





CITATION:
R. v. Boswell, 2011
          ONCA 283



DATE: 20110411



DOCKET: C45422



COURT OF APPEAL FOR ONTARIO



Cronk, Lang and Watt JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Leon Boswell



Appellant



Emily Morton, for the appellant



Susan Magotiaux and Joanne Stuart, for the respondent



Heard: April 1, 2011



On appeal from the conviction entered by
          Justice J. D. McCombs of the Superior Court of Justice, dated January 17,
          2003, and the sentence imposed by Justice McCombs, dated February 17, 2003.



CRONK J.A.:

[1]

After a trial by judge and jury, the appellant was
    convicted of second degree murder and sentenced to life imprisonment without
    eligibility for parole for 20 years.  He
    appeals his conviction.

[2]

There is one issue on this appeal.  The appellant argues that the trial judge
    erred by admitting opinion evidence from a police expert regarding the
    existence of a code of silence in the community where the killing occurred.  If accepted by the jury, this evidence could
    potentially explain why the main eyewitness to the murder initially lied to the
    police about whether he witnessed the murder and could identify the
    perpetrator.

I.         Background

[3]

Identity was the central issue at trial.  The Crowns sole witness on this issue was
    Shaun Sharp, a young man who lived in the Rexdale community in Toronto where
    the killing took place.  Sharp testified
    at trial that the appellant shot the victim, Wayne Reid, after a verbal
    altercation between Reid, on the one hand, and the appellant and his associate,
    Jermaine Grant, on the other hand.  Sharp
    was a friend of the victim, and knew both the appellant and Grant.  He testified that he was the only witness to
    the shooting, other than the appellant, Reid and Grant.

[4]

Sharp identified the appellant as the shooter in both a
KGB
statement
[1]
to the police and in a police photo line-up approximately 48 hours after the
    shooting.  However, on three separate
    occasions shortly after the killing and before he identified the appellant as
    the shooter, Sharp falsely claimed to the authorities that he did not witness
    the shooting and that he did not know the identity of the victims
    assailant.

[5]

It was the Crowns position that the shooting took
    place in a community affected by an ongoing war between competing gangs, in
    which violent and armed confrontations frequently occurred, including between
    members of the same gang.  As a result,
    the Crown moved before trial for a ruling from the trial judge permitting it to
    lead expert evidence from several police officers on various subjects relating
    to gang wars and gang culture.

[6]

One of the subjects on which the Crown sought to lead
    opinion evidence concerned the cultural values in play in high crime, high
    density communities in Toronto, like the Rexdale neighbourhood where the
    murder occurred, that allegedly led to a pervasive code of silence among gang
    members and others in the affected communities.  Specifically, as described in the appellants factum, the Crown sought
    to tender evidence from Detective Sergeant Comeau, a police expert on gangs, to
    the effect that:

[T]here was a code of silence that prevailed in
    these communities, and in particular the Rexdale communities at issue in this
    trial, such that residents who witnessed homicides would not provide
    information to police at all, either as a result of distrust of police or, more
    significantly, because of fear of violent retaliation.

[7]

It is undisputed that the Crown sought to elicit this
    evidence in order to provide context for Sharps failure to identify the
    shooter until 48 hours after the killing and to corroborate his claim that he
    did not initially identify the appellant as the shooter, in part, because he
    feared for his life if members of his community learned that he had co-operated
    with the police.

[8]

The Crown maintained that, without the proffered expert
    evidence on this alleged code of silence, including the fear of gang
    retribution for co-operating with the police, the jury would be unable to
    fairly assess Sharps initial lies to the police, his delayed identification of
    the perpetrator, and his alleged fear of being killed if he co-operated with
    the police.  The Crown argued that the
    code of silence evidence would inform the narrative of events surrounding the
    shooting, ensuring that the narrative would not appear illogical, and aid the
    jury in assessing Sharps credibility.

[9]

The defence resisted the admission of the evidence on
    several grounds.  It argued, among other
    things, that: (1) the police expert would express an opinion on Sharps
    credibility, as opposed to the general existence of a code of silence; (2) the
    evidence was unnecessary, as the existence of a code of silence in gang-dominated
    communities was notorious and Sharp and other fact witnesses could testify as
    to its existence in this case; and (3) as police officers, the experts proffered
    by the Crown were not objective.

[10]

The Crowns motion to lead expert evidence was heard
    over the course of a lengthy
voir dire
,
    during which the trial judge questioned counsel in detail and received
    submissions on the issues of relevance, necessity, prejudice and
    expertise.  Eventually, the trial judge
    denied the Crowns motion with two exceptions, one of which related to the
    proposed code of silence evidence.  In
    that regard, the trial judge expressed the view that the proffered evidence was
    highly probative because, [T]he average person might well be ignorant of the
    fact that in certain high crime, high density, urban areas,
a
code of silence exists based on fear of retaliation that is much more powerful
    than the average person would appreciate.  I will return to some of the specific details of the trial judges
    ruling later in these reasons.

[11]

The appellant attacks the trial judges admission of
    the code of silence opinion evidence on several bases.  He argues that: (1) it lacked any relevance to
    the factual issues to be determined by the jury; (2) it was unnecessary; and
    (3) it seriously prejudiced the appellant.  The appellant further submits that, although the trial judge attempted
    to constrain any impermissible use of the code of silence evidence by the jury,
    this evidence nevertheless served only to oath help, or gratuitously bolster,
    Sharps credibility.  As the evidence was
    therefore largely irrelevant, unnecessary and highly prejudicial, it had the
    irreparable effect of undermining trial fairness.

II.        Issues

[12]

As I have said, the only issue on this appeal is
    whether the trial judge erred by admitting the challenged code of silence
    evidence.

III.      Discussion

(1)

Test for Admission of Expert Evidence

[13]

The test for the admission of expert evidence is
    well-established and undisputed on this appeal.  At the first stage of the admissibility inquiry, the party seeking to
    tender expert evidence must establish on a balance of probabilities that the
    proffered evidence is: (1) relevant; (2) necessary; (3) not subject to any
    applicable exclusionary rule; and (4) to be advanced through the testimony of a
    properly qualified expert.  Where these
    four preconditions to admissibility are satisfied, the second stage of the admissibility
    inquiry obliges the trial judge to engage in a contextual weighing of the
    probative value and significance of the proffered evidence to the case against
    the potential prejudice that could flow from its admission.  See
R.
    v. Abbey
(2009), 97 O.R. (3d) (C.A.), leave to appeal refused (2010), 409
    N.R. 397 (note);
R. v. Mohan
, [1994]
    2 S.C.R. 9.

[14]

For the following reasons, I am satisfied that the
    preconditions for the admission of the code of silence evidence were met in
    this case and that the trial judge did not err in his admissibility analysis.

(2)

Preconditions to Admissibility

[15]

The
    appellant does not suggest on appeal that the code of silence evidence was
    subject to any exclusionary rule that would preclude its admission.  Nor does he contend that Detective Sergeant Comeau,
    the Crowns proffered expert witness on this issue, lacked the necessary
    qualifications to provide the evidence in question.  For the purpose of this appeal, therefore,
    only the relevance and necessity preconditions to the admissibility of the code
    of silence evidence are in issue.

(a)

Relevance

[16]

The
    appellant challenges the relevance of the code of silence evidence on two main
    grounds.  He argues that Sharp gave
    multiple reasons in his trial testimony for his initial decision to lie to the
    authorities, only one of which implicated a general code of silence in the
    community where the killing occurred.  In
    fact, the appellant maintains, on his own version of events, Sharps mistrust
    of the police and his fear of retaliatory consequences if he identified the
    shooter were not the main reasons prompting his initial lies to the police.

[17]

The
    appellant next submits that Sharps decision to co-operate with the police
    within 48 hours of the killing demonstrates that any code of silence that did
    exist was ineffective with respect to Sharp. It follows that the proposed
    rationale for the admission of this evidence did not arise on the facts of this
    case.

[18]

I
    would not give effect to these arguments for several reasons.

[19]

First,
    Sharp did provide several reasons for his initial lies to the police and his
    failure to immediately identify the shooter, one of which involved his hope
    that Reid would survive and that, together, they could exact private revenge
    for the shooting.  However, he also
    testified about his distrust of the police, his communitys distrust of the
    police and the justice system, and his own fear of physical harm if it was
    discovered that he had identified the shooter.

[20]

During
    his examination-in-chief at trial, Sharp was questioned as to why he initially
    lied to the police about whether he saw the shooting and knew the identity of
    the shooter.  He stated that he lied to
    the police the first two times because he expected Reid to come out of it
    and then we would go after revenge and, further, that he lied [t]he third
    time just to stick with the story.  However, almost immediately thereafter, he elaborated: We dont talk to
    the police.  We dont tell police what
    happened.  We just take care of our own
    justice.  He went on to agree that it
    was a widely held view in his community, which he shared, that the police could
    not be trusted to do things right.

[21]

Sharp
    repeated his claim that members of his community just dont talk to the
    police several times throughout his evidence.  He also testified that he was concerned about talking to the police
    because of what would happen to him when people found out that I was the one
    who talked
,
including the possibility that someone
    would come to his house and kill him.  When pressed on this issue during cross-examination, Sharp testified that
    when the victims mother urged him to tell the truth to the police after the
    shooting, the only concern I had was for the fact that I might get killed for
    talking and that he was worried about the code of not talking and getting
    killed.  Finally,
Sharp
also testified that he no longer lived in his former Rexdale community and
    would not return there, even to visit friends, since he thought that he would
    be shot and killed if he did so as a result of co-operating with the police in
    this case.

[22]

Based
    on this evidence, I do not agree with the appellants contention that Sharps
    claimed distrust of the police and his fear of retaliation did not figure
    prominently in his explanation for his initial lies to the police.  On the contrary,
Sharp
clearly identified these factors as influencing his conduct in the first 48
    hours after the shooting.  It was for the
    jury, as the trier of fact, to determine what weight, if any, to assign to
    these considerations in assessing
Sharps
credibility.

[23]

Nor
    do I agree that the code of silence in Sharps community as described both by
    Comeau and Sharp in their testimony did not arise on the facts of this
    case.  On Sharps own evidence, outlined
    above, this code of silence was clearly implicated.  The fact that Sharp ultimately decided to
    identify the shooter for the police does not mean that a code of silence did
    not operate to prevent him from doing so immediately after the shooting.

[24]

Finally,
    the threshold for establishing relevance for the admission of expert evidence
    is not particularly onerous.  As this
    court indicated in
Abbey
at para. 83,
    To be relevant, the evidence must not only be logically relevant but must be
    sufficiently probative to justify admission.

[25]

Comeaus
    testimony bore on the general issue whether a code of silence existed in the
    Rexdale community where Reid was murdered.  Comeau did not comment on the truthfulness of any particular witness,
    including Sharp.  Nor did he comment on
    whether
Sharp
or any other witness was actually
    affected or lived by a code of silence in relation to the police.  Rather, based on his prior policing
    experience in the Rexdale community at issue, he testified about the general
    existence of a code of silence in the affected community, the nature of that
    code, and whether it rendered the failure to provide information to the police
    unusual.  In these circumstances, the
    jury was properly left to draw its own conclusions about why
Sharp
lied to the police.

[26]

In
    my opinion, this evidence, if accepted by the jury, provided context for the
    jury to understand the cultural mores at play in the affected Rexdale community
    that may have caused a community member like Sharp to lie to the police. This
    is not the same thing as evidence indicating that a code of silence, or other
    cultural community value, in fact operated to cause a witness to lie to the
    police.

[27]

The
    trial judges evaluation of the relevance of the code of silence evidence was
    considered and thorough.  It attracts
    significant deference from this court.  I
    see no basis on which to interfere with his ruling on this issue.

(b)

Necessity

[28]

I reach a similar conclusion concerning the necessity
    of the code of silence evidence.  In my
    opinion, on the facts of this case, it was open to the trial judge to conclude that
    the jury needed to hear this evidence in order to be made aware of the
    existence and nature of a code of silence in Rexdale at the time of the
    murder.

[29]

As the trial judge observed, knowledge of the existence
    of such a cultural phenomenon and of its implications are not matters within
    the everyday experience of the average person, even in Toronto. The
    determination of what matters fall within the normal experience of jurors is
    squarely within the trial judges domain: see
R. v. D.S.F.
(1999), 43 O.R. (3d) 609 (C.A.).

[30]

The appellant argues, in effect, that while the code of
    silence evidence may have been necessary in this case, it was not necessary
    that it be adduced through an expert police witness. He submits that evidence
    of the code of silence was available from Sharp and, to a lesser extent, from
    some of the alibi witnesses called by the appellant.

[31]

I have already outlined the nature of Sharps evidence
    regarding the code of silence. While Sharp testified about this code and its
    effect on his conduct, his credibility was very much in issue and was
    vigorously attacked by the defence. Indeed, as a result of significant concerns
    about Sharps credibility and reliability, the trial judge provided a strong
Vetrovec
warning to the jury in relation
    to his testimony: see
Vetrovec v. The
    Queen
, [1982] 1 S.C.R. 811.  In these
    circumstances, it cannot be said that expert evidence regarding the general
    existence of a code of silence and its nature was unnecessary because the
    evidence was otherwise available through Sharp.

[32]

Nor does the evidence of the defence alibi witnesses
    render Comeaus testimony unnecessary. Those witnesses provided some evidence
    about the reasons why a community code of non-co-operation with the police
    could account for the failure of additional community members to provide alibi
    evidence for the benefit of the appellant. However, their testimony did not
    concern the possible operation of a community code of silence as a causal
    factor in the provision of false information to the police.

[33]

The trial judge, an experienced criminal law jurist,
    was best-positioned to assess the necessity for the admission of the code of
    silence evidence. His assessment of that issue also attracts considerable
    appellate deference.

[34]

As a final point, the Crown underscores that the
    defence position at trial, emphatically outlined for the jury, was that Sharp
    was a liar who lived in a dream world detached from reality. The nature of
    this theory provided additional support for the trial judges conclusion that
    it was necessary, in order that the jury not be misled, that it
hear
from Comeau about the common experience and prevalence
    in the community of a code of silence.

(3)

Requisite Balancing Exercise

[35]

The transcript from the
voir dire
reveals that the trial judge was acutely aware of the
    need to ensure that the jury was not misled by the evidence led at trial and,
    as well, that any prejudice to the appellant be prevented.  As a result of frequent exchanges with
    counsel during the
voir dire
, the
    Crown eventually acknowledged that the required code of silence evidence could
    be introduced at trial without any reference to gangs.  Without resiling from his primary position
    that the code of silence evidence was inadmissible, defence counsel at trial
    (not counsel on appeal) suggested that, [I]t might be possible to address these
    issues in a compromise form if the word gang is not uttered, since this
    approach would minimize prejudice.

[36]

In his exchanges with counsel, the trial judge
    expressed this tentative view:

The truth is he [Sharp] is a liar, he told two
    different versions, but the question is why
did he lie
.  Hes going to have to say, Yes, I
    lied.  The question is why.  The question is
,
is
    the Crown entitled to call evidence that would lend credence to his explanation
    as to why he lied?  That, it seems to me,
    has important and powerful probative value that might well be capable of
    outweighing even the highly prejudicial evidence that your client is a member
    of a gang.  Thats where my problem
    is.
So
    if we can leave the G word out of this and not preclude the Crown from having
    the jury understand these things, then it strikes me as an exquisite balance
    between competing interests and ensuring fairness to both sides.
Thats my present view.  [Emphasis added.]

[37]

Thereafter, the trial judge continued to hear
    submissions before ruling that the code of silence evidence would be admitted,
    under certain strict safeguards.  The
    importance of these safeguards, both to an understanding of the trial judges
    ruling and to the prevention of any risk at trial that the jury might misuse
    the code of silence evidence, cannot be overstated.  These safeguards included the following.

[38]

First, the trial judge prohibited any reference, by
    anyone at trial, to gangs.

[39]

Second, counsel negotiated, and the trial judge
    approved, the language and content of the evidence to be given by Comeau.  The effect of this was to narrowly confine
    the scope of Comeaus testimony.  As
    vetted by the trial judge, the approved script eventually read as follows:

There is a code of silence in high crime, high
    density neighbourhoods that exists in part because of distrust of police and in
    part because of fear of violent retaliation if the witness gives information to
    the police.  In these specific Rexdale
    communities during the relevant time period, the code of silence that existed
    far exceeded that which the police normally encounter in investigating murders
    in high crime urban areas.  This code of
    silence was
a result
of the fact that people living in
    this community were terrified to identify anyone who they knew or believed to
    have committed a violent offence.

Project Alliance operated in the area for nine
    months and failed to turn up a single witness willing to testify.  The reason for this extreme fear was the
    expectation that anyone that did rat (i.e. provide information to the police)
    could expect to face very violent consequences potentially, including
    death.  It was not at all unusual for
    witnesses to murder in this area to lie to the police claiming to know nothing
    because of the extreme fear of retaliation.  It would be reasonable for a person living in this community and having
    witnessed a homicide to fear for his life if he were to provide information to
    the police.

[40]

The trial judge also made it clear that Comeau would
    not be permitted to opine on the truthfulness of Sharp or that of other
    witnesses and that, if Comeau strayed in his testimony from the approved
    parameters of his evidence, the trial judge would unhesitatingly excuse the
    jury.  Sharp was also directed to avoid
    any references to gangs in his testimony.  The transcript reveals that when Comeau was asked questions
by defence counsel
, where the answers might
    require him to tread into impermissible areas, he steadfastly declined to
    answer the questions posed, indicating that he could not comment on the application
    of the code of silence to any particular individual. In several of these
    instances, the trial judge promptly excused the jury to review and rule on the
    propriety of the questioning.

[41]

Third, the trial judge also addressed the manner in
    which Comeau could offer his opinion evidence.  Comeau was directed to give his testimony in a non-emotive fashion, to
    use language in the past tense to avoid any suggestion of recent violence, and
    to refrain from mentioning race.

[42]

Fourth, and importantly, at the conclusion of Comeaus
    evidence, the trial judge provided the jury with a clear mid-trial instruction
    on the use of expert evidence, including Comeaus evidence.  In so doing, he cautioned the jury, in blunt
    and unambiguous terms, that it was the supreme arbiter of the facts, that
    expert evidence could not replace the jurys own assessment of the evidence and
    that expert testimony was no more important than any other evidence.

[43]

Fifth, the trial judge gave an equally clear and more
    detailed instruction in his charge to the jury on the permissible use of expert
    evidence.  In that instruction, he repeatedly
    emphasized that it was for the jury to decide whether to accept any witness
    testimony, in whole or in part, that the jury was the sole judge of the facts,
    and that there were very important limitations on the use that [the jury] can make
    of Comeaus evidence.  On at least five
    occasions, the trial judge told the jury that Comeaus evidence on the code of
    silence was admitted for a limited purpose. He described that purpose as being
    to help [the jurors] to understand things that [they] may not have known from
    [their] experience, namely, cultural values in the affected communities
    that, if the code of silence evidence was accepted by the jury, might be taken into
    account in assessing Sharps testimony as to why he initially lied to the
    police regarding the murder.  In
    providing this caution, the trial judge twice told the jury that Comeaus
    evidence could not be used to bolster or prop up Sharps evidence, as this
    would constitute impermissible oath helping and, further, that Comeaus
    testimony could not be used as a basis on which to conclude that Sharp had
    eventually told the truth, both to the police and to the jury.

[44]

The trial judge went even further. In his charge, he
    reminded the jury that Comeau had acknowledged that people lie to the police
    for a variety of reasons, unrelated to the code of silence. He also invited
    the jury to consider whether
Sharp
had lied to the
    police for reasons other than fear of reprisal, for example, out of a desire to
    deflect blame away from himself. He concluded his instruction concerning
    Comeaus testimony by stating that Comeau was not an expert on determining the
    truth and again told the jury that it would be wrong for it to be influenced
    by any opinion that it thought Comeau may have had about Sharps courage or
    believability.

[45]

The trial judge went to extraordinary lengths to
    safeguard against the impermissible use of Comeaus testimony by the jury and
    to thereby prevent prejudice to the appellant arising from this evidence.  Having implemented these protective measures,
    the trial judge enforced them, ensuring that Comeau did not transgress the
    previously approved parameters of his testimony  even when invited to do so by
    the defence  and that the jury understood the narrow and limited permissible use
    of his evidence.  Short of refusing to
    admit the code of silence evidence entirely, evidence which I regard as having
    been both relevant and necessary at this trial, it is difficult to conceive
    that the trial judge could have done more.

[46]

Finally, for many of the reasons already given, it is my
    opinion that the trial judges balancing of the benefit or value of admitting
    Comeaus evidence against the prejudice or cost to be occasioned by its
    admission was unimpeachable.  The trial
    judge identified the limited purpose of the code of silence evidence,
    repeatedly cautioned the jury about that limited purpose and the impermissible
    use of the evidence, and guarded against its misuse throughout.  I have no hesitation in concluding that he
    removed any realistic risk that the jury would engage in impermissible
    reasoning in relation to the code of silence evidence.

[47]

I therefore agree with the Crowns submission, set out
    in its factum:

In sum, the minimal cost of admission was
    manageable.  Through the extraordinary
    measure of removing the word gang from the entire trial, the trial judge
    sufficiently sanitized the evidence to prevent any risk of the jury engaging in
    unfair propensity reasoning.  He also
    used every preventative measure available to him to limit or prevent any other
    potential prejudice resulting from the admission of the opinion evidence.  He limited the scope of the proffered
    opinion, he set out specific wording to prevent a witness from running afoul of
    his ruling,
he
cautioned witnesses on limits prior to
    testimony, and delivered mid-trial and final instructions delineating both the
    appropriate and impermissible uses of the evidence.  In the end, he attained the exquisite
    balance he sought.

IV.      Disposition

[48]

Accordingly, for the reasons given, I would dismiss the
    appeal.

RELEASED:


APR 11 2011                                            E.A.
    Cronk J.A.

EAC                                                            I
    agree S.E. Lang J.A.

I
    agree David Watt J.A.





[1]

R. v. B. (K.G.)
, [1993] 1
    S.C.R. 740.


