purpose, to help the jury understand the events as they unfolded. Narrative
evidence is “evidence that tells the story of a crime in a manner that makes it
possible for the jury to properly carry out its fact-finding function”: R. v. Riley
(2009), 246 C.C.C. (3d) 552 (Ont. S.C.J.), at para. 60. The principle underlying
R. v. Skeete, 2012 ONSC 737, at para. 15, aff’d 2017 ONCA 926, 357 C.C.C.
it remains the fact that a “criminal trial is, after all, about
the search for truth”. 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. [Emphasis added.]
senseless. For example, in Riley (SCJ), at para. 38, which was cited by the trial
judge, Dambrot J. admitted narrative of an ongoing gang war for the following
reasons:
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[95] Motive and animus are related concepts. Animus refers to hostility toward a
person or group. Animus may form part of a motive, which is what induces a
person to act: R. v. Darnley, 2020 ONCA 179, at para. 46. This type of evidence
acts and there are limitations to the extent to which such acts may be introduced:
Lewis v. The Queen, [1979] 2 S.C.R. 821; R. v. Sheriffe, 2015 ONCA 880, 333
C.C.C. (3d) 330, at para. 81, leave to appeal refused, [2016] S.C.C.A. No. 299.
[96] As this court observed in R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 37, at
accused is a member of a group. If they find that to be the case, they may
2011 BCSC 640, at para. 53, Smart J. explained the concept of group motive:
[98] In addition, it is open to the Crown “to adduce evidence that shows or tends
to show the intensity and permanence of a motive since this may enhance the
probability that the person with the motive acted in accordance with it”: Salah, at
para. 66.
[99] Evidence of the accused’s gang affiliations has been admitted to show
animus and motive in many cases: see Riley (ONCA); R. v. Sarrazin, 2010
ONCA 577, 259 C.C.C. (3d) 293, aff’d 2011 SCC 54, [2011] 3 S.C.R. 505; R. v
(ii) Application
[100] As I have noted, the appellant does not dispute that some evidence of
gang affiliation and some evidence of prior gang violence may have been
prejudicial effect of the evidence outweighs the probative value. Therefore, the
trial judge erred by putting highly prejudicial evidence before the jury and inviting
the jury to find the appellant guilty by virtue of his gang membership.
1. the evidence was too remote and did not connect him to the violent acts
(the gang the deceased was associated with) against the Chin Pac (the gang
3. violence that took place after the charged offence was not relevant;
4. the evidence does not satisfy the legal standard set out by the Supreme Court
5. given the above, the prejudicial effect outweighed the probative value.
[103] I will address the first two submissions together. I do not accept the
submission that the evidence was too remote because the police did not identify
one-way violence by the Asian Assassinz against Chin Pac. Although the police
had not identified suspects in these events, there was strong circumstantial
evidence that painted a picture of an ongoing war between the Asian Assassinz
[104] The gang violence evidence provided narrative and context. It was open to
the jury to conclude that the appellant was a member of Chin Pac, whose
members included his brother, Jerry Phan, and his friend, Steven Livingstone.
Based on the evidence, the jury could also find that the Chin Pac had a long
history of back and forth violent conflict with the Asian Assassinz. This evidence
“tells the story” of the crime and provides necessary context. As in Riley (SCJ),
the absence of this background would leave the jury to “decide this case on the
basis of some artificially crafted, antiseptic version of the case” and to “puzzle
do it.”
[105] It was also open to the jury to conclude that the acts of violence
perpetrated by the Asian Assassinz against Chin Pac members provided both
group motive and personal motive for revenge and retribution: see Sipes, at para.
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53. Notably, there were several attempts to kill the appellant’s brother, Jerry
Phan, including one incident in the presence of the appellant on May 11, 2013.
The frequency and nature of these acts of violence could help establish the
“back and forth” violence involving the two gangs, whether as victims or
perpetrators, provided important context for the shooting of Mr. Nguyen, as well
as evidence of animus between the two gangs. That animus, in turn, could have
para. 169, “Retaliation for a perceived wrong may provide a motive for a crime.”
Overall, this evidence helps explain why the appellant might assist in the killing of
Mr. Nguyen.
(ONCA) that the gang violence evidence is unrelated and inadmissible. In Riley
(ONCA), this court held that the evidence was inadmissible because it was
counts” (emphasis added): at para. 212. The present case differs. The gang
[107] I do not accept the appellant’s submission that events after the killing of
member, several days after the shooting of Mr. Nguyen, could not have been
relevant to the appellant’s culpability in the latter’s death. Coming, as they did, on
the heels of Mr. Nguyen’s assassination, these events were compelling evidence
of the permanence and intensity of the animosity between the gangs. These
incidents made it more likely that the animus was present when Mr. Nguyen was
[108] As this court observed in Riley (ONCA), at para. 160, “as a practical
matter, … a trial judge may properly take into account the temporal connection
assessing its probative value.” Even if events take place after the charged
offence, the test “remains whether the evidence’s probative value exceeds its
‘exceptional’ probative value”. In the present case, the trial judge made no error
evidence.
Page: 42
similar fact evidence cases, such as Perrier and Arp. Those principles would
used to identify the group responsible for another; and (2) whether the evidence
has sufficient probative value in relation to the particular accused to outweigh its
prejudicial effect. The appellant submits that the gang violence evidence is
inadmissible because the police did not identify who committed the violent acts in
identify whether a particular gang or any gang was responsible for the acts of
violence. Therefore, there was no “link” between the appellant and the acts of
[110] Perrier and Arp were concerned with similar fact evidence led for the
purpose of identity. The Supreme Court clearly indicated that the test in Perrier
applies to situations where “you have several crimes committed with a unique
31. In those cases, “the trier of fact should be permitted to draw an inference that
the same gang committed the acts”: Perrier, at para. 31. But in the present case,
the purpose of the evidence is to provide narrative, motive, and animus – it is not
[111] Other courts have rejected the application of Perrier to gang history
evidence adduced for purposes other than identity. In Riley (SCJ), the accused
made a similar submission, arguing that Perrier placed limits on the admissibility
that Perrier is a “classic” similar fact evidence case where the evidence is used to
establish identity, but it does not apply when the purpose is narrative:
[112] For similar reasons, in Haevischer, at para. 88, Wedge J. rejected the
application of Perrier to gang activity adduced for purposes other than identity.
Wedge. J. explained that Perrier is a similar fact case that sets restraints on
evidence related to a gang’s unique methods, it does not apply generally to all
[113] Even outside the gang context, this court has explained that “motive
evidence does not fit neatly within the normal similar fact evidence ‘test’”
because “its probative value does not arise from any similarity”: R. v. Johnson,
[114] In conclusion, the test from similar fact evidence cases like Perrier and Arp
does not apply. The Crown did not advance a “classic” similar fact case where
the allegation against the accused bears a striking similarity to prior acts, such as
a unique gang trademark. When discreditable conduct evidence is led for the
purpose of narrative, motive, and animus, the typical process for weighing
probative value and prejudicial effect applies. There is no need for the “additional
step” described in Perrier of looking for similarities to infer that the same gang
[115] Overall, the trial judge did not err in balancing the probative value and
prejudicial effect of the gang violence evidence. The trial judge plainly
motive, but was equally aware of the potential prejudicial effect. He was at pains
to contain the scope of the evidence to limit its effect and to ensure that there
violence, so as to mitigate the risk of moral prejudice. As the trial judge noted in
his admissibility ruling at para. 9, “The Crown stipulated that if the evidence was
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personally involved in any of the acts of violence.” He instructed the jury to this
effect.
introduced through an expert. In this case, the Crown did not propose to call an
expert, but was prepared to call police witnesses to testify about the history of
violence involving members of the Chin Pac and the Asian Assassinz. In the
course of the application to adduce this evidence, the trial judge suggested that
concessions by the defence could alleviate the need to call some of the viva voce
evidence the Crown sought to adduce. The trial judge asked the Crown to
consider drafting admissions with respect to the “bottom line” evidence it wanted
to adduce on this issue. Ultimately, the trial judge carefully curated the evidence
trial, this means of putting the evidence before the jury removed some of the
“punch” or impact of the evidence and minimized the risk of reasoning prejudice,
which is the risk of distraction and confusion from the main issues at trial. While
the risk of moral prejudice remained, it was mitigated by the jury instructions.
[117] The trial judge’s weighing of probative value and prejudicial effect is
[118] No such error has been identified and I would not give effect to this ground