R. v Giles

2016 BCSC 294 R. v. Giles

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Giles, 2016 BCSC 294 Date: 20160223 Docket: 26181 Registry: Vancouver Regina v. David Giles, Kevin Van Kalkeren, James Howard, Michael Read, Bryan Oldham, Orhan Saydam, Murray Trekofski and Shawn Womacks Restriction on Publication: Pursuant to ss. 486.5(1) and 486.5(9) of the Criminal Code there shall be no publication, broadcast or transmission in any way of any information that could identify any undercover police officers including any pseudonyms used by the undercover police officers involved in the investigation of the Accused. This publication ban applies until further order of the Court. This Ruling complies with this publication ban. Before: The Honourable Madam Justice Ross Ruling on the Mohan Voir Dire Counsel for the Crown: C.W. Greenwood S.F. Paulson Counsel for the Accused David Giles: H.P. Gill The Accused James Howard: In Person Counsel for the Accused Michael Read: J. Narwal Counsel for the Accused Bryan Oldham: R.G. DeBou Counsel for the Accused Shawn Womacks: C.L. Webster Place and Date of Trial/Hearing: Vancouver, B.C. December 2-4, 7-10, 14, 2015, January 4, 11-13, 2016 Place and Date of Judgment: Vancouver, B.C. February 23, 2016 I Introduction [1] The Crown seeks to qualify Jacques Lemieux to give expert opinion evidence as to: (a) the nature and characteristics of the Hells Angels organization

including its origin, structure, composition, purpose and activities; and (b) the main purposes and activities of the Hells Angels and whether these include the facilitation or commission of serious offences that afford material benefit to its members. [2] This evidence is proposed to be adduced in relation to Count 2 - that David Giles, James Howard and Bryan Oldham committed conspiracy to traffic cocaine for the benefit of, at the direction of, or in association with a criminal organization, the Hells Angels; and Count 4 - that David Giles, James Howard and Bryan Oldham, committed possession of cocaine for the purpose of trafficking for the benefit of, at the direction of, or in association with a criminal organization, the Hells Angels. [3] The proposed evidence relates directly to an essential element of those charges; namely, that the Hells Angels is a criminal organization as defined in the Criminal Code. Section 467.1(1) defines criminal organization as follows: 467.1 (1) The following definitions apply in this Act. criminal organization means a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a

financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence. [4] The Crown submits in addition that the proposed evidence also relates to the issue of whether the offences alleged in the indictment were committed "in association with" the Hells Angels as a criminal organization, pursuant to s. 467.12 which provides: 467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. II Background A. Mr. Lemieux's Professional Experience [5] Mr. Lemieux joined the Royal Canadian Mounted Police ("RCMP") as a special constable in 1975. In 1978 he attained the rank of Constable. He became a Corporal in 1992 and a Sergeant in 1995. In 2001 he attained the rank of Staff Sergeant, which rank he held until his retirement from the force in April 2008. Following his retirement, Mr. Lemieux worked with the RCMP as a temporary civilian employee from January 2009 to July 2012. [6] Mr. Lemieux described his professional experience as it relates in particular to the Hells Angels in the voir dire. He noted that from December 1978 to February

1981, he worked as a drug investigator in the Chicoutimi region in the Province of Quebec. As part of his duties he investigated, assisted in searches and conducted physical surveillance with respect to several groups that he described as "outlaw motorcycle gangs". These groups were not the Hells Angels, however Mr. Lemieux stated that he found that these groups were similar in many respects to the Hells Angels. [7] In the period of March 1981 to September 1987, Mr. Lemieux worked as a drug investigator in the Quebec City region. During this period he had extensive experience with investigations of a number of different biker clubs, again other than the Hells Angels. These investigations included undercover operations and physical surveillance of these groups. [8] Between September 1987 and May 1991, Mr. Lemieux worked as a criminal intelligence investigator for organized crime stationed in Quebec City. In this positon his role was to gather information and to investigate members of organized crime in the region. His primary mandate was the Quebec City Hells Angels chapter. The investigations included extensive electronic and physical surveillance of members of the club, their associates and the clubhouse. He participated in a search of the clubhouse and in two major projects involving the importation of drugs into Canada by members of the Quebec chapter of the Hells

Angels. [9] In the period between May 1992 and October 2000, Mr. Lemieux was a national coordinator for the Outlaw Motorcycle Gang Project while at the Criminal Intelligence Service Canada ("CISC"). He described his duties as consisting of gathering, correlating and analyzing information received from law enforcement agencies and from municipal, provincial and federal agencies across Canada regarding outlaw motorcycle gangs and in particular, the Hells Angels. He also acted as a liaison and gathered documentation and intelligence from law enforcement agencies in the United States and Europe. In the course of his duties, he attended the national and international meetings with investigators who were actively involved in the investigation of outlaw motorcycle gangs. [10] In June 2000, Mr. Lemieux organized an expert witness course on outlaw motorcycle gangs on behalf of the CISC. The course was attended by law enforcement officers from across the country. The object of the course was to share factual information and to prepare investigators for testifying in court. [11] Between October 2000 and August 2003, Mr. Lemieux was working as an investigator in the integrated proceeds of crime section. His duties were to investigate and bring organized crime groups before the courts on substantive charges and to seize assets believed to be the proceeds of crime. [12] From August 2003 to

August 2004, Mr. Lemieux was an operational NCO in the Combined Forces Special Enforcement Unit. His responsibilities included overseeing projects that the unit investigated. The group's mandate was to investigate and bring before the courts organized crime groups. [13] Between August 2004 and April 2008, Mr. Lemieux was in charge of the RCMP Ottawa Drug Section consisting of 40 investigators. He continued to attend national and international workshops on outlaw motorcycle gangs and to lecture at the Canadian Police College. [14] After his retirement, while he was retained as a temporary civilian employee, his responsibilities included developing a national expert witness program and acting as a facilitator for the expert witness evidence workshops. [15] Mr. Lemieux has attended numerous national and international conferences on outlaw motorcycle gangs primarily in his role with the CISC. He has lectured regarding the outlaw motorcycle gang phenomenon and on the topic of outlaw motorcycle gangs, through CISC and the Canadian Police College. He has contributed to several publications aimed at law enforcement officers on the topic of outlaw motorcycle gangs. [16] Mr. Lemieux has been qualified as an expert witness concerning the activities, characteristics and main purposes of the Hells Angels on 15 previous occasions. Of particular note, in this jurisdiction he was qualified in

R. v. Giles, Revell and Rempel, 2008 BCSC 76 [Giles], to give expert opinion evidence with respect to the nature and characteristics of the Hells Angels organization, the main purposes and activities of the Hells Angels organization and whether they constitute the facilitation or commission of serious offences that afford a material benefit to its members. In R. v. Violette, 2008 BCSC 920 [Violette], he was qualified to give expert opinion evidence concerning the nature and characteristics of the Hells Angels motorcycle club, and that one of the main purposes of the Hells Angels motorcycle club is the facilitation or commission of serious criminal offences for the material benefit of its members. B. Production of Information Relied upon by Mr. Lemieux [17] Mr. Lemieux relied upon a number of sources in coming to his opinion. First is his personal firsthand experience in conducting investigations including physical surveillance, listening to intercepted communications, attending rides of the Hells Angels and conducting searches of clubhouses. A second source of information is the review of documents and physical evidence, some seized in the course of searches in which he was involved as an investigator, some provided from other law enforcement agencies, some part of disclosure in unrelated cases and finally, some seized during the course of this investigation. A third source is

information obtained during conversation with other members of law enforcement and at workshops and lectures. [18] Mr. Lemieux has interviewed confidential agents, informants and ex- members of Hells Angels, some named and some unnamed. Mr. Lemieux has reviewed certain transcripts of testimony given by agents. He has read some Canadian decisions related to criminal organization cases and reviewed some Hell Angels websites. Finally, Mr. Lemieux has read some books and articles on the subject of the Hells Angels. This reading did not follow any systematic approach and was not part of any course of study. He has not reviewed the academic literature. [19] The Crown provided notice of Mr. Lemieux's opinion pursuant to Criminal Code s. 657.3. Mr. Lemieux did not provide any material in support of his opinion or anything that could be described as his file in relation to the opinion. [20] Mr. Read, who at the time was named in the criminal organization counts, brought an application seeking further disclosure. The application for disclosure was dismissed; however, in reasons indexed at 2015 BCSC 2041, further particulars were ordered pursuant to s. 657.3(5)(b). In those reasons, I noted that the Crown advised that he had asked Mr. Lemieux if he had any materials that would constitute a file and had been told that Mr. Lemieux had no file in relation to the opinion. In addition, the

prosecutors did not have any of the requested material. [21] I noted at para. 16 of the reasons that the issue of the non-disclosure of material foundational to the opinion was an issue that was relevant to the admissibility of the opinion and that the issue would be addressed anew in the context of the present application. [22] Subsequent to the application for further disclosure but prior to this hearing, Mr. Lemieux provided a binder of documents to the Crown, who in turn disclosed it to the defence (marked as Exhibit A for identification on the voir dire). [23] It is not entirely clear what this binder represents. Mr. Lemieux stated at one point in his testimony that he believed that this binder dates from 2002 and consists of materials from a law enforcement expert witness workshop. (December 3, 2015, pg. 9 Ln. 20-35) He later testified that he assembled the binder from materials that he acquired in the course of his duties. The contents represented what he considered pertinent documents he had received in support of his opinion. (December 8, 2015, pg.

12) He stated that the documents in this binder were the ones that are directly relevant to his opinion. (December 8, 2015, pg. 13 Ln. 7-14) [24] He stated that at some point he had put the binder in his garage and forgotten about it. He stated that he did not use the contents of the binder in preparing his opinion in this matter. (December 3, 2015, pg. 10 Ln. 4-15) [25] Mr. Lemieux also stated that he had boxes of material at his home relating to the issue. His evidence was that when the Crown made the request, counsel asked if he had any binders. He stated that in response to the request, he looked through the boxes of documents but could not find any binders, so he had answered no to the inquiry because he had forgotten about this binder. Then when he later found this binder in his garage, he provided it to the Crown. (December 8, 2015, pg. 11 Ln. 11-37) He said the boxes of information contained materials seized in different investigations. [26] Mr. Lemieux stated that he had no notes of any interviews with any sources or arising from his review of documents, exhibits, transcripts, books or articles. He stated that when he was first interviewing agents, informants and ex-Hells Angels, he had no idea that he would one day be testifying as an expert and so did not take or keep notes. [27] I note, however, that Mr. Lemieux was first qualified to testify as an expert witness in

2000; however, it appears that nothing changed in relation to his preparation and maintenance of a file relating to his opinion after that time. For example, he agreed that in 2008 and thereafter he would request particular information or documents from the RCMP records. He would not make a note of such documents and did not recall that he kept copies of such material. (December 8, 2015, pg. 14 Ln. 7-33) No such material was provided to the defence in this case. [28] In relation to the preparation of this opinion, it was his evidence that he made notes when he was reviewing the materials specific to this investigation. He made notes in the course of this review which he then destroyed after his notice of opinion was prepared. (December 8, 2015, pg. 18 Ln. 45-47, pg. 19 Ln. 1-12) [29] Mr. Lemieux made reference to a February 1999 CISC check of the Canadian Police Information Centre ("CPIC") for the criminal records of all known Canadian Hells Angels and prospects. He relied upon the results of this search in the opinion but has apparently kept no copy of the document. He also made reference to and relied upon other CISC searches conducted in 2005 and 2008. These postdated the commencement of his role as an expert witness, but apparently he adopted the same approach with respect to these documents. It is clear that they were not provided to the defence. III Legal Principles A.

Opinion Exclusionary Rule [30] An opinion is an inference, deduction, impression, or conclusion drawn from an observed fact or facts, see McWilliams' Canadian Criminal Evidence, 5th ed., vol. 2, c. 12:10 pg. 12-2, and R. v. Abbey, [1982] 2 S.C.R. 24 [Abbey 1982]. The general rule is that witnesses testify as to facts while the conclusions or inferences derived from primary facts are the exclusive province of the trier of fact. It follows that opinion evidence is presumptively inadmissible, see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 [White] at para.

14. B. Expert Opinion Exception [31] One of the limited exceptions to the general exclusionary rule relates to expert opinion evidence. In circumstances in which the trier of fact will be unable to form his or her conclusions without help because of the nature of the facts at issue, an exception to the opinion rule may be made and expert opinion evidence admitted. It is the expert's function to provide the trier of fact with a ready-made inference from the facts which the trier of fact, due to the nature of the facts, is likely unable to formulate themselves: Abbey 1982 at 42. [32] As Justice Cromwell, for the Court, noted in White at para. 16, since at least the mid-1990s the Court has responded to concerns about the impact on the litigation process of expert evidence of dubious value. Two such concerns have particular resonance in the context of this application. The first is the concern that the expert will usurp the function of the jury, that the jury "will be unable to make an effective and critical assessment of the evidence", see R. v. Abbey, 2009 ONCA 624 at para. 90 [Abbey 2009]; and R. v. Sekhon, 2014 SCC 15 [Sekhon], per LeBel J. at para.

75. A second concern is the potential prejudice created by an expert's reliance on unproven material not subject to cross-examination, see R. v. D.D., 2000 SCC 43 at para. 55; and Giles at para. 11. [33] In response, as noted in White, the jurisprudence has steadily clarified and tightened the threshold requirements for admissibility and emphasized the role that judges should play as "gatekeepers" to screen out proposed evidence whose value does not justify the risk that might result from admission. C. Test for Admissibility [34] In R. v Mohan, [1994] 2 S.C.R. 9 [Mohan], the Court articulated a four-part test for the admissibility of expert opinion evidence. These criteria are: relevance, necessity, absence of an exclusionary rule and a properly qualified expert. [35] In Abbey 2009, the court divided the inquiry into two steps. In White, the Supreme Court of Canada essentially adopted this approach, which is described at paras. 23 and 24 as follows: [23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para.

47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283, 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396, at para. 72. [24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the "reliability versus effect factor" (p. 21), while in J.-L.J., Binnie J. spoke about "relevance, reliability and necessity" being "measured against the counterweights of consumption of time, prejudice and confusion": para.

47. Doherty J.A. summed it up well in Abbey, stating that the "trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence": para. 76.

1. Threshold Principles - Mohan (a) Relevance [36] Relevance at the threshold stage refers to logical relevance; that is, the requirement that the evidence as a matter of human experience and logic has a tendency to make the existence or non-existence of a fact in issue more or less likely, see Abbey 2009 at para. 82 and White at para. 23. (b) Necessity [37] Necessity at the threshold stage means that the evidence must provide information "which is likely to be outside the experience and knowledge of a judge or jury", see Violette at para.

45. The evidence must be more than merely helpful, but absolute necessity is not required. (c) Absence of an Exclusionary Rule [38] Expert evidence meeting all other Mohan criteria will not be admitted if it offends an exclusionary rule apart from the opinion rule, see Violette at para.

66. In the present case the issue of hearsay is of particular relevance. (i) Hearsay [39] Hearsay has relevance in two aspects in relation to an expert opinion. The first is as one source of the expert's expertise. In Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 2d. ed., (Toronto: Butterworths, 1999) at §12.88, the authors note: An expert's knowledge is made up of the distilled assertions of others not before the court. Recognition of this hearsay basis of expertise has been acknowledged by Canadian courts for some time. One example is a New Brunswick decision in which it was said: A doctor, chemist, professional man or any other person who qualifies as an expert is not confined to opinions based solely on his personal experience of observation, but may draw on information obtained from lectures during his education in his particular field, textbooks, as well as from discussions with other persons learned in the same field. The weight to be given to any opinion is always a matter for the consideration of the trial Judge. Reference Re Sections 222, 224 and 224A of the Criminal Code (1971), 18 D.L.R. (3d) 559 (N.B.C.A.) [40] The second way in which hearsay has relevance is in relation to the factual basis of an expert's opinion. There are three potential sources for the opinion offered by an expert. The first source is facts which are the direct observations of the

expert; for example, a physician's observations of the physical condition of the person examined. The second source is facts provided to the expert; for example, the contents of an interview conducted by the expert. The third potential source is a hypothetical provided to the expert by counsel. The second source, which consists of information which serves as a factual foundation for the opinion that is outside the expert's own observation engages considerations of hearsay. [41] In Abbey 1982, the Court articulated principles concerning the admissibility and weight of an expert's opinion in relation to an expert's report based in whole or in part on hearsay. These principles were described by Wilson J. in R. v. Lavallee, [1990] 1 S.C.R. 852 [Lavallee] at 893 as follows: 1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence.

2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.

3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.

4. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. [42] In Lavallee, Justice Sopinka, in a concurring decision, suggested refinements to the treatment of the issue of hearsay relied upon by the expert. At 898 and 899, Justice Sopinka distinguished between opinion based upon forms of enquiry and practice that are accepted as a means of decision within that expertise where there are strong circumstantial guarantees of trustworthiness, with those which rely upon a source which is inherently suspect, such as a party to the litigation. In both cases the hearsay is admissible to show the basis of the opinion. However, in the case of the former, independent proof of the hearsay will not be required, but independent proof of those facts will be required in the case of the latter. [43] In R. v. S.A.B., 2003 SCC 60 [S.A.B.], the Court adopted the distinction described by Sopinka J. In that case the DNA expert had relied upon international guidelines to explain and support her conclusion that the non-matching test sample was a mutation. The Court held that the expert was entitled to rely upon such sources within her field without the necessity for independent proof of those sources. Another example of the application of this distinction is the case of City of Saint John v. Irving Oil Co. Ltd., [1966] S.C.R. 581, in

which the issue was the reliance by an appraiser upon information of comparable transactions he had investigated in coming to his opinion. [44] By contrast, examples of situations in which independent proof of the hearsay relied upon by the expert has been required include: statements of the accused, complainant, friends or relatives, see Abbey 1982; and Lavallee. [45] In Myers v. The Queen, [2015] UKPC 40 [Myers], the Privy Council addressed this issue in the particular context of police expert evidence in relation to gang activity. Lord Hughes, for the Board, noted at paras. 63 and 64: It is well established that an expert is entitled, in giving his evidence, to draw upon the general body of knowledge and understanding in which he is expert, notwithstanding that some (or even all) of the material may have been assembled by other students of the subject. It does not, however, follow that because the witness is an expert he is immune from all inhibition on hearsay. He is not. [46] At para. 66 a suggested division was proposed: The test of whether evidence based upon hearsay material can be given is better seen to be whether it ceases to be the expounding of general study (whether by the witness or others) and becomes the assertion of a particular fact in issue in the case. The first is expert evidence, grounded on a body of learning or study; the second is not, even if it may

be given by someone who is also an expert. The line between the two is case-specific, but it will usually be possible to discern it. [47] In that case evidence about the places of association, the culture of the gangs or the signs used to communicate by gang members was based in part upon personal observation, supplemented by information accumulated by the officer's unit from many sources. The court observed that such evidence would be legitimately given but added the proviso that such evidence, depending on the context, could pass the point at which it was no longer a matter of general study or accumulated knowledge. Lord Hughes noted that: That is one reason why it is essential that a witness such as Sergeant Rollin sets out from the beginning the sources on which he has relied [48] Justice Trafford, in R. v. Sappleton and Eubank, 2010 ONSC 5704 [Sappleton] at 86, adds a qualification that is of particular importance in the context of a criminal proceeding; namely that hearsay will not be admissible, even for the limited purpose of proving the foundation of the opinion, where there are constitutional or other legal principles precluding its admissibility: Where there are constitutional or other legal principles that preclude the admissibility of some or all of that information, it is not admissible, even for the limited purpose of proving the foundation of the opinion. In

this case, the information from the confidential informants and the debriefing of arrestees has not been the subject of judicial summaries. To permit the Crown to include their information in the foundation of the opinion would unduly interfere with the right of the defendants to make full answer and defence. [49] Thus, it appears to be settled that an expert is entitled to rely on secondary sources as part of the factual foundation for his or her opinion: (a) where there are no other constitutional or legal impediments to preclude the admission; in particular, the right of the accused to make full answer and defence; (b) where such sources are referred to as part of the forms of enquiry and practice accepted within the expertise. [50] Where hearsay is admissible in this context, the court must address whether the hearsay is admissible through the expert only as evidence of the foundation of the opinion, such as the statements made to a psychiatrist in Abbey 1982, or as evidence of the facts asserted without the need for independent proof, such as the international guidelines in S.A.B. [51] The critical inquiry in this regard is the question of sufficient circumstantial guarantees of trustworthiness. The extent to which the hearsay represents the product of "general study or accumulated knowledge" as distinct from an assertion relating to a fact at issue in the case will be one

important factor in this determination. Another important factor will be the methodological rigour of the process of study and accumulation of knowledge. Finally, in my view, the closer the subject matter of the opinion is to an ultimate issue in the case, the greater scrutiny will be required in making this determination. (ii) Character Evidence [52] The rule against character evidence prevents an improper chain of reasoning based upon propensity. However, evidence which demonstrates bad character may be admitted if it is relevant to an issue in trial apart from propensity, see Violette at paras. 80 and 81. In particular, as noted by Mackenzie J.A. in R. v. Terezakis, 2007 BCCA 384 at para. 46: Criminal organization offences make evidence of general propensity and bad character probative that would otherwise be excluded as prejudicial. (d) Properly Qualified Expert [53] In Mohan, Justice Sopinka defined the test for a properly qualified expert at 25 as follows: The evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify. [54] While the basic test identified in Mohan has not changed, in the intervening years it has become clear that the expert must be qualified to express the specific opinion proffered. The expert must be confined to express opinions within the scope of that qualification. Finally, there must be an evidentiary foundation to support the qualification and scope, see R. v. Orr, 2015 BCCA 88. [55] It is well established that formal training or certification is not a requirement for qualification as an expert, see R. v. Marquard, [1993] 4 S.C.R.

223. There is, as well, a substantial body of case law to support the admission of expert evidence from police officers whose qualification derives from their working experience, see Sekhon. Finally, there is a substantial body of case law supporting the qualification of a police witness as an expert in relation to the particular matters that the Crown seeks to qualify Mr. Lemieux to address in the present case; see for example, R. v. Lindsay & Bonner, 2004 CanLII 34074 (Ont. S.C.J.) [Lindsay]; Giles; Violette; and R. v. Alcantara, 2012 ABQB 225 [Alcantara]. As noted above, Mr. Lemieux has been previously qualified to give such expert opinion evidence in a number of cases, including the Giles and Violette matters in this jurisdiction. [56] It is clear that such evidence must meet the threshold requirements for expert evidence and must comply with the rules relating to such evidence, see Myers at para.

57. Nevertheless, this type of evidence has given rise to particular concerns that have been identified by the courts. First, there is the danger of what is essentially anecdotal evidence being cloaked as expert opinion, see Sekhon at para. 50 per Moldaver J. A related concern is that the evidence will amount to nothing more than the theory of the Crown cloaked with an aura of expertise, see Sekhon at para. 75 per LeBel J. Special scrutiny is therefore required, particularly where such evidence, as in the present case, approaches the ultimate issue, see Sekhon at para. 76 per LeBel J. [57] Helpful language with respect to appropriate requirements for such evidence is found in an Australian case, R. v. Cluse, [2014] SASCFC 97 [Cluse], in which Kourakis C.J. noted at paras. 14 and 15: Be that as it may, there is no doubt that a properly qualified expert can give evidence, in general terms, about the significance of certain indicia of gang membership in the context of the general nature, hierarchy, rules and practices of the criminal gang concerned. It would then be a matter for a jury to determine whether or not to draw an inference of membership. There is also a distinction between evidence of the general purposes, nature and structure of a gang on the one hand and evidence of particular offending or gang conflicts on the other. Opinion evidence of the former kind is admissible

when it is founded on the study of systematically collected and validated data confirmed from a variety of sources which may include personal experience. On the other hand evidence of a particular conflict or incident is, speaking generally, unlikely to be sufficiently based on information verified by multiple sources over time. However, if direct evidence is adduced of a particular conflict or incident, as it was in this case, the opinion evidence of a properly qualified police expert on the ways in which gangs are known to wage their internecine conflicts will be admissible to provide the jury with the context in which to evaluate that direct evidence. [58] In the same decision, Vanstone J. notes the following at para. 49: However, in my opinion, Featherby should not have been permitted to give evidence of the specific instances of violence between motorcycle gangs, in circumstances where he was neither a direct observer nor involved in the investigation of those incidents. It is one thing to allow a police officer to give evidence of his knowledge of practices in the drug trade or his knowledge of the culture of motorcycle gangs where the witness's knowledge of such matters may well be based on a mass of information, some of it hearsay. Yet, it is quite another to allow a witness simply to relate the details of specific incidents which he has learned from secondary sources.

Even expert witnesses in the traditional sense do not do that as a basis for expression of an opinion. I consider that the evidence given by Featherby of specific episodes of inter-gang conflict was, with some possible exceptions based on direct observation, inadmissible. [59] In Myers, Lord Hughes, for the Board, noted at para. 58: But the officer must have made a sufficient study, whether by formal training or through practical experience, to assemble what can properly be regarded as a balanced body of specialised knowledge which would not be available to the tribunal of fact. The police witness in Oakley had passed an examination and had attended and analysed thousands of road accidents. The officer in Hodges had analysed prices over a period of 12 years and checked every drugs file in his area. In both cases the necessary expertise was easily established. But care must be taken that simple, and not necessarily balanced, anecdotal experience is not permitted to assume the robe of expertise. An example is given by the Canadian case of Sekhon v The Queen [2014] 1 SCR 272, where in the course of otherwise perfectly permissible expert evidence as to drug practices, there was adduced from the officer the fact that he had never encountered an innocent courier. That was clearly not a balanced, tested or researched proposition as to the methods of drug importers, but simply his

personal experience. It was not admissible and indeed proved nothing about the particular defendant on trial. [60] In R. v. Pham, 2013 ONSC 4903, Durno J. dealt with the issue of the scope of the expertise of an RCMP officer the Crown sought to qualify as an expert witness. The officer had extensive experience in drug investigations and dealing personally with drug users. He had also supplemented his knowledge with workshops and reading. [61] The Crown sought to qualify him to give expert evidence with respect to the "Nature of heroin and opium and its effects, methods of consumption; methods of distribution, including importation and hierarchy in drug organizations, production, pricing and concealment and packaging of heroin and opium; associated street terminology; and the habits and behaviours of users of heroin." The court found the witness to be qualified in relation to matters such as methods of consumption and distribution but not qualified to give evidence on the effect of heavy heroin use and whether the symptoms of the accused were consistent with such use. [62] Durno J. provides a non-exhaustive list of factors to assist in the determination of whether the witness is qualified at para. 31: [31] In summary, the following non-exhaustive list of factors assist in determining whether a tendered expert witness is qualified: · the manner in which the witness acquired the

special skill and knowledge upon which the application is based; · the witness' formal education (i.e. degrees or certificates); · the witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons); · the witness' membership and participation in professional associations related to his or her proposed evidence; · whether the witness has attended additional courses or seminars related to the areas of evidence in dispute; · the witness' experience in the proposed area(s); · whether the witness has taught or written in the proposed area(s); · whether, after achieving a level of expertise, the witness has kept up with the literature in the field; · whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whether the previous evidence was contested; · whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and · whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence. [63] The conclusion with respect to the permitted scope of the qualification is set out at para. 65: [65] Where problems arise is when the officer goes beyond his main sources of information, what he has learned on the street in his police and community work, and gets

into areas of medicine, pharmacology, toxicology and addictionology. To use Ms. Carrasco's terms, his knowledge base is his dealings with heroin users. The problems arise when he goes beyond his knowledge base. I am not persuaded he has sufficient experience to be qualified to give evidence in these areas. No doubt there have been some references to areas of toxicology, medicine, pharmacology and addictionology of heroin as well as other controlled substances at the workshops. However, listening to a lecture for some unspecified period of time at a workshop that dealt with the contested areas does not qualify the witness as an expert.

2. Second Stage Analysis - Abbey 2009 [64] At this stage, the court is to assess evidence that has satisfied the Mohan threshold criteria and to consider whether the evidence is sufficiently beneficial to the trial process to warrant admission despite the potential harm that its admission may entail, see Abbey 2009 at para.

76. As Doherty J.A. notes at para. 79, this stage of the analysis does not involve the application of bright line rules. The analysis requires the exercise of judicial discretion and is a case-specific inquiry. [65] The benefit side of the analysis addresses issues relating to the probative value of the evidence. The court is to consider the reliability of the evidence in terms of its subject matter, the methodology used by the proposed expert, the expertise and impartiality of the proposed expert, see Abbey 2009 at para. 87. [66] The cost side of the analysis focuses on "consumption of time, prejudice and confusion". Doherty J.A. describes the most important of these risks as the "danger the jury will be unable to make an effective and critical assessment of the evidence", Abbey 2009 at para.

90. D. Duties of an Expert [67] As noted in White at para. 26, there is little controversy about the broad outlines of an expert witness's duty to the court. A list of duties and responsibilities of an expert witness was identified by Cresswell J. in the English case National Justice Compania Naviera S.A. v. Prudential Assurance Co., [1993] 2 Lloyd's Rep. 68 (Eng. Comm. Ct.). This list was endorsed on appeal: Re the Ikarian Reefer, [1995] 1 Lloyd's Rep. 455 (Eng. CA) at p 496. [Ikarian Reefer]. [68] The duties and responsibilities identified in that case have been acknowledged by Canadian courts, see White at para.

27. Although the list arose in the context of a civil case, the same duties and responsibilities have been found to apply to the expert in criminal cases: see Myers; and Sappleton at 20. [69] The duties and responsibilities of an expert witness identified by Cresswell J. are: The duties and responsibilities of expert witnesses in civil cases include the following: 1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v Jordan, [1981] 1 WLR 246 at p 256, per Lord Wilberforce).

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc, [1987] 1 Lloyd's Rep 379 at p 386 per Mr Justice Garland and Re J, [1990] FCR 193 per Mr Justice Cazalet). An expert witness in the High Court should never assume the role of an advocate.

3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J sup).

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J sup). In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co Ltd and Others v Weldon and Others, The Times, Nov 9, 1990 per Lord Justice Staughton).

6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice). [70] An aspect of these duties that has particular significance in the context of the present case was noted by Trafford J. in Sappleton at 21: The testimony of the proferred expert should include evidence to prove the expert has complied with those standards. [71] In my view, these duties and responsibilities arise from the need to have the assistance of the expert while ensuring that the expert's testimony does not distort or overwhelm the integrity of the trial process. As such, in my view, a consideration of the extent to which these duties and responsibilities have been discharged is an important aspect of the second stage review. Concerns about a usurpation of the role of the trier of fact and prejudice to the other party arise to the extent to which these duties and responsibilities have not been discharged.

1. Objectivity [72] The expert's duty of objectivity is at the core of the expert's responsibility to the court. In White at para. 12, Cromwell J. noted in relation to concerns about the independence and impartiality of expert witnesses that: [12] Recent experience has only exacerbated these concerns; we are now all too aware that an expert's lack of independence and impartiality can result in egregious miscarriages of justice: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para.

52. As observed by Beveridge J.A. in this case, The Commission on Proceedings Involving Guy Paul Morin: Report (1998) authored by the Honourable Fred Kaufman and the Inquiry into Pediatric Forensic Pathology in Ontario: Report (2008) conducted by the Honourable Stephen T. Goudge provide two striking examples where "[s]eemingly solid and impartial, but flawed, forensic scientific opinion has played a prominent role in miscarriages of justiceˮ: para.

105. Other reports outline the critical need for impartial and independent expert evidence in civil litigation: ibid., at para. 106; see the Right Honourable Lord Woolf, Access to Justice: Final Report (1996); the Honourable Coulter A. Osborne, Civil Justice Reform Project: Summary of Findings & Recommendations (2007). [73] Justice Cromwell defined that duty as follows at para. 32: [32] Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another. [74] There had been debate in the jurisprudence about whether questions about an expert's independence and objectivity went to admissibility or only to weight. The debate was resolved by the Court in White. The Court concluded at para. 53 that concerns related to the expert's duty to the court and his or her willingness and capacity to comply with that duty are to be addressed initially in the "qualified expert" element of the Mohan framework noting that: A proposed expert witness who

is unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert." [75] If the expert evidence meets the threshold criteria, the court is then to take concerns with the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. As Cromwell J. notes at para. 54: [54] At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence.

2. The Expert Must State the Facts and Assumptions upon which the Opinion is Based [76] As noted above, one of the fundamental responsibilities of the expert is to set out the facts and assumptions upon which his or her opinion is based. A corollary to this duty is that the expert is not to make findings of fact, as this is the sole province of the trier of fact. [77] This proposition was addressed in this jurisdiction in a series of leading decisions arising from civil cases including: a) Hennessy v. Rothman (1988), 26 B.C.L.R. (2d) 322 (S.C.), per Meredith J. at 325: Some of the frailties in the report to which I have referred are reflected in this passage from Cross on Evidence, 5th ed. (1979), at p. 446: The facts upon which an expert's opinion is based must be proved by admissible evidence, and he should be asked in-chief what those facts are. If he observed them, he may testify to their existence b) Quintette Coal Ltd. v. Bow Valley Resource Services Ltd. (1988), 29 B.C.L.R. (2d) 127 (S.C.). Spencer J. stated about the role of the expert in this regard at 129-30: 6. He may not make conclusive findings of fact on issues disputed between the parties, but he may state certain facts as the hypothesis upon which he reaches an opinion or refer to matters which are already put in evidence. In each case he should make clear what hypotheses or evidence he relies upon. It will be

for the court to decide eventually whether that hypothesis is made out or whether the appropriate facts are found from that evidence. c) Surrey Credit Union v. Willson (1990), 45 B.C.L.R. (2d) 310 (S.C.), per McColl J. at 317: 3. Where he has given an opinion upon facts made known to him he is bound to disclose those facts and how they came to his attention; 4. Where he has made assumptions he is bound to explain the basis upon which those assumptions have been made; 6. He may not make conclusive findings of fact on issues in dispute and may not offer an opinion as to how the law should apply to any of those facts [78] This responsibility has been identified in relation to a police expert witness giving gang-related opinion evidence in Myers at para. 67: it is essential that a witness such as Sergeant Rollin sets out from the beginning the sources on which he has relied [79] In Myers, the Board cited with approval the advice from the Court of Appeal as to the duties of an officer tendering such evidence at para. 68: In its judgment in the case of Cox, the Court of Appeal offered at para 40 some valuable advice as to the presentation of evidence of this kind. The Board endorses this helpful approach, and would expand a little upon it. As part of the duty of an expert witness to the court, a police officer tendering the kind of evidence called in these cases must make full

disclosure of the nature of his material. His duty involves at least the following. (a) He must set out his qualifications to give expert evidence, by training and experience. (b) He must state not only his conclusions but also how he has arrived at them; if they are based on his own observations or contacts with particular persons, he must say so; if they are based on information provided by other officers he must show how it is collected and exchanged and, if recorded, how; if they are based on informers, he must at least acknowledge that such is one source, although of course he need not name them. (d) In relation to primary conclusions in relation to the defendant or other key persons, he must go beyond a mere general statement that he has sources of kinds A, B and C, but must say whence the particular information he is advancing has come; an example would be observations of a defendant in the company of others known to be members of a gang.

3. Production of Material Relied upon by the Expert [80] Another of the responsibilities of the expert identified in Ikarian Reefer is the production of materials the expert has relied upon in coming to his or her opinion. This is one of the responsibilities of the expert and is distinct from the duties of the Crown in relation to Stinchcombe disclosure. In the context of a criminal case, this issue also engages the right of the accused to make full answer and defence. [81] The consequence of a failure to provide such information may be that the expert be precluded from making reference to the material in the opinion. For example, in Sappleton, the officer had received information from a number of confidential informants believed by him to be independent of one another and reliable. This information was not disclosed to the defence in any form. Justice Trafford concluded that the Crown could not rely upon the information in the voir dire or at trial, stating at 34: In my view, the right to make full answer and defence included, in the circumstances of this case, the right to consider the information received by Detective Backus from the confidential informants, or judicial summaries of it, and all of its pertinent circumstances, including the investigation of the reliability of the informant and the information. This information or a judicial summary of it is necessary for the

defence to challenge the admissibility of the opinion. See R. v. Durette (1994), 88 C.C.C. (3d) 1 (S.C.C.) at 52-55 for a statement of these principles in the context of an application under R. v. Garofoli, supra, to exclude wiretap evidence. Those principles should, in my view, apply with equal force in a case like this one. For these reasons, the Crown may not rely upon the information obtained from confidential informants on this application. See 93, 97 and 100 of Sappleton re inadmissibility at trial; See R. v. Sandham, 2009 CanLII 59150 (Ont. S.C.J.). [82] In R. v. Gager, 2012 ONSC 388 [Gager], Justice Clark held at para. 223 that the officer could express an opinion with respect to the existence of two gangs and could rely upon hearsay information in support of that opinion, provided that the information had been disclosed to the defence. The officer was not permitted to rely upon a report from a confidential informant that had not been provided to the defence, see para.

252. IV Discussion A. Threshold Criteria 1. Relevance [83] I am satisfied that, with one area of exception, the expert opinion evidence that the Crown seeks to introduce through Mr. Lemieux is relevant to matters at issue at trial. The evidence is directly relevant to the issue of whether the Hells Angels is a criminal organization as defined in the Criminal Code. [84] The Crown submits that Mr. Lemieux's evidence with respect to the Hells Angels' involvement in drug trafficking and its reputation is also relevant to the Crown's theory that the drug offences were committed in association with a criminal organization. Mr. Giles submits that the proposed evidence is not relevant with respect to the latter issue in the circumstances of this case since the reputation of the Hells Angels could not serve as any sort of inducement given that the transaction was orchestrated by the police. In my view, the proposed evidence has some relevance to that issue, the extent to which it is probative being a matter for trial. [85] The exception relates to the use of the term "outlaw motorcycle gang". Mr. Lemieux provided the following definition of an outlaw motorcycle gang: Q Okay, and before we go any further, can you define what you mean by that term, outlaw motorcycle gang, that's used in your curriculum vitae? A The outlaw motorcycle gangs are referred to individuals who band together and

live outside of society's law and identify themselves as One Percenters. (December 2, 2015, pg. 7 Ln. 3-9) Q Or One Percenter, I should say. And I think you indicated that there was a patch as well, a One Percenter patch, is that correct? A Yes, the Hells Angels have been using the, it's a diamond with the one percenter inside of the diamond. And it is my opinion, within the criminal milieu, that they are identifying themselves as One Percenters outlaw motorcycle gang, which indicates within the criminal milieu, that they are an outlaw biker gang. They did not abide by the law. (December 7, 2015, pg. 11 Ln. 17-22) [86] He identified the Hells Angels as an outlaw motorcycle gang; see for example: As I mentioned earlier, the reputation of the Hells Angels is one of the most sophisticated and feared outlaw motorcycle gang in the world. (December 4, 2015, pg. 57 Ln. 35-39) Again, the ‑- I'm not saying that the Hells Angels are the only outlaw motorcycle gang that exists in the country. And however, I ‑- they are the most powerful, in my opinion, within this country... (December 7, 2015, pg. 18 Ln. 23-26) And see: December 2, 2015 pg. 45 Ln. 12-16, December 3, 2015, pg. 2 Ln. 45-46 and pg. 57 Ln. 2-4. [87] I agree with the courts in Alcantara (see para. 118) and Sandham (see paras. 49-50) that the term "outlaw motorcycle gang" is both conclusory and derogatory. [88] I also agree

with Justice Forestell in R. v. Myles, [2011] O.J. No. 4559 (Ont. S.C.) [Myles], that the opinion that the Hells Angels Motorcycle Club meets the characteristics of an "outlaw motorcycle gang" is not relevant to issues in this trial. In Myles, Forestall J. stated at paras. 36-40: 36 Det. Sgt. Davis testified as to the characteristics of "outlaw motorcycle gangs." He testified that the list of characteristics originated in a 1988 Alberta case. While Det. Sgt. Davis was not familiar with the case, he attributed the framing of the term and the characteristics to Justice Pepler who decided the case. On a review of the judgment, it appears that Justice Pepler accepted the definition and characteristics as attested to by police witnesses in that case. 37 Detective Sergeant Davis testified that an 'outlaw motorcycle gang' would have the identified characteristics, which are: Structure, colours, associates, membership, clubhouse, criminal activities, club rules and intelligence gathering. In his report and in his evidence Det. Sgt. Davis used these characteristics as indicators that the organization was a criminal organization as defined in the Criminal Code. 38 The fact that the term "Outlaw Motorcycle Gang", originated in the 1988 King's Crew case, is not logically relevant to any issue in this trial. The Crown was not able to articulate any way in which the jury could be assisted by

knowing that Justice Pepler, in a 1988 case involving different legislation, defined and described 'outlaw motorcycle gangs.' This evidence fails to meet the first stage threshold of logical relevance and is inadmissible. 39 The characteristics of the Hells Angels Motorcycle Club are clearly relevant. However, the opinion of Det. Sgt. Davis that the characteristics of the HAMC would make the HAMC an 'outlaw motorcycle gang' is not relevant. The respondents in this case are charged with committing offences in association with or contributing to a 'criminal organization.' The definition of a criminal organization is not the same as the definition of an 'outlaw motorcycle gang.' 40 In my view, this aspect of the evidence fails to even meet the first stage hurdle of logical relevance. However, even if I had not reached this conclusion on the basis of logical relevance, I would have excluded the evidence on the basis of legal relevance. The general police description of the characteristics of other motorcycle clubs is not sufficiently probative of any issue and is prejudicial in that it would confuse and distract the jury. [89] Like the officer in Myles, Mr. Lemieux has made reference to the eight characteristics of the outlaw motorcycle gang derived from the previous case in his testimony. In my view, the observations with respect to that issue of Justice Forestell are equally

applicable to the opinions proposed in the present case. [90] The Crown has argued that the use of the term is merely an organizing device for sections of the opinion. Mr. Lemieux also stated this in his testimony; see for example, December 4, 2015, pg. 20 Ln. 35-45 and pg. 21 Ln. 1-5, and December 9, 2015, pg. 34 Ln. 32-41. However, in my view it is clear that reference to the term outlaw motorcycle gang is far from merely an organizing device. Mr. Lemieux agreed that he used the categories to formulate his opinion, see December 9, 2015, pg. 34 Ln. 31-41 and December 10, 2015, pg. 15 Ln. 43-47 and pg. 16 Ln. 1-6. As noted above, Mr. Lemieux repeatedly described the Hells Angels as an outlaw motorcycle gang. He emphasized the commonality of characteristics of such groups. [91] In any event, there is no need to refer to the concept of the "outlaw motorcycle gang" in order to refer to characteristics such as structure, membership, rules, colours and the like as organizational devices in the opinion. [92] A related matter that in my view carries with it considerable potential to distract and confuse the jury is the extensive discussion of criminal activities of, and particular behaviour observed, in other groups that Mr. Lemieux describes as outlaw motorcycle gangs. There is extensive reference to such activities and behaviour in Mr. Lemieux's curriculum vitae and in his testimony

at the qualification stage. For example, Mr. Lemieux describes purchasing drugs at the clubhouse of one such group. This is an activity that he did not suggest he had witnessed or participated in during investigations in relation to the Hells Angels. However, references to Hells Angels as an outlaw motorcycle gang could leave the jury with the mistaken impression that the activities Mr. Lemieux described observing in other groups were also attributable to, or characteristic of, the Hells Angels. These references should be excised from the curriculum vitae and should not be addressed in testimony. [93] In the result, it is my conclusion that references to the Hells Angels as an outlaw motorcycle gang, discussion of the characteristics of the outlaw motorcycle gang, description of the characteristics, behaviour and criminal activities of other motorcycle clubs do not meet the requirement of logical relevance. I agree further with the observations cited above in Myles with respect to the legal relevance of this proposed evidence.

2. Necessity [94] I am satisfied that Mr. Lemieux's experience over his lengthy career in law enforcement has given him special knowledge and experience concerning the Hells Angels that goes beyond that of the average trier of fact. I agree with the observations of Romilly J. in Violette that the Hells Angels is a private organization and that details concerning its nature, structure, characteristics and main purposes are not readily available or known to the public at large. Thus, opinion evidence with respect to such matters could be of assistance to the trier of fact. [95] There have been significant concerns raised with respect to the manner of presentation of this opinion. In particular, Mr. Lemieux's failure to state with any particularity the facts upon which his opinion is based, together with concerns with respect to hearsay and the production of information relied upon by Mr. Lemieux. To the extent to which such concerns are well founded, it could be argued that Mr. Lemieux's opinion, as presented, would not be of assistance to the jury and is therefore not necessary. I have concluded that this discussion is more appropriately situated in the context of the second stage inquiry.

3. Absence of an Exclusionary Rule [96] As noted above, Mr. Lemieux's proposed evidence is based in part on hearsay information. However, as noted above, at least where such sources are not otherwise excluded, and are referred to as part of the forms of enquiry and practice accepted within the expertise, an expert is entitled to rely on secondary sources as a basis for his or her opinion. In addition, while the proposed evidence does engage the exclusionary rule concerning bad character, as noted above, evidence which demonstrates bad character may be admitted if it is relevant to an issue in trial apart from propensity. [97] In the present case there are concerns with respect to hearsay in relation to Mr. Lemieux's opinion, in particular: (a) whether hearsay relied upon by Mr. Lemieux as a factual foundation to his opinion should be excluded because the absence of disclosure to the defence impairs the ability of the accused to make full answer and defence; and (b) whether the hearsay relied upon by Mr. Lemieux is admissible solely as evidence of the factual foundation for his opinion or as evidence of the facts upon which the opinion is based. [98] I have concluded that these concerns are more appropriately addressed at the second stage of the inquiry.

4. Properly Qualified Expert [99] I am satisfied that based upon his extensive experience, Mr. Lemieux is qualified to provide expert opinion evidence with respect to all but one of the areas in which the Crown sought to qualify him. [100] The defence has raised concerns with respect to Mr. Lemieux's independence, objectivity and willingness or ability to fulfill the role of an expert witness. Mr. Lemieux has testified that he understands the role of an expert witness and that he is prepared to discharge his responsibilities in that role. [101] As Justice Cromwell noted in White at para. 49, the threshold requirement with respect to objectivity is not onerous. In the present case, I conclude that the concerns identified by the defence do not rise to the level warranting exclusion of all or part of the evidence at this threshold stage. Consistent with White, concerns with respect to Mr. Lemieux's independence and impartiality will be taken into account in the second stage of the inquiry. [102] The one area that is in my view problematic is with respect to his testimony about the origin of the Hells Angels. Mr. Lemieux has been qualified previously to give evidence concerning the history of the Hells Angels in R. v. Grant, 2007 MBQB 135. It is not evident whether or to what extent Mr. Lemieux's qualifications were at issue in that proceeding. Mr. Lemieux was not specifically

qualified to offer such opinions in Violette; however, it would appear from the charge to the jury that at least to some extent Mr. Lemieux expressed some opinions with respect to this issue. [103] His testimony with respect to the basis of his qualification to express an opinion in this area was as follows: Okay. So -- so what is your source of knowledge with respect to that event? A Documentation that I received over the years, where this came down from, again, sources, and I can't recall exactly where I got the information from; however, I did get the information from other law enforcement agencies that did partake or were at that time in that area. Again, I did not communicate directly with them, but it's information that has been handed down over the years. I've also talked to members of the Hells Angels, such as Gilles Lachance and also Anthony Papa, and I asked them directly about the one-percenter patch and they told me that this is an identifier that represents us that are different from the other biker gangs, and that's where I base my knowledge on. (December 4, 2015, pg. 8) [104] Thus, this opinion is not based upon Mr. Lemieux's personal experience. It is not based upon a systematic course of study. He cannot recall specifically where he got the information. Insofar as this evidence relates to the concept of the outlaw motorcycle gang, for the reasons previously

stated, I have concluded that such evidence does not meet the requirement of relevance. [105] There is an additional concern with respect to Mr. Lemieux's evidence with respect to this issue. Mr. Lemieux expressly tied his account of the origin of the Hells Angels and other "1%er" clubs to an incident that occurred in Hollister, California in 1947 and the reaction of the American Motorcycle Association to the incident. He presented this account as uncontroversial and factual. [106] However, he acknowledged in cross-examination that he is aware that the account is the subject of dispute among scholars. He made no reference to this in his testimony in chief: Q And as I understand you, you're saying that the one percent of motorcyclists is generally used to refer to antiestablishment motorcyclist types, correct? A Yes, that is correct. Q Are you aware that scholars have been unable to confirm that the one percent quote was actually said by an AMA spokesman? A Yes, I am aware of that. Q That it may be some urban myth, an urban legend? A Yes. Q All right. A I am aware of that. (December 9, 2015, pg. 62 Ln. 33-45) [107] In short, this aspect of Mr. Lemieux's testimony is not the product of his extensive experience, nor is it the product of a systematic course of study. It relates more directly to the issue of the outlaw motorcycle gang which I have ruled to be irrelevant. Finally,

his testimony in this respect is not the sort of balanced, objective account that one would expect of an expert. I find that Mr. Lemieux is not qualified to express an opinion with respect to the origin of the Hells Angels. B. Discretionary Gatekeeping 1. Overview [108] The position of the Crown is that the proposed evidence is critical to the truth-seeking function of the trial and that its benefits and probative value outweigh the risks of admitting the evidence. Counsel notes that the proposed evidence does not relate to the specific facts alleged in the offences. While the Crown acknowledges some concerns with respect to the evidence, it is counsel's submission that these can be addressed in cross-examination, that they go to weight, not admissibility and that they can be addressed by clear instructions to the jury. [109] The position of the defence is that the proposed evidence is highly prejudicial and that it relates directly to an essential element of the criminal organization offences. Counsel submits that the proposed evidence is fatally flawed by a constellation of factors relating to Mr. Lemieux's independence and objectivity, the absence of disclosure of the sources upon which he relies, his reliance upon hearsay and the failure to disclose at all or with sufficient specificity, the facts upon which the opinion is based. [110] In counsel's submission, these flaws

result in an opinion that effectively both usurps the functions of the jury by fatally impairing the ability of the jurors to make "an effective and critical assessment" of the proposed evidence and impairs the defence's ability to make full answer and defence. In the result, it is the position of the defence that I should exercise my discretion and exclude the evidence on the basis that its potential benefits are overwhelmed by the risks of admission. [111] The Crown states as a general proposition that police expert evidence with respect to "gangs" and "drugs" has been readily and routinely accepted by the courts. In counsel's submission, the proposed evidence falls into this same general category of opinion. I agree with the Crown that such evidence has been widely accepted in the jurisprudence. In addition, as noted earlier, Mr. Lemieux has been accepted as an expert in a number of previous cases, including Violette, which was, like the present case, a jury trial. [112] However, it is clear that decisions with respect to the admissibility and scope of expert evidence must be addressed on a case-by-case basis. Decisions such as Sekhon; R. v. King, 2010 BCSC 1402; and R. v. Lee, 2003 BCSC 2050, underscore the need to address the question of admissibility in relation to the particular facts at issue and the purpose for which the evidence is sought to be adduced. Further, the

clear trend in the jurisprudence is one of increasing scrutiny with greater emphasis on the issue of admissibility at the gatekeeping stage of the analysis. [113] An additional consideration is that in many cases involving "gang evidence", the evidence is sought to be adduced to provide general context, evidence going to motive, assistance with respect to the meaning of slang and the like. However, in the present case as noted, the proposed evidence is directed to an essential element of one of the offences alleged. As noted earlier, special scrutiny is required where such evidence, as in the present case, approaches the ultimate issue, see Sekhon at para. 76 per LeBel J.

2. Two Components of the Opinion [114] In my view, the proposed evidence can be notionally divided into two components: the first being evidence with respect to the structure of the Hells Angels as an organization, the second being evidence with respect to the activities and purposes of the Hells Angels. (a) First Component - Hells Angels as an Organization [115] The evidence with respect to the Hells Angels as an organization is objective and concrete. It appears to be essentially uncontroversial. This component of the proposed evidence includes: the description of the formal structure of the club at the chapter, regional, national and international level, the structure of governance at each of those levels, meetings, voting, categories of membership, the written rules, the symbols used by the club as markers of identity, clubhouses and the items typically found in and at the clubhouses. [116] While this evidence is based upon a combination of Mr. Lemieux's personal experience and hearsay, I am satisfied that this evidence meets the standard of threshold reliability, and that the basis for the opinions expressed have been sufficiently disclosed to the defence. Moreover, this aspect of the opinion is, in my view, amenable to cross-examination where it is to some extent a matter of controversy; for example, the differences with respect to security features present in

clubhouses. [117] The evidence is not directed specifically to the essential elements of the definition of a criminal organization and so in that sense the probative value is not significant. However, given that the Hells Angels is, as noted earlier, a private organization whose structure and composition will not be known to members of the jury, the evidence is useful. On the costs side of the analysis, the risks associated with this component of the evidence are, in my view, slight. The prejudicial effect is low since, as Mr. Lemieux acknowledged, these aspects of the formal organization of the Hells Angels are to a large degree descriptive of virtually any organization with a formal structure. Thus on balance, in my view, this component of the proposed opinion evidence is admissible. In my view, given the circumstantial guarantees of trustworthiness, the hearsay component of this evidence is admissible through Mr. Lemieux for the truth. (b) Second Component - The Purposes and Activities of the Hells Angels [118] The second component of the proposed opinion is of a different character. It is this aspect of the proposed opinion that gives rise to the concerns identified by the defence. This evidence includes: the main purposes and activities of the Hells Angels Motorcycle Club, including that the club is engaged in a pattern of criminal activities, primarily but not

exclusively, drug trafficking, that the organization's main purpose is to facilitate the criminal activities of its members, the reputation of the Hells Angels organization in the "criminal milieu". This includes opinions with respect to the unwritten meaning or significance of the club's formal written rules, the unwritten purpose of the Big House Crew activities, the meaning of patches including the 1%er patch, the Filthy Few patch, the unwritten roles of the president and sergeant at arms, that sanctions for breaches of club rules can include murder, that prospects are introduced to criminal activity and can be ordered to commit crimes, that members use white boards and hand gestures to discuss criminal activities at meetings at the clubhouse, that the recruitment process is an aspect of the Hells Angels' involvement in criminal activity. (i) Should the Hearsay be admitted through Mr. Lemieux for the Truth? [119] I turn first to the concerns expressed with respect to reliance on hearsay. The Crown submits that the hearsay relied upon by Mr. Lemieux in support of his opinions should be treated as the sort of hearsay for which independent proof of the facts is not required. Counsel cites the discussion in R. v. Sheriffe, 2015 ONCA 880 [Sheriffe], concerning the expert evidence permitted in Abbey 2009 at paras. 109 and 110 as follows: [109] The expert in Abbey 2009 was a

sociologist. He was qualified as an expert in the culture of urban street gangs in Canada. Crown counsel proposed to have the expert give his opinion about the meaning of a teardrop tattoo within the urban street gang culture and to give his opinion on the meaning of Abbey's teardrop tattoo. The basis of the opinion included: (i) research projects conducted over ten years; (ii) a review of the relevant literature; (iii) information gained through a 25 year clinical practice involving long-term relationship with gang members in and out of custody; and (iv) detailed interviews with persons who lived in the gang culture. See Abbey 2009, at paras. 37-38. [110] Nothing in the decision in Abbey 2009 suggests that the expert gave evidence of the contents of anything said to the expert on interview or that any of those interviewed gave evidence at trial. [120] In Abbey 2009, the court noted at para. 121 that the study of cultural mores within particular communities or groups in a community is a well-recognized field of study within the broader academic and professional disciplines of sociology, criminology and anthropology and that Dr. Totten's expertise in this particular field was widely acknowledged. The research methods employed were described in detail and were found to fit within the methods accepted in the field. Those methods were described at paras. 37-46 as follows: [37] Dr.

Totten based his opinion as to the possible meanings of a teardrop tattoo on data gathered through several research projects conducted over ten years, information gained through a 25-year clinical practice involving long-term relationships with gang members both in and out of custody, and his review of the relevant academic literature. Dr. Totten's research consisted of six different studies conducted between 1995 and 2005. These studies explored the day-to-day lives of gang members through detailed interviews with those who lived in that culture. The manner in which gang members communicated, including various symbols used, was one of the many aspects of gang culture explored in these studies. Questions about tattoos were a small part of a much wider range of questions. The broad purpose of the studies was to understand the urban street-gang world from the perspective of those who lived in that world. [38] Each of the research studies involved long interview sessions with gang members who agreed to be interviewed by Dr. Totten and his fellow researchers. These interviews were recorded and the questioners took detailed notes. The accumulated data were examined and assessed by the researchers. Often, more than one researcher would examine the same data and their assessments would be compared. Dr. Totten used the information garnered from these interviews and assessments when

asked by the Crown to offer an opinion as to the meaning of the teardrop tattoo on the respondent's face. None of this information was gathered for the purpose of offering an opinion for the Crown in a criminal proceeding. [39] Dr. Totten described his research as qualitative and not quantitative. He explained that quantitative studies employ large sample sizes, attempt to explore the strength of association between variables and establish generalizations applicable to populations beyond the study sample. Qualitative research depends on information gleaned from individuals through a carefully constructed interview process. In research involving cultural habits, knowledge gained through many individual interviews with persons who live within a given culture permits the researcher to come to conclusions about the meaning that members of that group or culture attribute to certain conduct or symbols. [40] Dr. Totten indicated that in the fields of criminology, sociology and anthropology, there is a long-established tradition of excellent qualitative research into the culture and lifestyle of various groups, including street gangs. Dr. Totten referred to various well-recognized and accepted qualitative studies and reports on gang culture reaching back 80 years. Dr. Totten gave uncontradicted evidence to the effect that qualitative research techniques had been proven to yield

excellent and reliable data "on the fine details of gang life". In his assessment, quantitative studies based on statistical inferences could not provide the same insight into those "fine details". [41] Dr. Totten described at length the steps taken by him, and others in his field, to enhance the reliability of answers received from those interviewed during his studies. Several techniques were used to increase the reliability of the questioning process itself. Interviews followed a fixed and carefully formulated format. The language used in each question was selected using insight gained from the experience of prior studies and input from peer review of the proposed questions. Dr. Totten sought to remove anything from the questions that was suggestive of the answer, ambiguous or would not have a common meaning across a broad spectrum of interviewees. [42] Dr. Totten also explained that answers given by interviewees were not simply accepted at face value. Answers were checked against reliable independent sources such as criminal records and police reports, a process called triangulation. If information from these outside sources was inconsistent with the answers given, those answers were not accepted as accurate. [43] Dr. Totten described at length a technique known as investigative discourse analysis. Applying that technique, an examination of the actual language used by an

interviewee in his answers afforded insight into the veracity of those answers. Dr. Totten testified that this technique was well understood by him and other qualitative sociological researchers and that it had a long and well-established pedigree as a useful tool in his kind of research. [44] Dr. Totten also explained that several prospective subjects were excluded from his studies because there were reasons to doubt the reliability of any answers they might give. Gang members suffering from mental disorders or severe drug abuse were not asked to participate in the studies. Gang members who had been charged with a homicide related offence and who were awaiting trial were excluded from the study on the basis that their legal status gave them a motive to be less than honest about any criminal activity in which they had engaged. About 45 gang members were excluded from the studies. [45] Dr. Totten's six studies involved interviews with 300 gang members between the ages of 15 and 26. Roughly one-half were in custody. Ninety-seven of the gang members interviewed had been convicted of some form of homicide. Of that group, 71 had teardrop tattoos under one eye. Of the 203 not convicted of homicide, ten had teardrop tattoos under one eye. In total, 81 of the 300 gang members whose interviews were considered had a teardrop tattoo. All 71 gang members interviewed who had a teardrop

tattoo and had also been convicted of a homicide related offence indicated that the teardrop tattoo signified that they had killed a rival gang member. The ten gang members who had a teardrop tattoo but had not been convicted of a homicide related offence explained that the tattoo meant they had served time in a correctional institution. [46] Dr. Totten was questioned about the concept of peer review as it applied to his field of study. He acknowledged the importance of peer review in sociological research. Dr. Totten testified that in addition to the efforts made to carefully select those interviewed and to produce questions that yielded reliable answers, his studies underwent extensive peer reviews at several levels. In any given study, the questions he intended to use to collect data and his proposed methodology were peer reviewed before conducting the study. A post-study peer review occurred if any of the collected data were proposed for publication. Co-authors, where studies involved Dr. Totten and another author, served as a means of peer review after the studies were completed. Finally, those studies commissioned by a government ministry were subject to careful review by officials within the commissioning ministry. [121] The court noted further that: [121] There was no challenge to the manner in which Dr. Totten gathered the relevant data. By that I mean it was not

suggested that the information he looked to had not been accurately recorded and memorialized by those involved in the various studies. [122] Two other factors were identified by the court as important in the assessment of the reliability of the proposed evidence at paras. 124-126: [124] Two other factors not mentioned by the trial judge were potentially important to the reliability assessment. First, Dr. Totten drew his conclusions from data gathered in research studies that had no connection to this case. There was no chance that in gathering the relevant information, Dr. Totten sought, consciously or subconsciously, to lend his expertise to one side of the legal controversy. "Confirmation bias" was not an issue. It cannot be suggested that Dr. Totten set out to confirm an existing belief about the meaning of teardrop tattoos when he conducted his research. Dr. Totten's neutrality when he gathered the information he ultimately looked to to form the relevant opinion distinguishes his evidence from that of experts who are sought out to generate information for the purposes of litigation, or those who come to a case with firmly held preconceived notions that place the expert firmly on one side of the controversy. [125] Second, neither the methodology used by Dr. Totten nor his opinion concerning the teardrop tattoos were complex or difficult for the layperson to understand and

evaluate. I have no doubt that the methods Dr. Totten employed, the data those methods produced and his opinion based on those data could be critically evaluated and independently assessed by a jury. This was not rocket science. [126] I am satisfied that the factors outlined above, taken in combination, offer a firm basis upon which a trial judge could conclude that Dr. Totten's opinion, that the inscription of a teardrop tattoo on the face of a young male gang member carried one of three possible meanings within the urban gang culture, was sufficiently reliable to justify its admission. [123] In my view, the contrast with the circumstances of Mr. Lemieux's approach is stark. First, in my view, it is clear that confirmation bias is very much an issue in relation to Mr. Lemieux's evidence and approach. He testified that he had heard of outlaw biker gangs prior to ever having done police work involving direct experience with such groups. (December 2, 2015, pg. 7 Ln. 14-27) He started his direct involvement with the concept of the outlaw motorcycle gang already in mind. [124] When asked what reliance he placed upon books that he had read on the subject, he replied that he relied upon those portions that were consistent with what he had learned over the years; see for example, December 10, 2015, pg. 30-32. He had the same response when asked about reliance on informants: Q So

expressing the opinion that you do in this courtroom, are you in part relying upon these conversations you had with Anthony Tait? A The best way to answer that is, it is one of the informations that confirms the knowledge that I have gathered over the years regarding the Hells Angels. (December 10, 2015, pg. 42 Ln. 16-23) [125] This suggests confirmation bias. There is an additional problem, which is that these agents and informants are not sources that have the indicia of trustworthiness discussed in the jurisprudence. In that regard, I note that when Mr. Tait testified in R. v. McCurrach, 2000 ABPC 127 [McCurrach], Judge Fradsham rejected his evidence, finding him totally unreliable as a witness, see para.

223. I make reference to this not as a finding of fact with respect to Mr. Tait's credibility, but as an illustration of the potential danger, adverted to in the jurisprudence, of admitting evidence for its truth from such a source through the conduit of an expert opinion. [126] As noted above, Mr. Lemieux relied upon certain statements found in books and articles. However, there was nothing systematic about his selection of these sources. He did not consult the academic literature. There is no suggestion that his sources were authoritative. He acknowledged that many of them were sensationalized to an extent and were written with a profit motive. [127] Mr. Lemieux also relied upon information traded among law enforcement agencies, and provided at law enforcement workshops. Mr. Lemieux testified that when he was functioning in his CISC role, he would make efforts to confirm information received from other law enforcement agencies before he disseminated it. However, with limited exceptions, for example, in the approach that he took to confirming information about members of Hells Angels, he did not describe in any detail what he did to confirm the information, see December 10, 2015, pg.

25. In particular, he did not describe his approach to confirmation in relation to matters which fall within this second component of his opinion. In addition, as Mr. Giles notes, we know nothing about the selection process for the information. [128] In McCurrach, Judge Fradsham had the benefit of evidence with respect to some content of materials shared by law enforcement at such workshops. He found that certain pieces of information relied upon and communicated in lectures and teaching by police intelligence officers were wrong and misleading, see para.

200. Fradsham J. found the erroneous information passed on by other information officers to be part of a pattern within the intelligence community to colour and slant the recitation of events and information "so that the Hell's Angels are always put in a bad light", see footnote 231. [129] Again, I make no such finding in the present case because this Court does not have the benefit of evidence of the sort adduced in McCurrach. However, the observations in that case do serve as a cautionary note with respect to reaching a conclusion that such sources have the requisite circumstantial guarantees of trustworthiness. [130] As noted above, an important aspect of the circumstantial guarantees of trustworthiness relied upon in relation to Dr. Totten's work in Abbey 2009 was that the information upon which the opinion was based had been "accurately recorded and memorialized". In the present case, Mr. Lemieux stated that he did not make or keep any notes of his interviews with agents, informants and ex-Hells Angels. Thus, the information is not recorded or memorialized at all. He did not keep copies of documents received from other law enforcement agencies in relation to this opinion. As noted in McCurrach at footnote 232, "[t]he opportunity for distortion seems self-evident." It follows that there can be no assurance that "the information has been accurately recorded and

memorialized". Where it has been recorded - such as information contained in transcripts and texts that have been identified, the particular material that Mr. Lemieux relies upon has not been identified. [131] An illustration of one manifestation of this difficulty is found in his testimony in cross-examination from December 14: Q -- years of experience and ‑‑ and everything, so I ‑‑ I take that as given. Part of that is your reliance on disgruntled members, former members, of the Hells Angels Motorcycle Club, correct? A Some of them, yes. Q All right. And it is just a part of it, I'm not ‑‑ A That is correct. Q I am not suggesting anything else. As I say I take it as given that there is a totality of experience. A Yes, I agree. Q Okay. And you testified that you utilized that information, that particular part of your ‑‑ of your experience to buttress your opinion, yes? A It's consistent with my opinion. Q Right. And so was there ever information that you received from Mr. Trudeau, for example, that was inconsistent with your opinion? A And again I ‑‑ I can't recall, because you have to remember Mr. Trudeau I read his things in the 1990s, the early '90s, so... Q You never went back and reread it? A No, because I can't find it. (December 14, 2015, pg. 62 Ln. 10-33) [132] The Crown submits that Mr. Lemieux is not a social scientist and his opinion should be judged against the methods and standards of police evidence, not that of social science. I agree. It is clear from Abbey 2009 that when assessing reliability, it is an error to apply factors that are not appropriate to the nature of the opinion, see para.

118. Moreover, I agree that in appropriate circumstances, expert opinion evidence from a police expert witness could be found to present sufficient guarantees of trustworthiness to warrant treatment in the same manner as the evidence of Dr. Totten. [133] However, it is also clear that the court must address the threshold reliability of the proposed opinion. I note, in addition, that in several cases in which such evidence has been considered by the court, the expert offered much more detailed evidence concerning the processes used by the police to confirm and test information; see for example, Sappleton and Gager. Mr. Lemieux provided no equivalent details. [134] The issue of reliance on hearsay in the context of police expert evidence dealing with an issue related to gangs or criminal organizations has been directly addressed in a number of cases in Canada, some of them involving the evidence of Mr. Lemieux: (a) In Lindsay, a case involving the proposed evidence of Mr. Lemieux, Fuerst J. held that the opinion based in part on hearsay was admissible, but with the following qualifications stated at paras. 22 and 25: [22] Before any weight can be given to an expert opinion based on hearsay, the facts on which the opinion is based must be proven by admissible evidence. [25] To the extent that any opinion he gives about the Hells Angels in Ontario is based on hearsay information,

or is lacking in firsthand experience, or exposes deficiencies in his expertise, these matters go to weight. (b) Mr. Justice Romilly adopted the same approach in Violette, another case involving the evidence of Mr. Lemieux; that is, that the hearsay was admissible through Mr. Lemieux to show the basis upon which the opinion was based but not for the truth and that the reliance upon hearsay went to the weight to be given to the evidence. (c) Madam Justice Greckol followed Violette in Alcantara at para. 125. (d) In Sandham, Heeney J. found that evidence obtained from confidential informants without other confirming evidence lacked circumstantial guarantees of trustworthiness. An opinion that was based solely upon such evidence was found to be inadmissible. (e) In Sheriffe, one of the issues on appeal was the repetition to the jury of what two confidential informants told him about the accused's gang affiliation, by the expert qualified to give opinion evidence about street gangs and their characteristics. The defence's concern was reproduced at para. 93 of the judgment: [93] Sheriffe complains that, by permitting an expert to repeat a confidential informant's statement about Sheriffe's gang membership, the trial judge allowed the jury to hear evidence from a person immune from cross-examination through a person cloaked with expertise, thereby enhancing the evidence's value in the

collective mind of the jury. The effect of the ruling was that the expert ceased to give evidence as an expert and became a mere conduit, a witness of fact whose testimony consisted of inadmissible hearsay. The court confirmed at para. 102 that the rule against hearsay could be an example of an exclusionary rule that would be engaged under this aspect of the Mohan test. The court held at para. 104: [104] It is well established that expert opinion evidence may be founded, in whole or in part, on the basis of statements made to the expert by others. For example, a psychiatric opinion about criminal responsibility is frequently based, at least in part, on what an accused told the expert about relevant events. But in order for the out-of-court account to be admitted as evidence of the truth of what was said, that account must be established by admissible evidence: R. v. Abbey, [1982] 2 S.C.R. 24, at p. 46 (Abbey 1982). See also: R. c. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 31; R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para.

55. The court rejected this ground of appeal noting that the trial judge had recognized that the information provided was hearsay and had conducted a hearing to determine whether it could be admitted under a listed or principled exception, had properly applied the principled exception to the statements and had correctly instructed the jury about how they were to assess the weight, if any, to be given to the statements and the opinion. (f) In Gager at para. 221, Justice Clark concluded that much of the proposed expert's testimony was, in fact, not strictly speaking, opinion but general factual information. He permitted the expert to testify and to rely upon hearsay in doing so in relation to these "factual" matters which were: [221] For greater certainty, then, Backus may testify, and in so doing may rely on hearsay, concerning the following matters: (i) the phenomenon of the street gang; (ii) the structure and organization of gangs generally, including the affiliation of many local gangs to the overarching Bloodz and Cripz organizations; (iii) the symbols and graffiti commonly used by gangs; (iv) the concept of a street gang having a core territory; (v) the use of graffiti by gangs to denote their territory; (vi) the proposition that, for fear of reprisal, a gang member would not likely enter the territory of a rival gang absent a compelling reason to do so; (vii) typical gang

responses to perceived infringement of territoriality; and (viii) the existence of such gangs in Toronto. Justice Clark treated the balance of the proposed evidence of the expert as opinion proper. This included: the existence of the Doomztown Cripz and Driftwood Cripz as gangs, opinions concerning gang membership of different individuals, and whether there was a gang war between Doomztown and Driftwood. With respect to this aspect of the proposed evidence, Justice Clark treated the hearsay relied upon by the expert as at best, admissible to show the basis of the opinion. [135] In the result, I conclude that with respect to the second component of the proposed opinion, the hearsay sources relied upon by Mr. Lemieux in the formation of his opinion do not fall into the category of sources within his field for which there is no necessity for independent proof. In other words, the hearsay sources are not admissible for the truth through Mr. Lemieux. [136] I find that sufficient circumstantial guarantees of trustworthiness are not evident. There is simply not the evidence of systematic, balanced accumulation of knowledge with safeguards in place for the evaluation of the reliability of the sources of information to warrant such treatment. With respect to the informant, agent and ex-member sources, the information provided has not been recorded so we do not know what information they

provided, in response to what questions, and in what circumstances. We do not know how many such sources there are or how many of them repeated key assertions relied upon by Mr. Lemieux. There is no suggestion of any protocol by which the reliability of the information provided was assessed. [137] We do not know what information that was shared by other law enforcement agencies was relied upon. We do not know how this information was gathered, or by what process it was checked for reliability. The books and articles consulted were not part of any systematic course of study and, with the one exception, there is no record of what, in particular, Mr. Lemieux derived from these works. These deficiencies are compounded, as I will discuss later, by a failure to specify the facts upon which the opinions are based. (ii) Hearsay as the Basis of the Opinion [138] The next matter to be considered in relation to this second component of the proposed evidence is whether the hearsay is admissible through Mr. Lemieux as evidence of the basis of his opinion. The Crown submits that the hearsay is admissible through Mr. Lemieux for this purpose. The Crown submits further that any concerns with respect to the hearsay sources can be addressed through a limiting instruction to the jury that the hearsay referred to in the opinion is not admitted for its truth, but to show the basis for the opinion

and that the weight to be given to the opinion is reduced to the extent to which such information is not proven at trial. [139] The positon of the defence is that the hearsay is not admissible for that purpose through Mr. Lemieux because for the most part, the sources or facts upon which the opinion is based have not been disclosed to the defence. A related objection applies to both the hearsay and non-hearsay portions of the opinion; namely that Mr. Lemieux has failed to state the facts upon which his opinion is based. In addition, the defence contends that to the extent to which the various opinions offered rest solely upon such hearsay, the opinion has no weight and should not be admitted. [140] It is a useful starting place to summarize what Mr. Lemieux had to say about the sources of his opinion during his evidence in chief: (a) those who wear the 1%er badge do not abide by the law. The source stated was documentation, sources I don't recall, information from law enforcement, conversation with ex-Hells Angels; (December 4, 2015, pg. 8 and December 7, 2015, pg. 11) (b) reason for the Hells Angels to expand into new areas. The source stated was a book written by George Wethern, a former member of the Oakland chapter of the Hells Angels, and conversation with liaison officers; (December 4, 2015, pg. 10 Ln. 33-47, pg. 11) (c) criminal records of members of Hells Angels - the

source was printouts from the CPIC record system; (December 4, 2015, pg. 13) (d) the purposes of the BHC newsletter - no source stated; (December 4, 2015, pg. 14) (e) the reputation of the Hells Angels in the criminal milieu and the significance of this reputation. This is referred to a number of times in the evidence in chief, including December 4, 2015, pg. 24, 36, 46 and December 7, 2015, pg. 12, 13, 27. The source is stated to be conversation with several informants; (December 4, 2015, pg. 24 Ln. 17-18) (f) the president will intervene in the criminal activities of members in certain instances - no source stated; (December 4, 2015, pg. 25) (g) sanctions for breaches of rules can include murder (December 4, 2015, pg. 26) - no source stated; (h) the role of the sergeant at arms is to administer discipline, will administer beatings at the direction of the president, and will organize the club's arsenal - no source stated; (December 4, 2015, pg. 26) (i) prospects, if not already involved in criminal activity, are introduced to criminal activity - no source stated; (December 4, 2015, pg. 31) (j) the purpose of distributing pictures among chapters being to preserve the reputation of the Hells Angels - no source stated; (December 4, 2015, pg. 36) (k) prospects can be ordered to commit crimes as a way of testing their loyalty - no source stated; (December 4, 2015, pg. 41, 44 and

51) (l) the members use white boards and hand gestures to discuss criminal activities at meetings in the clubhouse - source information from agents and ex-members; (December 4, 2015, pg. 48) (m) significance of the recruitment process - source: Q And so in light of what you've now described, is it your opinion that the recruitment process is a part of your opinion as to why the Hells Angels are involved in criminal activity or why one of the activities the Hells Angels are involved in is criminal activity? A It is my opinion that it is one of the reasons why they were -- request members to do such. Again, my opinion is based on personal investigations that I have done, on physical surveillance that I have done, on wiretap evidence that I have listened to, on individuals who I've talked to, informants who were, although not part of the Hells Angels organization, dealt directly with members of the Hells Angels, agents that were associated with the Hells Angels and would buy drugs off of these individuals. I was privy to their debriefings and which also contributed to my opinion. There are also ex-members of the Hells Angels who have confirmed the information within my opinion. (December 4, 2015, pg. 52 Ln. 12-42) (n) reasons for the rule against addiction among members - source ex-members; (December 4, 2015, pg. 56) (o) opinion regarding the significance of the rules - source: Q

And I've asked you about the significance and your interpretation that you've given us your interpretation of the importance of the rule in the Hells Angels organization. And I'm just going to ask you now what is the source of your knowledge about the importance of these rules and what they mean within the Hells Angels organization? A The source for my information comes from again talking with ex-members of the Hells Angels, physical surveillance that I have done regarding members with the tattoos, with the different -- the dates dated out, talking to individual informants, who were, as I mentioned, not part of the Hells Angels organization but were associating with these individuals, and were able to give me some of the significance of these rules. It was also through electronic listening where I heard conversations about certain patches and so forth, certain rules where it was mentioned that to make sure that this individual date was on. Also, again, as I mentioned, general knowledge that I have acquired over the years during my investigations. Also from documentation that I received while I was with Criminal Intelligence Service Canada, as I mentioned earlier we would receive thousands of documents yearly regarding the Hells Angels, documents that had been seized in different areas of the country and again, that contributed to the knowledge that I have acquired over the

years. (December 4, 2015, pg. 60 Ln. 41-47 pg. 61 Ln. 1-25) (p) meaning of various patches - source conversation with ex-members and informants; (December 7, 2015, pg. 10) (q) puppet clubs will conduct their business following the permission of the Hells Angels; reasons for puppet clubs is to give Hells Angels the benefit of a portion of the proceeds of their criminal activities - no source; (December 7, 2015, pg. 20) (r) Hells Angels and its members are involved in criminal activity - source: Q Have you formed an opinion as to whether the Hells Angels and its members are involved in criminal activity? A It is my opinion that they are involved in criminal activity, yes. Q Okay, and what kinds of criminal activity, in your opinion, are they involved in? A Over the years, during my investigative years and also through information received from law enforcement agencies across Canada and United States and so forth, the Hells Angels are involved in any criminal activity that will profit themselves or the organization. They will be involved, as I mentioned, in any criminal activity. However, it is my opinion that one of their main criminal activities is drug trafficking at several levels. (December 7, 2015, pg. 22 Ln. 1-16) (s) Mr. Lemieux lists several prosecutions involving Hells Angels members and states that these contributed to his opinion without providing any further detail

about how these investigations contributed to the opinion; (December 7, 2015, pg. 22-25) (t) how criminal activities are carried out at the chapter level - no source stated; (December 7, 2015, pg. 25 and 26) (u) the president will likely be aware of the criminal activities of members - no source stated; (December 7, 2015, pg. 27) (v) what concerns arise for the Hells Angels organization when a member fails to live up to his business commitments in the context of a drug negotiation - no source; (December 7, 2015, pg. 28) (w) whether one of the main purposes or activities of the Hells Angels includes the commission or facilitation of criminal activity and does that benefit the Hells Angels organization or the members - no source stated. (December 7, 2015, pg. 29) [141] Thus, with the exception of the reference to the book written by Mr. Wethern, in examination-in-chief in relation to the second component of the opinions, Mr. Lemieux either does not state any source, or facts upon which he bases the opinion, states a source which has not been provided to the defence through production of documents, notes or summaries, or states what I will describe as an "omnibus source"; essentially that the source of the opinion encompasses the activities and experiences of Mr. Lemieux's career. As noted above, in some cases Mr. Lemieux has relied upon review of transcripts which have been

disclosed but he does not state what, in particular, he relies upon as a basis for his opinion in these transcripts. [142] I agree with the Crown that the portion of Mr. Wethern's text relied upon by Mr. Lemieux is admissible through Mr. Lemieux as evidence of the basis of his opinion and that limiting instructions to the jury would be sufficient to address hearsay concerns with respect to that evidence. [143] However, with respect to the balance of the hearsay sources, as noted in earlier sections, the defence has been provided with very little of the material relied upon by Mr. Lemieux in support of his opinion. There are no notes or summaries prepared of the interviews with agents, informants and ex-Hells Angels. The CPIC reports prepared for CISC and relied upon by Mr. Lemieux were not produced. There is no record of information provided by other law enforcement agencies. [144] I agree with the observations cited above in Sappleton and Gager with respect to the impact on the ability to make full answer and defence. It is hard to see how the defence can be said to have a meaningful opportunity to challenge the evidence in circumstances in which the expert makes extensive reliance upon interviews, the contents of which are neither recorded nor summarized. I note, as cited earlier, the court concluded in Sappleton that "[w]here there are constitutional or other legal

principles that preclude the admissibility of some or all of that information, it is not admissible, even for the limited purpose of proving the foundation of the opinion." It follows that where the Crown attempts to rely upon hearsay where there has been no production of the information relied upon to the defence, the hearsay is not admissible even as evidence of the basis of the opinion. [145] The Crown's answer is that there is nothing to produce to the defence because Mr. Lemieux did not make notes and did not retain copies of documents. In my view, the expert's duty to provide the materials relied upon to the other side cannot be circumvented in this fashion. In other words, there is at least a duty to retain such materials. In any event, the issue is whether the absence of such material impairs the defence's ability to make full answer and defence. In my view, in the circumstances of the present case, the absence of such material does amount to such an impairment engaging the right of the accused to a fair trial. [146] In addition, in my view, the absence of notes creates a concern with respect to the reliability of the evidence. Ultimate reliability of the evidence is, of course, a matter for the jury, but reliability is a matter to be addressed by the court at this stage as part of the gatekeeping function. (iii) Failure to State the Facts upon which the Opinion is

Based [147] The final grouping contains the opinions for which no source or factual basis is stated or where the source stated is what I have characterized as the omnibus source. In my view, the failure to state any source or factual basis for an opinion is a clear breach of the duty of the expert. In addition, it is my view that what I have described as the omnibus statement of source is equally a breach of this duty. It substitutes what is essentially a summary description of the source of Mr. Lemieux's expertise with a statement of the facts and assumptions upon which his opinion is based. However, while the description of the basis of the witness's expertise is an important component of expert opinion evidence, it is not a substitute for the statement of the factual basis of the opinion. [148] This issue relates both to the hearsay and non-hearsay aspects of the opinion. Mr. Lemieux is, of course, entitled to base his opinion on facts observed from his own experience; for example, what he has observed when conducting physical surveillance. However, in my view it is incumbent upon the expert to state not only the general source of the facts relied upon, but what those facts are. It is not sufficient for Mr. Lemieux to state that he conducted thousands of hours of physical surveillance. That statement is a statement describing the basis of his expertise. It is not a statement

of a fact upon which he bases his opinion. It is an essential aspect of the duty of the expert to state those facts. He must identify, for example, what behaviour observed during this surveillance is relied upon as a basis of his opinion. [149] In fact, Mr. Lemieux did state what he observed in relation to the opinions expressed in what I have described as the first component of his opinion. As is evident from the summary noted above, he made no such statement in relation to this second component. [150] The same requirements are present with respect to the hearsay relied upon by Mr. Lemieux. It is not sufficient for Mr. Lemieux to state that he read a particular book, conducted an interview, reviewed a document, or conversed with another law enforcement agent and found that some or all of what was provided was consistent with or confirming of his opinion. He must identify what it is that he has taken from these sources and relied upon. [151] The failure to state with sufficient particularity, the facts relied upon, has implications with respect to the ability of the jury to discharge its role, the ability of the defence to make full answer and defence, and the conduct of the cost benefit analysis of the opinion at this stage in the process. [152] Dealing first with the issue of the proper functioning of the jury, in my view both the failure to state the facts upon which an

opinion is based and the general and conclusory omnibus statements of the source of an opinion usurp the fact-finding role of the jury. Going back to basic principles, it is for the jury to find the facts. Where Mr. Lemieux has failed to state the sources or facts relied upon, or has stated the sources at such a level of generality, he has deprived the jury of the ability to discharge its proper role. Put at its most simple level, the jury will be unable to determine if the facts upon which the opinion is based have been established because those facts have not been identified. [153] With respect to the Crown's submission that any concerns related to hearsay can be addressed with a limiting instruction to the jury, I note that in relation to the omnibus statements of source, Mr. Lemieux does not specify what particular hearsay is being relied upon, by whom, and for what purpose. In such a circumstance, there is nothing upon which to ground an instruction to the jury. In particular, that portion of the opinion relating to the purposes and activities of the Hells Angels and whether these include the facilitation or commission of serious offences, does not lend itself to such limiting instructions. As noted by Mr. Giles, with limited exceptions, Mr. Lemieux does not set out specific facts upon which his opinion is based, but rather states in a conclusory fashion that all that he

has reviewed confirmed his opinion. As counsel states "The Crown's proposed expert witness opinion is essentially a conclusion stacked upon other conclusions, all in support of a pre-existing opinion." [154] The Crown submits that, at least with respect to some of the sources of the opinion such as texts and transcripts reviewed and relied upon by Mr. Lemieux, the facts can be teased out through cross-examination. That is only possible with respect to some of the sources, but in any event, in my view, that submission fails to grapple with the fundamental duty of the expert. It is for Mr. Lemieux at first instance to set out the facts upon which he relies. [155] Mr. Lemieux confirmed in cross-examination that it will not be possible in evaluating his opinion to identify particular sources or pieces of information: Q And ‑‑ and it is from what ‑‑ those experiences that ‑‑ that you have developed your opinion? A Some of it, yes; not just that specific thing, but it is, yes, part of it. Q What else do you ‑‑ what do you ‑‑ what am I missing? A Well, I also use my experience ‑‑ firsthand knowledge that I acquired over the years as a police officer investigating the Hells Angels organization, which demonstrated what the organization was all about, which consists of electronic and physical surveillance. I also based my opinion on and I also use the reports that I receive ‑‑ thousands

of reports that I have received from other law enforcement agencies all across Canada and elsewhere in the world. I also use information that I have gotten from ex-members of the Hells Angels, source debriefings and inform ‑‑ informant information. So over the years that is what I base my opinion on, the information that I received from all of these sources. Q Sure, but ‑‑ but I understand that, but to the extent that you learned a particular piece of information from a particular discussion, we are never going to be able to figure that out, right? A That is correct, yes. Q All right. So your conclusions are drawn from these previous experiences that you have had, discussions, reports you have read, talking to ex-members? A That is correct, yes. Q But we don't have ‑‑ I think you said before you didn't keep any briefing notes of discussions with ex-members, we don't ‑‑ we ‑‑ we can't get those, right? A No. That is correct, yes. Q And there is no ‑‑ as you were having these discussions and reading these reports, you never boiled that down into summaries or reports for your own use, right? A No. That is correct, yes. (December 8, 2015, pg. 6 Ln. 21-47, pg. 7 Ln. 1-16) [156] Mr. Lemieux repeated what I have characterized as the omnibus statement of source several times in the course of cross-examination. For example: (a) Q And what you did, though, was when you ‑‑ when you got to

the category of criminal activities you stated: The Hells Angels are involved in a large number of criminal activities. I'm guessing that comes from the ‑‑ those three reviews of CPIC that you have reviewed? A That is one ‑‑ how could I say ‑‑ one asset or one area that I do use to formulate my opinion. However, it is not the only one. I have used as I mentioned earlier also that it is through investigations that I have conducted on the Hells Angels organization, thousands of reports that I gathered over the years on Hells Angels across this country, talking to other Hells Angels ‑‑ ex-members of the Hells Angels, agents and informants, who have assisted me in formulating my opinion, so therefore it is not just the three studies that CISC had done. Q Got it. Okay. Fair enough. I understand that. I am not ignoring that. I ‑‑ I do get ‑‑ A Okay. Q -- your point that ‑‑ A But I am just trying to ‑‑ Q -- you have had 25 years ‑‑ A -- make sure that you understand that I ‑‑ my opinion is not on only one specific element, it is on a myriad of facts that I have gathered over the years. (December 9, 2015, pg. 37 Ln. 19-47 pg. 38 Ln. 1-19) (b) Q So again, my -- when we talk about a pattern of criminal activity, really aren't we just talking about the members who happen to wear -- who -- they're members. The members commit offences and it's the fact of membership, the fact of membership

to the Hells Angels motorcycle club that facilitates -- that assists them in whatever they're going to do? A Because of the reputation that that organization has gathered over the years. And as I mentioned, I have seen documentation. I have received documentation right across this country, stating that in -- it is individual members are involved in criminal activity at different levels; therefore, it is my opinion that seeing that they're involved in criminal activity right across this country, that they have a pattern of being involved in that. THE COURT: Sorry, could you say that again, please? A Is that by receiving thousands of reports across this country from law enforcement agencies investigating the Hells Angels, which these investigations demonstrated that members of the club are involved in criminal activity and several members have been found guilty of participating in criminal activity, investigations that I have conducted over the years, talking to ex-members of the Hells Angels, talking to sources and other agents have demonstrated and have assisted me in formulating the opinion that members within the Hells Angels organization are involved in criminal activity and that in order to be able to conduct that criminal activity, it is facilitated by the organization's reputation. (December 9, 2015, pg. 47 Ln. 10-47) [157] The Crown has argued, using the analogy of a

doctor, that Mr. Lemieux's opinion is based upon the totality of his professional experience, encompassing all of his training, his personal observations, conversations with informants and colleagues, review of documents, and reading and study that he has undertaken. Counsel submits that it would be impossible to specify and enumerate all such sources, yet each contributes to the opinion. I agree that all of the experiences of Mr. Lemieux's professional life have contributed to the opinions that he expresses. Moreover, the totality of that experience is the basis for the finding that Mr. Lemieux is qualified to give opinion evidence. [158] However, the totality of that experience, what I have termed Mr. Lemieux's expertise, is not to be confused with the facts upon which his opinion is based. Going back to first principles, as noted above, an opinion is an inference, deduction, impression, or conclusion drawn from an observed fact or facts. Those facts upon which the opinion is based are matters to be proved at trial. Those facts are the province of the trier of fact. [159] Mr. Lemieux has given the opinion that the Hells Angels Motorcycle Club is involved in criminal activity. It is his opinion that "the Hells Angels are involved in any criminal activity that will profit themselves or the organization. They will be involved, as I mentioned, in any criminal activity. However,

it is my opinion that one of their main criminal activities is drug trafficking at several levels." [160] I have found Mr. Lemieux to be qualified to give that opinion on the basis of his expertise. That opinion is an inference, deduction, impression or conclusion drawn from certain facts. That Mr. Lemieux is an officer with extensive experience in this area is not a fact which tends to prove that the Hells Angels organization is involved in criminal activity. Mr. Lemieux has not stated the facts upon which that opinion is based; he has instead re-stated his expertise. In my view this amounts to a fundamental flaw in the opinion. (iv) Analysis [161] Gager provides a most instructive illustration of the analysis of the components of a proposed opinion at the second stage of the inquiry, addressing concerns about hearsay, disclosure, and threshold reliability. In that case, the Crown was proposing to qualify a police officer to express opinions concerning a number of issues, including an opinion that a gang war existed at the material time between two groups: the Doomztown and the Driftwood. The officer had identified the following bases of the opinion concerning the gang war: (a) Expressions used in letters written by one of the accused. This was found to be mere speculation at para. 251: [251] Backus cannot say that he has ever seen another letter written in similar terms,

where the existence of such a conflict was supported by other objective evidence of hostilities between two rival gangs. Absent, then, some articulable basis in his experience upon which he could reasonably predicate his opinion that the letters bespeak the existence of a gang war, I am of the view that, to the extent it relies on the content of the letters, his opinion is mere speculation. (b) CI Information - This had not been disclosed to the defence. The court followed Sappleton and held that the expert could not rely upon it. (c) Intercepted private communications - reference was made to 6 out of more than 18,000 intercepts. Justice Clark concluded that the calls were innocuous, stating at para. 254: [254] Backus said in his evidence in this hearing that he listened to somewhere between 15,000 to 18,000 intercepts on Kryptic alone. Although he did not mention a figure on this hearing, I suspect that Backus must have listened to something like the same number of calls in relation to XXX, as well. Of that total, the approximately six calls to which he referred related, according to his evidence on this hearing, not to a gang war as such, but, rather, to gang rivalry, and each was, presumably, so unremarkable that it did not occur to him to mention them at the preliminary inquiry. Against that backdrop, I have some difficulty understanding how six more or less innocuous calls

could cause him to now hold the opinion that there was a gang war extant at the time of the shooting in 2008. I say "innocuous" because, when asked about these calls on this voir dire, Backus gave no indication of what was said that caused him to conclude that they reflected even rivalry between the gangs, much less a gang war. (d) Occurrence reports - the expert also relied upon certain police occurrence reports. The Crown sought to have the court accept the reports as reliable hearsay. This proposal was rejected. Clark J. noted that no proper foundation had been established to admit the reports as business records. They did not qualify for admission at common law and did not meet the standard of threshold reliability. Justice Clark noted at para. 258: [258] Given the importance of these records to both the issue of motive and the issue of planning and deliberation, it is vital to the fair trial interests of the accused that defence counsel have a meaningful opportunity to challenge this evidence, which admitting the reports for their truth through Backus would not provide. The court considered, in the alternative, that the Crown might call witnesses who could attest to the information contained in the occurrence reports. However, although the reports themselves had been disclosed, none of the underlying documents had been disclosed to the defence. Clark J. noted at para.

259: [259] That said, if it were the Crown's intention to call the witnesses having firsthand knowledge of the events described in the reports, it ought to have made full disclosure of the material underlying the reports long before now. Justice Clark noted further that the proof of the incidents would complicate the trial and the probative value of the evidence was tenuous at best. In the result, Clark J. concluded that evidence concerning the incidents referred to in the occurrence reports was not admissible, either through the reports or through the testimony of firsthand witnesses. (e) The Crown sought to have the expert advance his opinion based in part upon the reports, relying on Lavallee. However, the court, citing Abbey 1982, noted that an opinion is only entitled to weight to the extent to which its factual underpinnings have been established in the evidence. [162] In the result, the expert was not permitted to give the opinion with respect to the existence of a gang war. Justice Clark summarized the ruling at para. 266 as follows: [266] In summary, Backus' opinion concerning the existence of a gang war represents, with respect, the antithesis of the "evidence based approach" recommended by Commissioner Goudge, later endorsed by the Court of Appeal in Abbey. In saying that, I recognize that "[t]he integrity of the trial process requires that the trial judge not overstep [the gatekeeper] function and encroach on the jury's function": Abbey, para.

142. However, the opinion is so lacking in foundation that the jury is apt to accord it far more weight than it can reasonably support by virtue of "the understandable assumption that a person labelled as an expert by the trial judge knows more about his ... area of expertise than do the individual members of the jury": Abbey, para.

90. Given the obvious importance of this issue to the Crown's ability to prove not just murder, but first degree murder, Backus' opinion in this behalf is, with respect, "not worthy of being heard": Abbey, para.

89. It is, therefore, inadmissible. [163] At this stage in the analysis in assessing the "benefit" side of the analysis, the court must consider the reliability of the evidence, the methodology used by the expert and the expertise, independence and objectivity of the expert, see Abbey 2009 at para.

87. In my view, an integral part of this analysis is the consideration of the facts upon which the opinion is based, as exemplified in the approach taken in Gager. [164] Mr. Lemieux is entitled to base his opinion on his personal experience. However, with respect to this component of the opinion, while he has repeatedly referred to his extensive expertise, he has failed to state any facts arising from his experience upon which he relies as a basis for his opinion. [165] With respect to the hearsay sources, as noted above, I have concluded, with respect to this component of the opinion, that there are not sufficient circumstantial guarantees of trustworthiness to warrant acceptance of the hearsay sources, for the truth, from Mr. Lemieux. Thus such sources are admissible, if at all, to show the basis for his opinion, but given the absence of production, not admissible even for that limited purpose. [166] In any event, quite apart from the issue of production of the materials relied upon by Mr. Lemieux, one must question what could be the probative value of those opinions based solely on the hearsay sources. [167] The balance of the opinion is based upon sources which are either not stated at all or stated as the sum of his expertise but with a complete absence of specificity. As noted above, in my view, this is a breach of the expert's duty. [168] The court in Cluse contrasted

opinion "founded on the study of systematically collected and validated data confirmed from a variety of sources" with an expert recounting "the details of specific incidents which he has learned from other sources", the former being appropriately received as expert opinion. In the present case, with respect to this second component of Mr. Lemieux's proposed opinion, I am left with significant concern with respect to the number of sources, the method of collection and the absence of validation. [169] I have concerns that the proposed evidence is, in fact, more similar to what was described in Myers as "simple, and not necessarily balanced, anecdotal evidence" assuming the role of expertise. Given the difficulties elaborated above with respect to this second component of the opinion, I am not satisfied that on the benefit side, the reliability is such that the "evidence is worthy of being heard." [170] There are as well concerns with respect to the methods, independence and objectivity of Mr. Lemieux. As I have noted earlier, his approach with respect to sources he consulted was to rely upon that which "confirmed" or agreed with his pre-existing opinion. He referred to no facts contrary to his opinion. His evidence was that he knew of none; that for example, no member of law enforcement had ever given him information contrary to his opinion. He acknowledged in cross-examination

that he was aware of contrary opinion but stated that he did not know the basis of those opinions, nor had he taken any steps to find out. [171] The Crown submits that there is no duty to report competing theories, only contrary facts, and Mr. Lemieux is aware of none. That may be, but it does tell us that this will not be a "balanced" account. That is of concern given that Mr. Lemieux is the conduit for these facts given the absence of notes. We are at the mercy of his filtering system, his recollection and his assessment. [172] With respect to the "cost" side of the equation, given the concerns identified above, in my view it is clear that there is a very significant risk that the jury would be unable to make an effective and critical assessment of this evidence. How could the jury make such an assessment where the facts upon which critical components of the opinion are based are not stated. The evidence is prejudicial and goes to an essential element of the offence. Given the absence of production of materials relied upon by Mr. Lemieux, the ability of the defence to make full answer and defence has been impaired. [173] In my view, this is a circumstance in which the concerns about the reliability, methodology and objectivity of the proposed evidence suggest very low probative value. The risks to the integrity of the trial process are very high. I have concluded that Mr.

Lemieux will not be permitted to give the evidence which I have characterized as the second component of his opinion. V Disposition [174] I have concluded that Mr. Lemieux will be permitted to testify concerning the structure and composition of the Hells Angels, including a description of the formal structure of the club at the international, national, regional and chapter level, the structure of governance at each of those levels, meeting, voting, categories of membership, written rules, symbols used by the club as markers of its identity and categories of membership, clubhouses including what is, in his experience, typically found in clubhouses. He will be permitted to refer to the term Big House Crew and to describe the use of photographs and newsletters in that regard. He will be entitled to rely on hearsay, for the truth of the propositions, in relation to these opinions. [175] Mr. Lemieux will not be permitted to express the following opinions: the opinion with respect to the main purposes and activities of the Hells Angels Motorcycle Club, including that the club is engaged in a pattern of criminal activities primarily, but not exclusively, drug trafficking, that the organization's main purpose is to facilitate the criminal activities of its members, the reputation of the Hells Angels organization in the "criminal milieu". This includes opinions with respect to the

unwritten meaning or significance of the club's formal written rules, the unwritten purpose of the Big House Crew activities, the meaning of patches including the 1%er patch, the Filthy Few patch, the unwritten roles of the president and sergeant at arms, that sanctions for breaches of club rules can include murder, that prospects are introduced to criminal activity and can be ordered to commit crimes, that members use white boards and hand gestures to discuss criminal activities at meetings at the clubhouse, that the recruitment process is an aspect of the Hells Angels' involvement in criminal activity. "Ross J."