CITATION: R. v. Boswell, 2011 ONCA 283 |
DATE: 20110411 |
DOCKET: C45422 |
COURT OF APPEAL FOR ONTARIO |
Cronk, Lang and Watt JJ.A. |
BETWEEN |
Her Majesty the Queen |
Respondent |
and |
Leon Boswell |
Appellant |
Emily Morton, for the appellant |
Susan Magotiaux and Joanne Stuart, for the respondent |
Heard: April 1, 2011 |
On appeal from the conviction entered by Justice J. D. McCombs of the Superior Court of Justice, dated January 17, 2003, and the sentence imposed by Justice McCombs, dated February 17, 2003. |
[1] After a trial by judge and jury, the appellant was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 20 years. He appeals his conviction.
[2] There is one issue on this appeal. The appellant argues that the trial judge erred by admitting opinion evidence from a police expert regarding the existence of a “code of silence” in the community where the killing occurred. If accepted by the jury, this evidence could potentially explain why the main eyewitness to the murder initially lied to the police about whether he witnessed the murder and could identify the perpetrator.
[3] Identity was the central issue at trial. The Crown’s sole witness on this issue was Shaun Sharp, a young man who lived in the Rexdale community in Toronto where the killing took place. Sharp testified at trial that the appellant shot the victim, Wayne Reid, after a verbal altercation between Reid, on the one hand, and the appellant and his associate, Jermaine Grant, on the other hand. Sharp was a friend of the victim, and knew both the appellant and Grant. He testified that he was the only witness to the shooting, other than the appellant, Reid and Grant.
[4] Sharp identified the appellant as the shooter in both a KGB statement[1] to the police and in a police photo line-up approximately 48 hours after the shooting. However, on three separate occasions shortly after the killing and before he identified the appellant as the shooter, Sharp falsely claimed to the authorities that he did not witness the shooting and that he did not know the identity of the victim’s assailant.
[5] It was the Crown’s position that the shooting took place in a community affected by an ongoing war between competing gangs, in which violent and armed confrontations frequently occurred, including between members of the same gang. As a result, the Crown moved before trial for a ruling from the trial judge permitting it to lead expert evidence from several police officers on various subjects relating to gang wars and gang culture.
[6] One of the subjects on which the Crown sought to lead opinion evidence concerned the cultural values in play in “high crime, high density” communities in Toronto, like the Rexdale neighbourhood where the murder occurred, that allegedly led to a pervasive “code of silence” among gang members and others in the affected communities. Specifically, as described in the appellant’s factum, the Crown sought to tender evidence from Detective Sergeant Comeau, a police expert on gangs, to the effect that:
[T]here was a “code of silence” that prevailed in these communities, and in particular the Rexdale communities at issue in this trial, such that residents who witnessed homicides would not provide information to police at all, either as a result of distrust of police or, more significantly, because of fear of violent retaliation.
[7] It is undisputed that the Crown sought to elicit this evidence in order to provide context for Sharp’s failure to identify the shooter until 48 hours after the killing and to corroborate his claim that he did not initially identify the appellant as the shooter, in part, because he feared for his life if members of his community learned that he had co-operated with the police.
[8] The Crown maintained that, without the proffered expert evidence on this alleged code of silence, including the fear of gang retribution for co-operating with the police, the jury would be unable to fairly assess Sharp’s initial lies to the police, his delayed identification of the perpetrator, and his alleged fear of being killed if he co-operated with the police. The Crown argued that the code of silence evidence would inform the narrative of events surrounding the shooting, ensuring that the narrative would not appear illogical, and aid the jury in assessing Sharp’s credibility.
[9] The defence resisted the admission of the evidence on several grounds. It argued, among other things, that: (1) the police expert would express an opinion on Sharp’s credibility, as opposed to the general existence of a code of silence; (2) the evidence was unnecessary, as the existence of a code of silence in gang-dominated communities was “notorious” and Sharp and other fact witnesses could testify as to its existence in this case; and (3) as police officers, the experts proffered by the Crown were not objective.
[10] The Crown’s motion to lead expert evidence was heard over the course of a lengthy voir dire, during which the trial judge questioned counsel in detail and received submissions on the issues of relevance, necessity, prejudice and expertise. Eventually, the trial judge denied the Crown’s motion with two exceptions, one of which related to the proposed code of silence evidence. In that regard, the trial judge expressed the view that the proffered evidence was highly probative because, “[T]he average person might well be ignorant of the fact that in certain high crime, high density, urban areas, a code of silence exists based on fear of retaliation that is much more powerful than the average person would appreciate.” I will return to some of the specific details of the trial judge’s ruling later in these reasons.
[11] The appellant attacks the trial judge’s admission of the code of silence opinion evidence on several bases. He argues that: (1) it lacked any relevance to the factual issues to be determined by the jury; (2) it was unnecessary; and (3) it seriously prejudiced the appellant. The appellant further submits that, although the trial judge attempted to constrain any impermissible use of the code of silence evidence by the jury, this evidence nevertheless served only to “oath help”, or gratuitously bolster, Sharp’s credibility. As the evidence was therefore largely irrelevant, unnecessary and highly prejudicial, it had the irreparable effect of undermining trial fairness.
[12] As I have said, the only issue on this appeal is whether the trial judge erred by admitting the challenged code of silence evidence.
[13] The test for the admission of expert evidence is well-established and undisputed on this appeal. At the first stage of the admissibility inquiry, the party seeking to tender expert evidence must establish on a balance of probabilities that the proffered evidence is: (1) relevant; (2) necessary; (3) not subject to any applicable exclusionary rule; and (4) to be advanced through the testimony of a properly qualified expert. Where these four preconditions to admissibility are satisfied, the second stage of the admissibility inquiry obliges the trial judge to engage in a contextual weighing of the probative value and significance of the proffered evidence to the case against the potential prejudice that could flow from its admission. See R. v. Abbey (2009), 97 O.R. (3d) (C.A.), leave to appeal refused (2010), 409 N.R. 397 (note); R. v. Mohan, [1994] 2 S.C.R. 9.
[14] For the following reasons, I am satisfied that the preconditions for the admission of the code of silence evidence were met in this case and that the trial judge did not err in his admissibility analysis.
[15] The appellant does not suggest on appeal that the code of silence evidence was subject to any exclusionary rule that would preclude its admission. Nor does he contend that Detective Sergeant Comeau, the Crown’s proffered expert witness on this issue, lacked the necessary qualifications to provide the evidence in question. For the purpose of this appeal, therefore, only the relevance and necessity preconditions to the admissibility of the code of silence evidence are in issue.
[16] The appellant challenges the relevance of the code of silence evidence on two main grounds. He argues that Sharp gave multiple reasons in his trial testimony for his initial decision to lie to the authorities, only one of which implicated a general code of silence in the community where the killing occurred. In fact, the appellant maintains, on his own version of events, Sharp’s mistrust of the police and his fear of retaliatory consequences if he identified the shooter were not the main reasons prompting his initial lies to the police.
[17] The appellant next submits that Sharp’s decision to co-operate with the police within 48 hours of the killing demonstrates that any code of silence that did exist was ineffective with respect to Sharp. It follows that the proposed rationale for the admission of this evidence did not arise on the facts of this case.
[18] I would not give effect to these arguments for several reasons.
[19] First, Sharp did provide several reasons for his initial lies to the police and his failure to immediately identify the shooter, one of which involved his hope that Reid would survive and that, together, they could exact private revenge for the shooting. However, he also testified about his distrust of the police, his community’s distrust of the police and the justice system, and his own fear of physical harm if it was discovered that he had identified the shooter.
[20] During his examination-in-chief at trial, Sharp was questioned as to why he initially lied to the police about whether he saw the shooting and knew the identity of the shooter. He stated that he lied to the police “the first two times” because he expected Reid “to come out of it and then we would go after revenge” and, further, that he lied “[t]he third time… just to stick with the story”. However, almost immediately thereafter, he elaborated: “We don’t talk to the police. We don’t tell police what happened. We just take care of our own justice.” He went on to agree that it was a widely held view in his community, which he shared, that the police could not be trusted “to do things right”.
[21] Sharp repeated his claim that members of his community “just don’t talk” to the police several times throughout his evidence. He also testified that he was concerned about talking to the police because of what would happen to him “when people found out that I was the one who talked”, including the possibility that someone would come to his house and kill him. When pressed on this issue during cross-examination, Sharp testified that when the victim’s mother urged him to tell the truth to the police after the shooting, “the only concern I had was for the fact that I might get killed for talking” and that he was worried about “the code of not talking” and getting killed. Finally, Sharp also testified that he no longer lived in his former Rexdale community and would not return there, even to visit friends, since he thought that he would be shot and killed if he did so as a result of co-operating with the police in this case.
[22] Based on this evidence, I do not agree with the appellant’s contention that Sharp’s claimed distrust of the police and his fear of retaliation did not figure prominently in his explanation for his initial lies to the police. On the contrary, Sharp clearly identified these factors as influencing his conduct in the first 48 hours after the shooting. It was for the jury, as the trier of fact, to determine what weight, if any, to assign to these considerations in assessing Sharp’s credibility.
[23] Nor do I agree that the code of silence in Sharp’s community as described both by Comeau and Sharp in their testimony did not arise on the facts of this case. On Sharp’s own evidence, outlined above, this code of silence was clearly implicated. The fact that Sharp ultimately decided to identify the shooter for the police does not mean that a code of silence did not operate to prevent him from doing so immediately after the shooting.
[24] Finally, the threshold for establishing relevance for the admission of expert evidence is not particularly onerous. As this court indicated in Abbey at para. 83, “To be relevant, the evidence must not only be logically relevant but must be sufficiently probative to justify admission.”
[25] Comeau’s testimony bore on the general issue whether a code of silence existed in the Rexdale community where Reid was murdered. Comeau did not comment on the truthfulness of any particular witness, including Sharp. Nor did he comment on whether Sharp or any other witness was actually affected or lived by a code of silence in relation to the police. Rather, based on his prior policing experience in the Rexdale community at issue, he testified about the general existence of a code of silence in the affected community, the nature of that code, and whether it rendered the failure to provide information to the police unusual. In these circumstances, the jury was properly left to draw its own conclusions about why Sharp lied to the police.
[26] In my opinion, this evidence, if accepted by the jury, provided context for the jury to understand the cultural mores at play in the affected Rexdale community that may have caused a community member like Sharp to lie to the police. This is not the same thing as evidence indicating that a code of silence, or other cultural community value, in fact operated to cause a witness to lie to the police.
[27] The trial judge’s evaluation of the relevance of the code of silence evidence was considered and thorough. It attracts significant deference from this court. I see no basis on which to interfere with his ruling on this issue.
[28] I reach a similar conclusion concerning the necessity of the code of silence evidence. In my opinion, on the facts of this case, it was open to the trial judge to conclude that the jury needed to hear this evidence in order to be made aware of the existence and nature of a code of silence in Rexdale at the time of the murder.
[29] 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. The determination of what matters fall within the normal experience of jurors is squarely within the trial judge’s domain: see R. v. D.S.F. (1999), 43 O.R. (3d) 609 (C.A.).
[30] The appellant argues, in effect, that while the code of silence evidence may have been necessary in this case, it was not necessary that it be adduced through an expert police witness. He submits that evidence of the code of silence was available from Sharp and, to a lesser extent, from some of the alibi witnesses called by the appellant.
[31] I have already outlined the nature of Sharp’s evidence regarding the code of silence. While Sharp testified about this code and its effect on his conduct, his credibility was very much in issue and was vigorously attacked by the defence. Indeed, as a result of significant concerns about Sharp’s credibility and reliability, the trial judge provided a strong Vetrovec warning to the jury in relation to his testimony: see Vetrovec v. The Queen, [1982] 1 S.C.R. 811. In these circumstances, it cannot be said that expert evidence regarding the general existence of a code of silence and its nature was unnecessary because the evidence was otherwise available through Sharp.
[32] Nor does the evidence of the defence alibi witnesses render Comeau’s testimony unnecessary. Those witnesses provided some evidence about the reasons why a community code of non-co-operation with the police could account for the failure of additional community members to provide alibi evidence for the benefit of the appellant. However, their testimony did not concern the possible operation of a community code of silence as a causal factor in the provision of false information to the police.
[33] The trial judge, an experienced criminal law jurist, was best-positioned to assess the necessity for the admission of the code of silence evidence. His assessment of that issue also attracts considerable appellate deference.
[34] As a final point, the Crown underscores that the defence position at trial, emphatically outlined for the jury, was that Sharp was a liar who lived in a “dream world” detached from reality. The nature of this theory provided additional support for the trial judge’s conclusion that it was necessary, in order that the jury not be misled, that it hear from Comeau about the common experience and prevalence in the community of a code of silence.
[35] The transcript from the voir dire reveals that the trial judge was acutely aware of the need to ensure that the jury was not misled by the evidence led at trial and, as well, that any prejudice to the appellant be prevented. As a result of frequent exchanges with counsel during the voir dire, the Crown eventually acknowledged that the required code of silence evidence could be introduced at trial without any reference to gangs. Without resiling from his primary position that the code of silence evidence was inadmissible, defence counsel at trial (not counsel on appeal) suggested that, “[I]t might be possible to address these issues in a compromise form if the word ‘gang’ is not uttered”, since this approach would minimize prejudice.
[36] In his exchanges with counsel, the trial judge expressed this tentative view:
The truth is he [Sharp] is a liar, he told two different versions, but the question is why did he lie. He’s going to have to say, “Yes, I lied”. The question is why. The question is, is the Crown entitled to call evidence that would lend credence to his explanation as to why he lied? That, it seems to me, has important and powerful probative value that might well be capable of outweighing even the highly prejudicial evidence that your client is a member of a gang. That’s where my problem is. So if we can leave the “G” word out of this and not preclude the Crown from having the jury understand these things, then it strikes me as an exquisite balance between competing interests and ensuring fairness to both sides. That’s my present view. [Emphasis added.]
[37] Thereafter, the trial judge continued to hear submissions before ruling that the code of silence evidence would be admitted, under certain strict safeguards. The importance of these safeguards, both to an understanding of the trial judge’s ruling and to the prevention of any risk at trial that the jury might misuse the code of silence evidence, cannot be overstated. These safeguards included the following.
[38] First, the trial judge prohibited any reference, by anyone at trial, to “gangs”.
[39] Second, counsel negotiated, and the trial judge approved, the language and content of the evidence to be given by Comeau. The effect of this was to narrowly confine the scope of Comeau’s testimony. As vetted by the trial judge, the approved script eventually read as follows:
There is a code of silence in high crime, high density neighbourhoods that exists in part because of distrust of police and in part because of fear of violent retaliation if the witness gives information to the police. In these specific Rexdale communities during the relevant time period, the code of silence that existed far exceeded that which the police normally encounter in investigating murders in high crime urban areas. This code of silence was a result of the fact that people living in this community were terrified to identify anyone who they knew or believed to have committed a violent offence.
Project Alliance operated in the area for nine months and failed to turn up a single witness willing to testify. The reason for this extreme fear was the expectation that anyone that did rat (i.e. provide information to the police) could expect to face very violent consequences potentially, including death. It was not at all unusual for witnesses to murder in this area to lie to the police claiming to know nothing because of the extreme fear of retaliation. It would be reasonable for a person living in this community and having witnessed a homicide to fear for his life if he were to provide information to the police.
[40] The trial judge also made it clear that Comeau would not be permitted to opine on the truthfulness of Sharp or that of other witnesses and that, if Comeau strayed in his testimony from the approved parameters of his evidence, the trial judge would unhesitatingly excuse the jury. Sharp was also directed to avoid any references to “gangs” in his testimony. The transcript reveals that when Comeau was asked questions by defence counsel, where the answers might require him to tread into impermissible areas, he steadfastly declined to answer the questions posed, indicating that he could not comment on the application of the code of silence to any particular individual. In several of these instances, the trial judge promptly excused the jury to review and rule on the propriety of the questioning.
[41] Third, the trial judge also addressed the manner in which Comeau could offer his opinion evidence. Comeau was directed to give his testimony in a non-emotive fashion, to use language in the past tense to avoid any suggestion of recent violence, and to refrain from mentioning race.
[42] Fourth, and importantly, at the conclusion of Comeau’s evidence, the trial judge provided the jury with a clear mid-trial instruction on the use of expert evidence, including Comeau’s evidence. In so doing, he cautioned the jury, in blunt and unambiguous terms, that it was the supreme arbiter of the facts, that expert evidence could not replace the jury’s own assessment of the evidence and that expert testimony was no more important than any other evidence.
[43] Fifth, the trial judge gave an equally clear and more detailed instruction in his charge to the jury on the permissible use of expert evidence. In that instruction, he repeatedly emphasized that it was for the jury to decide whether to accept any witness’ testimony, in whole or in part, that the jury was the sole judge of the facts, and that there were “very important limitations on the use that [the jury] can make” of Comeau’s evidence. On at least five occasions, the trial judge told the jury that Comeau’s evidence on the code of silence was admitted for a limited purpose. He described that purpose as being “to help [the jurors] to understand things that [they] may not have known from [their] experience”, namely, “cultural values” in the affected communities that, if the code of silence evidence was accepted by the jury, might be taken into account in assessing Sharp’s testimony as to why he initially lied to the police regarding the murder. In providing this caution, the trial judge twice told the jury that Comeau’s evidence could not be used “to bolster or prop up” Sharp’s evidence, as this would constitute impermissible “oath helping” and, further, that Comeau’s testimony could not be used as a basis on which to conclude that Sharp had eventually told the truth, both to the police and to the jury.
[44] The trial judge went even further. In his charge, he reminded the jury that Comeau had acknowledged that “people lie to the police for a variety of reasons”, unrelated to the code of silence. He also invited the jury to consider whether Sharp had lied to the police for reasons other than fear of reprisal, for example, out of a desire to deflect blame away from himself. He concluded his instruction concerning Comeau’s testimony by stating that Comeau was “not an expert on determining the truth” and again told the jury that it would be wrong for it to be influenced by any opinion that it thought Comeau may have had about Sharp’s courage or believability.
[45] The trial judge went to extraordinary lengths to safeguard against the impermissible use of Comeau’s testimony by the jury and to thereby prevent prejudice to the appellant arising from this evidence. Having implemented these protective measures, the trial judge enforced them, ensuring that Comeau did not transgress the previously approved parameters of his testimony – even when invited to do so by the defence – and that the jury understood the narrow and limited permissible use of his evidence. Short of refusing to admit the code of silence evidence entirely, evidence which I regard as having been both relevant and necessary at this trial, it is difficult to conceive that the trial judge could have done more.
[46] Finally, for many of the reasons already given, it is my opinion that the trial judge’s balancing of the benefit or value of admitting Comeau’s evidence against the prejudice or cost to be occasioned by its admission was unimpeachable. The trial judge identified the limited purpose of the code of silence evidence, repeatedly cautioned the jury about that limited purpose and the impermissible use of the evidence, and guarded against its misuse throughout. I have no hesitation in concluding that he removed any realistic risk that the jury would engage in impermissible reasoning in relation to the code of silence evidence.
[47] I therefore agree with the Crown’s submission, set out in its factum:
In sum, the minimal cost of admission was manageable. Through the extraordinary measure of removing the word “gang” from the entire trial, the trial judge sufficiently sanitized the evidence to prevent any risk of the jury engaging in unfair propensity reasoning. He also used every preventative measure available to him to limit or prevent any other potential prejudice resulting from the admission of the opinion evidence. He limited the scope of the proffered opinion, he set out specific wording to prevent a witness from running afoul of his ruling, he cautioned witnesses on limits prior to testimony, and delivered mid-trial and final instructions delineating both the appropriate and impermissible uses of the evidence. In the end, he attained the “exquisite balance” he sought.
[48] Accordingly, for the reasons given, I would dismiss the appeal.
RELEASED:
“APR 11 2011” “E.A. Cronk J.A.”
“EAC” “I agree S.E. Lang J.A.”
“I agree David Watt J.A.”
[1] R. v. B. (K.G.), [1993] 1 S.C.R. 740.