COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Phan, 2020 ONCA 298

DATE: 20200513

DOCKET: C63419

Strathy C.J.O., Miller and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thanh Tung Phan

Appellant

James Lockyer and Craig Zeeh, for the
    appellant

Frank Au and Gerald Brienza, for the
    respondent

Heard: March 3, 2020

On appeal from the conviction entered on
    February 7, 2017 by Justice Brian OMarra of the Superior Court of Justice,
    sitting with a jury.

Strathy C.J.O.:

A.

OVERVIEW

[1]

The appellant appeals his conviction for first-degree murder of
    Peter Nguyen. On February 4, 2012, two men shot Mr. Nguyen as he left the
    Wildfire Restaurant on Yonge Street in Toronto, after dinner with his girlfriend.
    The gunmen then jumped into a black Mercedes SUV, which sped from the scene.

[2]

The
    appellant was the owner of the Mercedes. Coincidentally, police had been surveilling
    him as part of an investigation into drug trafficking. They had followed the Mercedes
    to Yonge Street, where they saw it park near the restaurant. They watched and
    waited. They became eye witnesses to Mr. Nguyens assassination.

[3]

The
    Crown alleged that the appellant was the driver of the Mercedes and that he
    participated in the murder by locating the victim, alerting the killers to his departure
    from the restaurant, and facilitating their escape by driving the getaway car.

[4]

The
    principal issue at trial was whether the appellant was the driver of the
    Mercedes. The jury did not have reasonable doubt on that issue.

[5]

Mr.
    Phans appeal rests on two grounds. First, he asserts that the trial judge
    erred in his disposition of a
Garofoli

application:
R. v. Garofoli
, [1990] 2 S.C.R. 1421
; second, he contends that the trial
    judge erred in admitting evidence of a history of violence between two gangs
    that the appellant and the deceased were alleged to be associated with, as the
    prejudicial effect outweighed the probative value.

[6]

For reasons
    that follow, I find no error in the
Garofoli
ruling. I also find no error in the admission of evidence related to the
    history of violence. Accordingly, I would dismiss the appeal.

B.

BACKGROUND

[7]

I will begin by setting out some of the
    background facts. First, the facts relating to the judicial authorization;
    second, the facts relating to the surveillance of the appellants vehicle on
    the day of the shooting; and third, the appellants alleged gang affiliation. I
    will add additional detail when considering each ground of appeal.

(1)

The Authorization

[8]

On January 14, 2014,
as part of a large-scale
    drug investigation into the activities of individuals including the appellant, Durham
    Regional Police obtained an authorization to intercept the appellants
    telephone communications pursuant to ss. 185 and 186 of the
Criminal Code
,

R.S.C.,
    1985, c. C-46, and an authorization under s. 492.1(1) of the
Criminal Code
to install a tracking device on the
    appellants Mercedes.

[9]

This authorization was the subject of a
Garofoli

application at the appellants trial. The appellant argued
    at trial that: (a) the authorization should be set aside because the affiant of
    the ITO deliberately deceived the authorizing justice; (b) he should be
    permitted to cross-examine the affiant and sub-affiants; and (c) he was
    entitled to disclosure of video evidence concerning a third party. The trial
    judge excised some portions of the ITO and permitted some cross-examination of
    the affiant but dismissed the other requests. The trial judges ruling on these
    matters is the subject of the first ground of appeal.

(2)

Surveillance of the Appellant and the Shooting

[10]

Pursuant to the authorization, police conducted surveillance of the
    appellants activities by placing an electronic tracking device on his
    Mercedes. They also intercepted some of his telephone communications.

[11]

On
    January 22, 2014, police officers following the appellant observed him at a SpyTech
    store on Yonge Street. They later determined that he had purchased an
    electronic tracking device. They also subsequently intercepted a call between
    the appellant and a GPS service, seeking to purchase an upgraded tracking plan
    to enable him to more closely monitor the movements of his target. His target
    turned out to be the deceaseds girlfriend, Andrea Villareal.

[12]

On the evening of the killing, February 4, 2014, police had followed
    the appellants Mercedes to Yonge Street, near the Wildfire Restaurant. About
    90 minutes before the shooting, they observed the driver
of the Mercedes
    get out of his vehicle, walk to Ms. Villareals BMW, which was parked nearby, kneel
    down and remove something from underneath. That something was later identified
    as the tracking device the appellant had purchased at SpyTech.

[13]

The
    driver returned to the Mercedes and waited. Around 9:20 p.m., just as Mr.
    Nguyen and Ms. Villareal were leaving the restaurant, the officers saw the
    lights of the Mercedes turn on. The Crown alleged that this was a signal from
    the driver to the gunmen that it was time to act. As Mr. Nguyen and Ms.
    Villareal left the restaurant and walked towards her BMW, two men approached
    them and began shooting at Mr. Nguyen, who fell to the ground while the
    shooting continued. Mr. Nguyen died of multiple gunshot wounds. Ms. Villareal
    was not hit.

[14]

The gunmen fled on
    foot. After a short distance, they got into the Mercedes, which stopped to pick
    them up and then sped from the scene. The gunmen were never identified or
    apprehended.

[15]

Two police officers
    who had been conducting surveillance while the Mercedes was parked near the
    restaurant identified the appellant as the driver of the Mercedes.

(3)

The Gang Evidence

[16]

The Crown brought an application at trial to adduce evidence of a
    history of violent acts between two gangs: the Chin Pac, with which the
    appellant was alleged to be associated, and the Asian Assassinz, alleged to
    be a rival gang to which the deceased belonged. The evidence established connections
    between the appellant and other Chin Pac members, including his brother, Jerry
    Phan. It also chronicled a series of violent acts involving the gangs, including
    the shooting and wounding of Jerry Phan on January 1, 2013 and May 11, 2013, as
    well as his eventual fatal shooting on November 3, 2014, after the killing of
    Mr. Nguyen.

[17]

The Crown contended that the gang evidence was admissible to
    establish that the appellant had a motive to participate in Mr. Nguyens
    killing. The Crown proposed to adduce the evidence through the testimony of
    police officers who were aware of the gang associations and of the specific
    acts of violence. The trial judge encouraged the Crown to adduce the evidence
    through a statement of facts not contested and this, in fact, took place.

[18]

The trial judges admission of this evidence is the basis for the
    second ground of appeal.

C.

ANALYSIS

(1)

The Judicial Authorization

(a)

Background

[19]

The appellant claims that the affiant of the ITO deceived the
    authorizing justice and withheld information from him. He also argues that the
    trial judge should have excluded the evidentiary fruits of the judicial
    authorization, including all the evidence obtained by surveillance of the
    appellant, which would have eviscerated the Crowns case.

[20]

The judicial authorization, as it related to the appellant, came
    about in the following way. In December 2013, members of the Durham Regional
    Police Gun and Gang Enforcement Unit were conducting a large-scale drug
    investigation. Shawn Hussain was one of the targets of that investigation. On
    December 19, 2014, the police followed him to Cumberland Avenue in the
    Yorkville area of Toronto. Officers observed Mr. Hussain getting out of his car
    carrying a back pack and apparently talking on his phone as he paced up and
    down the street. Mr. Hussain got into the passenger seat of a black Mercedes
    SUV, later discovered to be registered to the appellant. About 20 seconds
    later, Mr. Hussain left the Mercedes and returned to his own car. Two officers
    conducting surveillance asserted that when Mr. Hussain got out of the Mercedes,
    he was carrying a different bag, rather than the back pack.

[21]

After Mr. Hussain left the area, police followed the appellants car
    to an apartment building on Broadview Avenue, where they observed it enter the
    underground parking lot. They later discovered that the appellant lived in the
    building and the Mercedes was parked in his spot. Later that day, police
    followed the appellant in Toronto and to Brantford, Ontario, where he engaged
    in activities that they considered indicative of drug trafficking.

(b)

The ITO and the Affiants Evidence

[22]

The appellants core submission in relation to the judicial
    authorization is that the affiant of the ITO, D.C. Nathan Campbell, deliberately
    misled the authorizing justice and colluded with sub-affiants, creating the
    impression that the officers conducting the surveillance had
actually seen
the appellant engage in a drug transaction
    with Mr. Hussain. In fact, they had only observed Mr. Hussain get into and out
    of the appellants Mercedes, and they never actually saw the appellant in the
    vehicle. While officers later observed the Mercedes parked in the appellants
    spot at his apartment building, and still later observed the appellant get out
    of his car after following it to other locations, the appellant says they
    painted a misleading picture, if not outright lied, to make the case for
    authorization appear stronger than it was.

[23]

D.C. Campbell based his statements in the ITO on two reports. One
    was a surveillance report prepared by D.C. Hilborn, the central note-taker for
    the five-member surveillance team on December 19, 2013. His report included the
    statement that the appellant did a bag exchange with Mr. Hussain. The other
    was an investigative report prepared by D.C. Capener, a member of the
    surveillance team. D.C. Capener stated in his report that he was conducting
    surveillance on Mr. Hussain when he met with an Asian male, later identified
    as the appellant.

[24]

Based on this information, D.C. Campbell stated in the ITO:

I believe that association between HUSSAIN with
    PHAN  is for the sole purpose of drug trafficking and that they are all part
    of this drug trafficking network.

I believe that
this
    meeting between HUSSAIN and PHAN was indicative of a drug transaction
.
    This appeared to be a prearranged meeting that lasted for a very short period
    of time. The surveillance team also
observed an exchange
    of bags between HUSSAIN and PHAN
.

Thanh Tung PHAN has been
    identified as an associate of Shawn HUSSAIN. This has been established through
    surveillance. HUSSAIN and THANH were observed during surveillance conducting a
    clandestine meeting that lasted for a short duration of time
. During this meeting
HUSSAIN and PHAN
    conducted a bag exchange
. I believe that this meeting was indicative of
    a drug transaction. I also believe that PHAN supplied drugs to HUSSAIN during
    this meeting. Through further surveillance conducted on PHAN he was observed
    conducting activity which I believe was indicative of drug trafficking.
    [Emphasis added]

[25]

The trial judge granted the appellant leave to cross-examine D.C. Campbell
    on aspects of his affidavit, discussed below. The appellant claims that he
    erred in refusing to grant leave to cross-examine the sub-affiants.

(c)

Disclosure: the video surveillance of Mr.
    Hussain

[26]

The appellant also sought disclosure of video surveillance of Mr.
    Hussain at an apartment building located on Fort York Boulevard in Toronto.

[27]

The issue arose in the following way. D.C. Hilborns surveillance
    report for December 19, 2014 described Mr. Hussain as leaving his own car with
    a large school bag (black), getting into the appellants car, and shortly thereafter
    emerging with a larger black bag. D.C. Capeners surveillance notes described
    the first bag as flat and empty, with zippers on the side, and the second bag
    as being a different shape with zippers all over top.

[28]

D.C. Campbell included a photograph in the ITO, showing Mr. Hussain
    carrying a back pack two weeks earlier on December 4, 2013. In describing the
    bag exchange at the appellants car on December 19, 2013, D.C. Campbell said
    that HUSSAIN has also been observed on a number of occasions, through
    surveillance and security videos to be in possession of a back pack  I believe
    HUSSAIN uses this back pack as a means to transport items that relate to drug
    trafficking.

[29]

After the meeting at the appellants car on December 19, 2013, the
    police tracked Mr. Hussains vehicle to a condominium tower on Fort York
    Boulevard in Toronto. Police subsequently obtained video evidence of Mr. Hussain
    at that location, but D.C. Campbell testified on his cross-examination that he did
    not review the video to determine whether Mr. Hussain was carrying a back pack
    or the more elaborate bag with zippers on the top, described by D.C. Capener.

[30]

During the
Garofoli
application, the appellant requested
    disclosure of video recordings obtained by police from cameras at the Fort York
    Boulevard location, which would have captured Mr. Hussains movements on
    December 19, 2013. He argued then, as he does now, that if the video recordings
    showed the appellant carrying a plain back pack, rather than the zippered bag
    described by D.C. Capener, it would undermine D.C. Capeners credibility with
    respect to the bag exchange. This request went hand-in-hand with the
    appellants request to cross-examine the sub-affiants, D.C. Capener and D.C.
    Hilborn, concerning the bag exchange. The trial judge rejected both requests.

(d)

The Trial Judges Reasons (
R. v. Phan
, 2017 ONSC 978)

(i)

Cross-Examination of the Affiant and Sub-Affiants

[31]

The trial judge granted leave to cross-examine D.C. Campbell, the
    affiant of the ITO, applying the test in
R. v. Pires; R. v. Lising
,
    2005 SCC 66, [2005] 3 S.C.R. 343, at para. 10, and the decision of this court
    in
R. v. Green
, 2015 ONCA 579, 337 O.A.C. 72. He limited the scope of
    the cross-examination to the basis of D.C. Campbells belief that the appellant
    was involved in a drug transaction with Mr. Hussain on Cumberland Avenue on
    December 19, 2013, for the purpose of establishing bad faith or negligence of
    the affiant. He declined to grant leave to cross-examine the sub-affiants,
    because the issues could be fully and fairly canvassed through D.C. Campbells
    examination.

(ii)

Disclosure
    of Video Surveillance

[32]

The trial judge refused the request for additional disclosure,
    including disclosure of the video of Mr. Hussain at Fort York Boulevard.
    Referring to
R. v. McKenzie
, 2016 ONSC 242, 26 C.R. (7th) 112, he
    observed, at para. 18, that [o]nce the disclosure request reaches beyond
    materials placed before the authorizing justice and the contents of the
    investigative file, presumption of relevance is attenuated. He added that in a
    case such as this, where the ITO has numerous targets, the disclosure issues
    on the
Garofoli
hearing should focus on the information related
    specifically to the applicant and not the investigation at large. The
    observations of Mr. Hussain at locations unrelated to the applicant were not
    relevant to the
Garofoli
hearing.

(iii)

Reasonable
    and Probable Grounds

[33]

The trial judge found that the ITO disclosed reasonable and probable
    grounds. In his written reasons, which were released after the cross-examination
    of D.C. Campbell, he noted the narrow scope of a
Garofoli
application,
    which focuses on the affiants reasonable belief in the requisite statutory
    grounds:
World Bank Group v. Wallace
, 2016 SCC 15, [2016] 1 S.C.R. 207.
    The trial judge framed the issue as whether the contents of the ITO provide a
    basis upon which the issuing justice, acting judicially, could find reasonable
    and probable grounds to believe that an offence has been committed and that
    evidence of the offence would be found at the specified place. Even where
    there has been material non-disclosure or misleading or false information
    presented in the ITO, the authorization is not
automatically
vitiated. Rather, these are factors to be considered and the primary focus on
    review is whether the authorizing judge could have been satisfied that the
    order should issue.

[34]

The Crown conceded that the assertion that the appellant was
actually seen
interacting with Mr. Hussain was
    inaccurate and had to be excised from the ITO on review. The trial judge found D.C.
    Campbells cross-examination had exposed inaccuracies, informational gaps, and
    failures to follow up or seek corroboration on important issues. But the issue
    remained whether the affiant reasonably and honestly believed that a bag
    exchange had occurred between the appellant and Mr. Hussain, and whether there
    was a circumstantial basis on which the authorizing justice could have found
    that the appellant was involved in a drug transaction. He pointed out that [t]he
    standard for naming a party on a Part VI [
Criminal Code
] application
    is far less than a balance of probabilities, let alone beyond a reasonable
    doubt and that the standard could be met through circumstantial evidence.

[35]

Ultimately, the trial judge admitted evidence derived from the
    tracking device and from surveillance footage of the appellant. Although the
    erroneous information about the appellant being
observed
in a bag exchange needed to be excised, there was sufficient evidence to
    conclude that the authorizing justice, acting judicially, could find reasonable
    and probable grounds to believe that an offence had been committed and that
    evidence of the offence would be found at the specified place.

[36]

Even with the statement excised, there was sufficient circumstantial
    evidence to conclude that the appellant was in the vehicle when Mr. Hussain
    entered with a bag and quickly left, and that they likely engaged in a drug
    transaction. The trial judge reviewed the key circumstantial facts, at para.
    37:

1. Hussain entered Phans vehicle with a bag
    at Cumberland and exited very shortly thereafter with a bag;

2. Phans vehicle was driven from Cumberland
    and parked at the parking spot reserved for Phan at his residence;

3. Phan was observed later in the day getting
    into and out of his car on more than one occasion; and

4. Nobody else was observed getting into or
    out of his car that day.

[37]

Based on this evidence, the trial judge decided that the authorization
    was valid. However, the affiant should have said that he had
concluded
that the appellant was present during the bag
    exchange, rather than that the surveillance team had
observed
it.

(e)

The Parties Submissions

(i)

Appellant

[38]

The appellant submits the trial judge erred in four respects:

1.

refusing to exercise his discretion to set aside
    the authorization because D.C. Campbell, the affiant of the ITO, had
    deliberately deceived the authorizing justice;

2.

refusing to permit cross-examination of the
    sub-affiants, particularly D.C. Hilborn and D.C. Capener, in order to enable
    the appellant to establish that they had conspired with D.C. Campbell to
    mislead the authorizing justice;

3.

refusing to order production of video evidence
    of Mr. Hussain, which he says would have established that the sub-affiants
    description of Mr. Hussains bag was false, thereby undermining the claim that
    a drug transaction had taken place in the appellants Mercedes; and

4.

concluding that the authorization could have
    been issued in the absence of a specific observation of the appellant on
    Cumberland Avenue.

[39]

With respect to the first submission, the appellant characterizes
    D.C. Campbells actions as an example of noble cause corruption  perverting
    the course of justice in the pursuit of a cause perceived to be worthy. He says
    that D.C. Campbell, probably in conspiracy with the sub-affiants, bolstered the
    case set out in the ITO by making the evidence seem stronger than it actually
    was, by repeatedly describing a person-to-person meeting between the appellant
    and Mr. Hussain. He submits the trial judge failed to properly assess the
    evidence in order to determine whether deliberate deception had occurred.

[40]

With respect to the second and third submissions, the appellant argues
    that cross-examination of the sub-affiants and disclosure of videos of Mr. Hussain
    at Fort York Boulevard could have undermined the affiants claim that there was
    a bag exchange, leading to a conclusion that all the officers had engaged in
    a scheme of deception. Disclosure of the surveillance evidence could have demonstrated
    the existence of such a scheme if it showed that Mr. Hussain still had his back
    pack with him at Fort York Boulevard after the alleged bag exchange.

[41]

Finally, the appellant submits that the trial judge erred in
    concluding that the authorization could have issued in the absence of a
    specific and positive observation of the appellant on Cumberland Avenue. At the
    very least, he submits, had the improper statements been excised, the
    authorizing justice would have required that further inquiries be made to
    determine whether the appellant was actually involved.

(ii)

Respondent

[42]

The respondent submits that the trial judge did, in fact, address
    the issue of deliberate deception  he found that when D.C. Campbell swore the ITO,
    he reasonably believed that the appellant was present at a drug transaction
    with Mr. Hussain. This finding of fact was open to him. D.C. Campbell was
    entitled to rely on the investigative reports of members of the surveillance
    team and had no reason to doubt them.

[43]

As to cross-examination of the sub-affiants, the issue was the
    honesty and reasonable belief of the affiant, not the ultimate truth of his
    statements overall:
World Bank
, at para. 119. The appellant has failed
    to demonstrate that there was a reasonable likelihood that cross-examination of
    the sub-affiants would reveal deception on the part of D.C. Campbell.

[44]

The respondent submits that the request for additional disclosure
    was properly dismissed, as the appellant did not establish that there was a
    reasonable likelihood that the materials would be relevant to the
Garofoli
application.

(f)

Analysis

[45]

These grounds of appeal turn on well-settled principles of law set
    out in decisions of the Supreme Court of Canada, notably
Garofoli
,
Pires;
    Lising
, and
World Bank
.

[46]

Before turning to each of these grounds, I make some general
    observations about the aspects of the
Garofoli
analysis that are at
    issue.

(i)

The Challenge to the Judicial Authorization

[47]

The
Garofoli
analysis determines the reasonableness of a
    search or other statutory investigative measure. That determination requires
    the statutory preconditions for the exercise of such measures to have been met:
World Bank
, at paras. 117-118. In essence, whether there were
    reasonable and probable grounds to believe that the measures would produce
    evidence concerning the particular offence.

[48]

The challenge to the authorization in this case is a sub-facial
    challenge. The record before the authorizing justice was, on its face,
    sufficient to meet the statutory requirements, but the appellant asserted that
    the record did not accurately reflect what the affiant knew or ought to have
    known. If it had, he submits, the authorization would not have issued: see
World
    Bank
, at paras. 120-121.

[49]

Typically, on a sub-facial challenge, the accused argues that misleading
    or inaccurate portions of the ITO must be excised, and the validity of the
    authorization is determined by what remains. The accused may also argue that
    the augmented record placed before the reviewing judge demonstrates that the
    affiant deliberately, or at least recklessly, misled the issuing judge,
    rendering the entire ITO unreliable as a basis upon which to issue a warrant:
R.
    v. Shivrattan
, 2017 ONCA 23, 346 C.C.C. (3d), at para. 26, leave to appeal
    refused, [2017] S.C.C.A. No. 93.

[50]

Due to the
ex parte
nature of applications for search
    warrants, wiretaps, and other investigative aids, the affiant of an ITO is
    required to make full and frank disclosure of material facts:
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. The affiant must not deceive the
    reader by making unsupportable conclusions or leaving out important qualifying
    information:
R. v. Booth
, 2019 ONCA 970, at para. 55. Furthermore, in
Booth
,
    at para. 56, this court clarified that the affiants duty of candour requires
    disclosure of all material information that:

(a) could undercut the probability that the
    alleged offence has been committed;

(b) could undercut the probability that there
    is evidence to be found at the place of the search; and

(c) that challenges the reliability and
    credibility of the information the affiant officer relies upon to establish
    grounds for the warrant.

[51]

As the determination of whether the statutory conditions have been
    met focuses on the affiants reasonable belief, the
Garofoli
analysis
    does not determine whether the allegations in support of the authorization were
    ultimately true. It determines whether the affiant had a reasonable belief in
    the existence of the requisite statutory grounds:
Pires; Lising
, at
    para. 41. And this turns on what the affiant knew or ought to have known at the
    time the affidavit in support of the authorization was sworn. The parties agree
    that the applicable test is set out in
World Bank
, at paras. 122-3:

an error or omission is not relevant on a
Garofoli

application if the affiant could not reasonably have known
    of it. Testing the affidavit against the ultimate truth rather than the
    affiant's reasonable belief would turn a
Garofoli

hearing into a trial of every allegation in the affidavit,
    something this Court has long sought to prevent

When assessing a subfacial challenge, it is important to note
    that affiants may not ignore signs that other officers may be misleading them
    or omitting material information. However, if there is no indication that
    anything is amiss, they do not need to conduct their own investigation. [Citations
    omitted.]

[52]

Typically, evidence that the affiant knew or ought to have known was
    false, inaccurate, or misleading will be excised from the ITO when
    determining whether it was lawfully issued. If there is additional evidence
    that the affiant knew or ought to have known was required for full and frank
    disclosure, it should be added back:
World Bank
, at para. 121;
Booth
,
    at para. 59.

[53]

After excision and amplification is complete, the reviewing court
    should determine whether, based on the corrected ITO, there is a basis upon
    which the authorizing justice, acting judicially, could find reasonable and
    probable grounds to believe that an offence has been committed and that
    evidence of the offence would be found at the specified place. The question is
    whether there is sufficient reliable information upon which the search
    authority could be grounded:
R. v. Paryniuk
, 2017 ONCA 87, 134 O.R.
    (3d) 321, at para. 45.

[54]

It is, however, well-settled that even where sufficient reliable
    information remains after excision and amplification, the reviewing judge has a
    residual discretion to set aside an authorization where the judge is
    satisfied that the conduct of the police has been subversive of the
    pre-authorization process leading to the issuance of the search authority:
Paryniuk
,
    at para. 66.

[55]

That residual discretion must be exercised having regard to the
    totality of the circumstances:
Araujo
, at para. 64. Furthermore, in
Paryniuk
,
    at para. 69, this court described the test for the exercise of that discretion
    as follows:

What is clear, however, is that previous authority in this
    court has recognized a residual discretion to set aside a warrant despite the
    presence of a proper evidentiary predicate for its issuance
where police conduct has subverted the
    pre-authorization process through deliberate non-disclosure, bad faith,
    deliberate deception, fraudulent misrepresentation or the like.

[Emphasis added; citations omitted.]

[56]

The standard to invoke that discretion is high. In
Paryniuk
,
    at para. 74, this court clarified that [s]ubversion connotes undermining,
    corrupting, weakening, destroying or disrupting a system or process. In some
    cases, it has been described as conduct that amounts to an abuse of process:
R.
    v. Vivar
, 2009 ONCA 433, at para. 2;
Paryniuk
, at para. 62.

[57]

The appellant submits that D.C. Campbell engaged in deliberate
    deception of the authorizing justice and submits that the trial judge failed
    to come to grips with that issue.

(ii)

Did
    the Trial Judge Err in Failing to Find the Affiant Engaged in Deliberate Deception?

[58]

The trial judge plainly understood the appellants assertion that
    the affiant had deliberately deceived the authorizing judge. He noted, at para.
    8 of his reasons, the appellants submission that the statement in the ITO that
    the appellant was
observed
engaging in a drug
    transaction with Mr. Hussain was not only inaccurate, but knowingly false and
    misleading and that the authorizing justice was knowingly misled or at least
    led astray by a cavalier failure to properly follow up on information and
    properly inform the authorizing justice.

[59]

After observing D.C. Campbells cross-examination, the trial judge
    concluded that D.C. Campbell honestly and reasonably believed that the [appellant]
    was at the bag exchange. While he should not have deposed that [the appellant]
    was observed in a bag exchange with Hussain  his conclusion that he was there
    was nonetheless reasonable. The affiant reached this conclusion based on the
    totality of information provided to him and the inferences he drew from that
    information.

[60]

These findings of fact, which were plainly available to the trial
    judge, are an implicit repudiation of the appellants claim of deliberate
    deception. There was no evidence before the reviewing judge to support the
    appellants assertion that D.C. Campbell conspired with the sub-affiants to
    make the case stronger than it appeared. D.C. Campbell testified that he made
    his statements in the ITO based on the written reports of D.C Capener and D.C Hilborn.
    He was entitled to do so. Those reports supported the inference the affiant
    drew from them that there had been a drug exchange between the appellant and
    Mr. Hussain in the appellants Mercedes on Cumberland Avenue, and that the
    appellant was engaged in activities consistent with drug trafficking.

[61]

I would therefore reject this submission.

(iii)

Disclosure
    of Video Recordings of Mr. Hussain

[62]

Both parties have referred to
McKenzie
as accurately
    summarizing the principles applicable to disclosure requests in the
Garofoli
context. In most cases, subject to confidential informant privilege, the
    accused is entitled to disclosure of all documents that were put before the
    authorizing justice and all other relevant materials in the investigative
    file concerning the accused:
McKenzie
, at para. 15. If the material
    sought is not part of the investigative file, then it is presumptively irrelevant.
    There is an onus on the accused to show that disclosure will be of assistance
    to the court in relation to a material issue on the application to set aside
    the authorization:
McKenzie
, at paras. 39, 53, referring to
Pires;
    Lising
, at paras. 30-31, 41.

[63]

The videos of Mr. Hussains comings and goings at Fort York
    Boulevard were unconnected with the appellant  they were not part of the
    investigative file against him, nor did the affiant rely on them in the ITO.
    What they might or might not have established, in relation to the accuracy of
    statements in the ITO concerning the appellant, were matters of pure
    speculation. The appellant failed to establish a reasonable likelihood that
    they would assist the court in the determination of the application. The trial
    judge rightly refused to be led down an evidentiary rabbit hole on a search for
    evidence to support a speculative claim. While it might have been easy enough
    to require the Crown to produce the evidence, that was not the point. Regardless
    of whether Mr. Hussain appeared at Fort York Boulevard with a back pack,
    zippered bag, or no bag at all, the video footage would not invalidate the
    affiant officers reasonable reliance on the investigative reports of the
    sub-affiants, which indicated that Mr. Hussain entered the Mercedes with one bag
    and emerged with another at Cumberland Avenue. The trial judge kept his focus
    as
World Bank
demands  on the reasonable belief of the affiant and
    not on the ultimate truth of every assertion in the affidavit.

[64]

In my view, the trial judge did not err in refusing this request.

(iv)

Cross-Examination of Sub-Affiants

[65]

Leave is required to cross-examine an affiant or sub-affiant. The
    standard for granting leave was set out by Sopinka J. in
Garofoli
, at
    p. 1465, as follows:

Leave must be obtained to cross-examine. The granting of leave
    must be left to the exercise of the discretion of the trial judge. Leave should
    be granted when the trial judge is satisfied that cross-examination is
    necessary to enable the accused to make full answer and defence.
A basis must be shown by the accused for the
    view that the cross-examination will elicit testimony tending to discredit the
    existence of one of the pre-conditions to the authorization, as for example the
    existence of reasonable and probable grounds
.
    [Emphasis added.]

[66]

Sopinka J. added that the trial judge should limit the scope of
    cross-examination to questions that seek to establish that there was no basis
    on which the authorization could have been granted:
Garofoli
, at p. 1465.

[67]

The focus on a motion for leave to cross-examine is on the
    reasonableness and honesty of the affiants belief about the existence of the
    requisite grounds, and not on the ultimate accuracy of the information the
    affiant relies upon:
R. v. Victoria
, 2018 ONCA 69, 359 C.C.C. (3d)
    179, at para. 80. A proposed cross-examination directed to show only that some
    of the information relied upon by the affiant is false is unlikely to warrant
    leave unless it can also support an inference that the affiant knew or ought to
    have known it was false:
Pires; Lising
, at para. 41.

[68]

When an accused seeks evidence in support of a
Garofoli
application,
    that narrow test must be kept in mind. In
R. v. Imam
, 2012 O.J. No.
    6543 (C.J.), at para. 14, Paciocco J., as he then was, indicated that an
    accused must demonstrate a threshold factual basis  raising a reasonable
    likelihood that cross-examination will produce probative evidence tending to
    discredit a material precondition to the authorization being granted or tending
    to show significant police misconduct in securing the search order.

[69]

On appeal, the decision of whether to grant leave to cross-examine
    an affiant or sub-affiant should be reviewed with deference. In
Garofoli
,
    at p. 1465, Sopinka J. stated, The discretion of the trial judge should not be
    interfered with on appeal except in cases in which it has not been judicially
    exercised. Absent an error in principle, a material misapprehension of any
    evidence, or an unreasonable decision, an appellate court will defer to the
    trial judge:
Victoria
, at para. 8;
Garofoli
, at p. 1465; and
Pires;
    Lising
, at para. 46.

[70]

Here, the trial judge granted the appellant leave to cross-examine
    D.C. Campbell but, in accordance with the direction given in
Garofoli
,
    at p. 1465, he limited the scope of the examination to key issues that went
    into the assessment of whether there were reasonable grounds to grant the
    authorization. Specifically, he permitted cross-examination related to: the
    basis for the officers belief that the appellant was present in the area of
    Cumberland Avenue in Toronto in the early evening of December 19, 2013; the
    basis for his sworn belief that, at that time and place, the appellant was
    involved in an illicit drug transaction with Mr. Hussain; and the further
    observations of the appellant and his vehicle on December 19, 2013.

[71]

The appellant does not take issue with that determination. But he
    takes issue with the trial judges conclusion that cross-examination of the
    sub-affiants was not required because the issues could be fully and fairly
    explored through D.C. Campbells cross-examination.

[72]

The appellant has not demonstrated that the trial judge made an
    error in principle or misapprehended the evidence in refusing to order
    cross-examination of D.C. Capener and D.C. Hilborn. Nor was the decision
    unreasonable. Even assuming that the sub-affiants deliberately tailored their
    reports to make it appear that there was a direct drug transaction with the
    appellant (and there is no evidence of this), there is no factual basis to
    indicate that the affiant was aware that they had done so, ignored signs, or was
    wilfully blind to indications of impropriety.

[73]

Having considered all the evidence, including the cross-examination
    of D.C. Campbell, the trial judge concluded that the affiant honestly and
    reasonably believed that the [appellant] was at the bag exchange. He
    acknowledged that D.C. Campbell should not have deposed that the appellant was
    observed in a bag exchange with Mr. Hussain, but his conclusion that he was
    there was nonetheless reasonable. As in the case of the disclosure request,
    the trial judge focused on the affiants reasonable belief and not on the
    ultimate truth of his statements. He properly refused cross-examination of the
    sub-affiants.

(v)

Concluding
    that the Authorization Could be Issued

[74]

It follows, in my view, that the trial judge did not err in
    concluding that the authorization could have issued with the offending portions
    of the ITO having been excised. There was circumstantial evidence that Mr.
    Hussain was a big league drug dealer, and direct evidence that he entered the
    appellants car on Cumberland Avenue in a furtive manner while carrying a bag and,
    very shortly thereafter, got out carrying either the same bag or a different
    bag. The trial judge described the circumstances as being reasonably viewed as
    a drug transaction. While there was no direct observation of the appellant in
    his car, it was driven from Cumberland Avenue to his apartment building and was
    parked in his spot. He was observed later in the day getting into and out of
    his car on more than one occasion and nobody else was observed getting into and
    out of his car that day.

[75]

As the trial judge noted, the standard for naming a party on an
    application under Part VI of the
Criminal Code
is far less than a
    balance of probabilities. He reasonably concluded that the authorizing
    justice could reasonably have found that it was Phan in his car on Cumberland
    Avenue when the drug dealer Hussain entered with a bag and quickly left.

[76]

The trial judge did not err in his disposition of the
Garofoli
ruling. I would not give effect to this ground of appeal.

(2)

The Gang Evidence

[77]

The appellants second ground of appeal is that evidence of his alleged
    membership in the Chin Pac and of the history of violence between the Chin Pac
    and the Asian Assassinz was overwhelmingly prejudicial, incapable of
    remediation by jury instructions, and should have been excluded by the balancing
    of prejudicial effect and probative value.

(a)

The Evidence
    Admitted

[78]

Over the objection of the defence, the trial judge permitted Crown
    counsel to file as an exhibit and read into evidence a 56-page document
    entitled Facts Not Contested, consisting of five pages of narrative and eight
    appendices. This took place at the conclusion of the Crowns case and after the
    trial judge had given the jury a mid-trial instruction, informing them of the
    permitted use of the evidence and cautioning them against improper use.

[79]

The Facts Not Contested provided a basis for the following
    conclusions: (a) the appellant, his brother, Jerry Phan, and his friend, Steven
    Livingstone, were members of the Chin Pac gang; (b) the deceased, Peter Nguyen,
    was a member the Asian Assassinz gang; and (c) there had been a long history of
    back and forth violence  shootings, stabbings, assaults and killings
    involving members of the two gangs. The incidents referred to included:

·

on July 3, 2010, Steven Livingstone (Chin Pac)
    was stabbed at The Guvernment nightclub in Toronto;

·

on July 10, 2010, a week later, Tien Pham (Asian
    Assassinz) was shot and killed at a restaurant in Chinatown;

·

on August 11, 2011, the appellants brother,
    Jerry Phan (Chin Pac), was shot while driving his car on Lake Shore Boulevard
    in Toronto;

·

on January 1, 2013, Jerry Phan and his
    girlfriend were shot in the parking lot of The Guvernment nightclub;

·

on February 24, 2013, Thuan Tony Nguyen (Chin
    Pac) was shot and killed outside a lounge in Toronto;

·

on March 30, 2013, Michael Nguyen (Asian
    Assassinz) was shot and killed at the Yorkdale Shopping Centre. Michael Nguyen
    had stabbed Tony Nguyen in 2003. Thanh Danny Vo (Asian Assassinz) was also
    shot at the same location on March 30, 2013;

·

on May 11, 2013, the appellants brother, Jerry
    Phan, was shot again while eating at a restaurant in the Yorkdale Shopping Centre.
    The appellant and Steven Livingstone were present, but were not hit;

·

on December 6, 2013, Michael Quan (Asian Assassinz)
    was shot on Lakeshore Boulevard in Toronto;

·

on December 26, 2013, Duy Ly Nguyen (Chin Pac)
    was shot 14 times outside his familys residence but survived. An hour and 20
    minutes later, Jamie Dang (Asian Assassinz) appeared in a Toronto area hospital
    with a bullet wound. The Crown theory was that the shootings were related;

·

on February 9, 2013, Hung Pham (Asian Assassinz)
    was shot and killed. (This took place five days after the victim in this case,
    Mr. Nguyen, was shot and killed outside the Wildfire restaurant); and

·

on November 3, 2014, the appellants brother,
    Jerry Phan, was shot and killed while sitting in his car in the parking lot of
    a restaurant in Richmond Hill.

[80]

The Facts Not Contested also included photographs of members of
    each gang found by police in the possession of rival gang members, indicating
    that members of the two gangs had been targeting each other for violence.

(b)

The Trial Judges Reasons (
R. v. Phan
, 2017 ONSC 1061)

[81]

The trial judge observed that the evidentiary record adduced by the
    Crown provided a reasonable basis to conclude that the appellant and the
    deceased were members of the rival gangs, and that the violent history between
    the groups or gangs provided a motive for the [appellant] to participate in the
    murder of Peter Nguyen. He said a long-term perspective is necessary to
    assess the interaction of the two groups and concluded:

If this evidence were not left with the jury they would be left
    to consider an apparently senseless shooting that involved unknown shooters and
    an alleged party who had no apparent motive. The absence of a proven motive
    would tend to support the denials by the respondent in his post-arrest
    statement. If they receive this evidence they may or may not find it is
    evidence of a motive. To exclude this evidence from their consideration on the issue
    of motive and intention would leave them to decide the case on the basis of
    some artificially crafted, antiseptic version as referred to by Dambrot J. in
R. v. Riley et al.,
2009 CanLII 15451
    (ONSC) at para. 38.

[82]

The trial judge gave the jury a mid-trial instruction before
    admitting the evidence, as well as a final instruction explaining the limited
    purpose for which the evidence was admitted and its prohibited uses.

(c)

The Jury Instructions

[83]

The appellant does not challenge the trial judges jury instructions.
    He simply says that instructions were incapable of mitigating the prejudice
    caused by the litany of inter-gang violence put before the jury, none of which was
    proven to have involved him as a perpetrator.

[84]

Before the evidence was introduced, the trial judge told the jury
    that the Crown would tender evidence that the appellant and the victim were
    associated with separate groups, and that there had been a history of
    violence between the two groups. The Crown would contend that this evidence
    relates to a potential motive for this homicide. He would give the jury
    further instructions, but he explained that they could not consider the
    evidence in any way as showing that Thanh Phan is a violent or bad person or
    that he is the type of person who would commit the crime he is alleged to have
    done. Nor could they use the evidence to find that the appellant was involved
    in or responsible for any of the violent acts that the Crown alleged were
    committed by the Chin Pac.

[85]

The trial judge repeated and expanded upon these cautions in his
    final instructions. He explained the Crowns assertion that the motive for the
    crime and for the appellants involvement was based on the violent history
    between the rival gangs over several years. The jury members were to consider
    whether the appellant and Mr. Nguyen were associated with the rival gangs, but this
    did not require proof beyond a reasonable doubt. Motive was not an essential
    element of the crime, but if they found that the appellant had a motive, it might
    assist them in deciding whether the Crown had proven its case beyond a
    reasonable doubt. He explained, once again, the limited use they could make of
    the evidence and its impermissible uses.

(d)

The Parties Submissions

(i)

Appellant

[86]

The appellant acknowledges that some of the gang evidence was
    probative of motive and animus. He submits, however, that most of the evidence
    had no probative value because it was remote and unconnected to motive and
    thus unduly prejudicial. He submits the evidence was all one-way. It
    established violence perpetrated by the Asian Assassinz against the Chin Pac,
    but it did not establish that the appellant was aware of this violence or that
    it resulted in reprisals by the Chin Pac. The trial judge failed to give
    sufficient consideration to the highly prejudicial impact of much of the
    evidence, particularly the evidence of a killing that occurred after the
    shooting of Mr. Nguyen, which had no probative value in establishing motive. A
    caution was insufficient to undo the prejudicial effect of all the evidence.

[87]

By analogy to the principles applicable to similar fact evidence, the
    appellant argues that the relevant acts of violence must be linked to the
    accused and the mere possibility of a connection is insufficient, referring to
R.
    v. Arp
, [1998] 3 S.C.R. 339 and
R. v. Perrier
, 2004 SCC 56, [2004]
    3 S.C.R. 228, at para. 31. In this case, the Crown called no evidence to
    establish the identity of the perpetrators of the acts of violence which
    allegedly formed part of the narrative or served as evidence of animus and motive.
    Lumping this disconnected evidence against the appellant was highly
    prejudicial. Relying on
R. v. Riley
, 2017 ONCA 650, 137 O.R. (3d), the
    appellant submits that much of the gang evidence should have been excluded as
    peripheral and unduly prejudicial.

(ii)

Respondent

[88]

The respondent submits that the jury was not required to consider
    the killing of Mr. Nguyen in a vacuum  they were entitled to know the history
    of violent retribution between the appellants and the deceaseds gangs. They were
    also entitled to consider these actions, including violent actions against the
    appellants brother and his friend, in assessing whether the appellant had a
    motive to participate in Mr. Nguyens killing.

[89]

The respondent further submits that the trial judge understood the
    prejudicial effect of the evidence of gang violence, but it was mitigated by
    the manner in which the evidence was admitted  a documentary record  rather
    than
viva voce
evidence of police officers who had investigated the
    various crimes that formed part of the narrative. In addition, the trial judge
    provided effective cautionary instructions, both mid-trial and in his final
    instructions, that the jury should not infer that the appellant was involved in
    the other alleged wrongdoings of the Chin Pac or that he was the type of person
    who would commit the charged offence.

(e)

Analysis

(i)

Legal Principles

1)

Evidence of Bad Character

[90]

Evidence of gang membership is bad character evidence. It is
    presumptively inadmissible unless the Crown can demonstrate that: (a) it is
    relevant to an issue in the case; and (b) the probative value outweighs its prejudicial
    effects:
R. v. B., (F.F.)
, [1993] 1 S.C.R. 697, at p. 699. The
    evidence is inadmissible if it serves only to show that an accused is the type
    of person likely to have committed the offence:
B. (F.F)
, at p. 731;
R.
    v. G. (S.G.).
, [1997] 2 S.C.R. 716, at para. 65.

[91]

While evidence of gang membership can be highly prejudicial, it may
    be relevant for a variety of purposes. Like all bad character evidence, it may
    be admissible on an exceptional basis where its probative value outweighs its
    prejudicial effect. It may be admissible to provide context or narrative, to
    establish animus or motive, or to establish the accuseds state of mind or
    intention, among other purposes. The case law is replete with the admission of
    gang association evidence for these and other purposes.

2)

Evidence of Narrative

[92]

Evidence that the accused is a member of a gang may have a narrative
    purpose, to help the jury understand the events as they unfolded. Narrative
    evidence is evidence that tells the story of a crime in a manner that makes it
    possible for the jury to properly carry out its fact-finding function:
R.
    v. Riley
(2009), 246 C.C.C. (3d) 552 (Ont. S.C.J.), at para. 60. The
    principle underlying the admission of narrative was expressed by Nordheimer J.,
    as he then was, in
R. v. Skeete
, 2012 ONSC 737, at para. 15, affd 2017
    ONCA 926, 357 C.C.C. (3d) 159, leave to appeal refused, [2018] S.C.C.A. No. 508:

it remains the fact that a criminal trial is, after all, about
    the search for truth. A jury ought to be provided with information that will
    allow them to put the central facts into context including the nature of the
    relationships between persons connected to the events that might not otherwise
    be obvious.
Jurors should not be placed
    in a situation where they are attempting to perform their truth seeking
    function in what is effectively either a factual vacuum or an artificial one
.
[Emphasis added.]

[93]

Evidence of gang membership and a history of gang violence may be
    relevant as narrative to contextualize a homicide that otherwise seems
    senseless. For example, in
Riley (SCJ)
, at para. 38, which was cited
    by the trial judge, Dambrot J. admitted narrative of an ongoing gang war for
    the following reasons:

Without this background,
    the jury will be left to puzzle over an allegation of a senseless shooting by
    individuals who had no motive to do it
. They will inevitably be
    invited by the accused to find a reasonable doubt on the basis of the absence
    of motive when in fact, evidence of motive exists. While it is imperative that
    limits be placed on the bad character evidence sought to be introduced by the
    Crown, and that strong instruction be given to the jury about how to use the
    evidence that is admitted,
I do not
    think that the jury should be expected to decide this case on the basis of some
    artificially crafted, antiseptic version of the case
. [Emphasis
    added.]

3)

Evidence of Motive and
    Animus

[94]

In addition to providing context, evidence of the accuseds gang
    affiliation may be relevant to the accuseds motive and animus.

[95]

Motive and animus are related concepts. Animus refers to hostility
    toward a person or group. Animus may form part of a motive, which is what
    induces a person to act:
R. v. Darnley
, 2020 ONCA 179, at para. 46.
    This type of evidence is always relevant to intent or identity, although it
    must be evidenced by human acts and there are limitations to the extent to
    which such acts may be introduced:
Lewis v. The Queen
, [1979] 2 S.C.R.
    821;
R. v. Sheriffe
, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 81,
    leave to appeal refused, [2016] S.C.C.A. No. 299.

[96]

As this court observed in
R. v. Salah
, 2015 ONCA 23, 319
    C.C.C. (3d) 37, at para. 64, evidence of motive is relevant because:

Evidence of motive is a kind or species of circumstantial
    evidence that invokes a prospectant chain of reasoning. The line of argument
    engaged is that the previous occurrence of an act, state of mind, or state of
    affairs justifies an inference that another act was done, or state of mind or
    affairs existed, at some time afterwards that is material to the proceedings.

[97]

An accuseds motive may be influenced by group membership. To
    determine if this has occurred, the trier of fact must first decide whether the
    accused is a member of a group. If they find that to be the case, they may
    consider whether the accused was influenced by a group motive. In
R. v.
    Sipes
, 2011 BCSC 640, at para. 53, Smart J. explained the concept of group
    motive:

In assessing the probative value of the discreditable conduct
    in this trial, it is essential to recognize that the charged offences are
    alleged to have been committed by members of a gang for the purpose of
    advancing the gangs drug business. In other words,
the motive for each of the charged offences was a group motive. As
    such, the structure of the gang and the role in or relationship of each of the
    accused to the gang is relevant to the Crowns theory as to why the offences
    were committed and why the individual accused participated in the commission of
    them
. [Emphasis added.]

[98]

In addition, it is open to the Crown to adduce evidence that shows
    or tends to show the intensity and permanence of a motive since this may
    enhance the probability that the person with the motive acted in accordance
    with it:
Salah
, at para. 66.

[99]

Evidence of the accuseds gang affiliations has been admitted to
    show animus and motive in many cases: see
Riley (ONCA)
;
R. v.
    Sarrazin
, 2010 ONCA 577, 259 C.C.C. (3d) 293, affd 2011 SCC 54, [2011] 3
    S.C.R. 505;
R. v Haevischer
, 2012 BCSC 1641; and
R. v. Sanghera
,
    2012 BCSC 993.

(ii)

Application

[100]

As I have noted, the appellant does not dispute that some evidence
    of gang affiliation and some evidence of prior gang violence may have been
    relevant to narrative, animus, and motive. The appellant argues that the
    prejudicial effect of the evidence outweighs the probative value. Therefore, the
    trial judge erred by putting highly prejudicial evidence before the jury and inviting
    the jury to find the appellant guilty by virtue of his gang membership.

[101]

The appellants submissions on this ground of appeal can be
    summarized in the following way:

1.

the evidence was too remote and did not connect
    him to the violent acts because the police did not identify any suspects;

2.

the evidence only demonstrated one-way violence
    by the Asian Assassinz (the gang the deceased was associated with) against the
    Chin Pac (the gang the appellant is associated with);

3.

violence that took place after the charged
    offence was not relevant;

4.

the evidence does not satisfy the legal standard
    set out by the Supreme Court in
Arp
and
Perrier
; and

5.

given the above, the prejudicial effect
    outweighed the probative value.

[102]

I would not give effect to these submissions. I will explain.

1)

Remoteness of the Evidence: Lack of Suspects and One-Way Violence

[103]

I will address the first two submissions together. I do not accept
    the submission that the evidence was too remote because the police did not
    identify any suspects. Nor do I accept the submission that the evidence only
    disclosed one-way violence by the Asian Assassinz against Chin Pac. Although
    the police had not identified suspects in these events, there was strong
    circumstantial evidence that painted a picture of an ongoing war between the
    Asian Assassinz and the Chin Pac.

[104]

The gang violence evidence provided narrative and context. It was
    open to the jury to conclude that the appellant was a member of Chin Pac, whose
    members included his brother, Jerry Phan, and his friend, Steven Livingstone. Based
    on the evidence, the jury could also find that the Chin Pac had a long history
    of back and forth violent conflict with the Asian Assassinz. This evidence
    tells the story of the crime and provides necessary context. As in
Riley
    (SCJ)
, the absence of this background would leave the jury to decide this
    case on the basis of some artificially crafted, antiseptic version of the case
    and to puzzle over an allegation of a senseless shooting by individuals who
    had no motive to do it.

[105]

It was also open to the jury to conclude that the acts of violence
    perpetrated by the Asian Assassinz against Chin Pac members provided both group
    motive and personal motive for revenge and retribution: see
Sipes
, at
    para. 53. Notably, there were several attempts to kill the appellants brother,
    Jerry Phan, including one incident in the presence of the appellant on May 11,
    2013. The frequency and nature of these acts of violence could help establish
    the intensity and permanence of that motive:
Salah
, at para. 66. Thus,
    the history of back and forth violence involving the two gangs, whether as
    victims or perpetrators, provided important context for the shooting of Mr. Nguyen,
    as well as evidence of animus between the two gangs. That animus, in turn, could
    have motivated the appellant to retaliate. As noted by this court in
Skeete
    (ONCA)
, at para. 169, Retaliation for a perceived wrong may provide a
    motive for a crime. Overall, this evidence helps explain why the appellant might
    assist in the killing of Mr. Nguyen.

[106]

Therefore, I do not accept the appellants submission based on
Riley
    (ONCA)
that the gang violence evidence is unrelated and inadmissible. In
Riley
    (ONCA)
, this court held that the evidence was inadmissible because it was
    evidence of
unrelated criminality
that formed no
    part of the narrative of the [charged] shooting. It was not of assistance in
    establishing motive on some of the counts (emphasis added): at para. 212. The
    present case differs. The gang violence evidence is relevant to the charged
    shooting for the purposes of narrative, motive, and animus.

2)

Evidence of Violence After the Charged Offence

[107]

I do not accept the appellants submission that events after the
    killing of Mr. Nguyen were irrelevant to the existence of animus. Specifically,
    he argues that the evidence of the shooting of Hung Pham, another Asian
    Assassinz member, several days after the shooting of Mr. Nguyen, could not have
    been relevant to the appellants culpability in the latters death. Coming, as
    they did, on the heels of Mr. Nguyens assassination, these events were
    compelling evidence of the permanence and intensity of the animosity between
    the gangs. These incidents made it more likely that the animus was present when
    Mr. Nguyen was shot five days earlier.

[108]

As this court observed in
Riley (ONCA)
, at para. 160, as a
    practical matter,  a trial judge may properly take into account the temporal
    connection between the discreditable conduct evidence and the charged offences in
    assessing its probative value. Even if events take place after the charged
    offence, the test remains whether the evidences probative value exceeds its
    prejudicial effect, there is no legal requirement for the Crown to establish evidence
    of discreditable conduct occurring after the charged offences is of
    exceptional probative value. In the present case, the trial judge made no
    error in balancing the probative value and prejudicial effect of the
    post-offence evidence.

3)

Applicability of the Similar Fact Evidence Cases

[109]

Nor do I accept the appellants submission concerning the
    applicability of similar fact evidence cases, such as
Perrier
and
Arp
.
    Those principles would require the jury to consider: (1) whether the evidence
    of one group activity can be used to identify the group responsible for another;
    and (2) whether the evidence has sufficient probative value in relation to the
    particular accused to outweigh its prejudicial effect. The appellant submits
    that the gang violence evidence is inadmissible because the police did not
    identify who committed the violent acts in the Facts Not Contested document. Without
    this information, it is impossible to identify whether a particular gang or any
    gang was responsible for the acts of violence. Therefore, there was no link
    between the appellant and the acts of violence committed by the Asian Assassinz.

[110]

Perrier
and
Arp
were concerned
    with similar fact evidence led for the purpose of identity. The Supreme Court
    clearly indicated that the test in
Perrier
applies to situations where
    you have several crimes committed with a unique
modus operandi
, and
    the objective improbability of coincidence is high: at para. 31. In those
    cases, the trier of fact should be permitted to draw an inference that the
    same gang committed the acts:
Perrier
, at para. 31. But in the
    present case, the purpose of the evidence is to provide narrative, motive, and
    animus  it is not to demonstrate identity on the basis of a unique
modus
    operandi
.

[111]

Other courts have rejected the application of
Perrier
to
    gang history evidence adduced for purposes other than identity. In
Riley
    (SCJ)
, the accused made a similar submission, arguing that
Perrier
placed limits on the admissibility of gang activity evidence. However, Dambrot
    J. rejected this argument, clarifying that
Perrier
is a classic
    similar fact evidence case where the evidence is used to establish identity,
    but it does not apply when the purpose is narrative:

In my view, this judgment is of no assistance to the accused.
Perrier
is
    what I would call a classic similar fact case, where one or more offences
    proved to have been committed by the accused is strikingly similar to the crime
    charged, and as a result is admissible to identify the accused as the person
    who committed the crime charged
.
Perrier
simply provides appropriate restraints on the application of the principles
    concerning such cases in the situation where it is the gang's method of
    operation that is unique, and not the method of operation of an individual.
    This is not such a situation.

In this case,
the gang
    evidence is not being tendered to prove identity on the basis of the uniqueness
    of the crime. It is being lead as part of the narrative of the case
,
    and for the various other purposes that I am about to outline. As will be seen,
    none of these uses depends on the uniqueness of the crime for its probative
    value.
Perrier
has nothing to say about these issues
.

[Emphasis added.]

[112]

For similar reasons, in
Haevischer
, at para. 88, Wedge J.
    rejected the application of
Perrier
to gang activity adduced for
    purposes other than identity. Wedge. J. explained that
Perrier
is a
    similar fact case that sets restraints on evidence related to a gangs unique methods,
    it does not apply generally to all discreditable conduct evidence.

[113]

Even outside the gang context, this court has explained that motive
    evidence does not fit neatly within the normal similar fact evidence test
    because its probative value does not arise from any similarity:
R. v.
    Johnson
, 2010 ONCA 646, 262 C.C.C. (3d) 404, at para. 98.

[114]

In conclusion, the test from similar fact evidence cases like
Perrier
and
Arp
does not apply. The Crown did not advance a classic similar
    fact case where the allegation against the accused bears a striking similarity
    to prior acts, such as a unique gang trademark. When discreditable conduct evidence
    is led for the purpose of narrative, motive, and animus, the typical process
    for weighing probative value and prejudicial effect applies. There is no need
    for the additional step described in
Perrier
of looking for
    similarities to infer that the same gang carried out the acts.

4)

Balancing Probative Value and Prejudicial Effect

[115]

Overall, the trial judge did not err in balancing the probative
    value and prejudicial effect of the gang violence evidence. The trial judge
    plainly appreciated the value of the evidence in relation to narrative, animus,
    and motive, but was equally aware of the potential prejudicial effect. He was
    at pains to contain the scope of the evidence to limit its effect and to ensure
    that there was no reference to the appellants involvement in perpetrating any
    acts of violence, so as to mitigate the risk of moral prejudice. As the trial
    judge noted in his admissibility ruling at para. 9, The Crown stipulated that
    if the evidence was admitted, there would be no information or suggestion that
    the [appellant] was personally involved in any of the acts of violence. He
    instructed the jury to this effect.

[116]

The prejudicial effect of the evidence was also mitigated by the
    method by which it was adduced. In many cases, gang-related evidence has been
    introduced through an expert. In this case, the Crown did not propose to call
    an expert, but was prepared to call police witnesses to testify about the
    history of violence involving members of the Chin Pac and the Asian Assassinz.
    In the course of the application to adduce this evidence, the trial judge suggested
    that concessions by the defence could alleviate the need to call some of the
viva
    voce
evidence the Crown sought to adduce. The trial judge asked the Crown
    to consider drafting admissions with respect to the bottom line evidence it
    wanted to adduce on this issue. Ultimately, the trial judge carefully curated
    the evidence by permitting the introduction of the Facts Not Contested
    document. As noted at trial, this means of putting the evidence before the jury
    removed some of the punch or impact of the evidence and minimized the risk of
    reasoning prejudice, which is the risk of distraction and confusion from the
    main issues at trial. While the risk of moral prejudice remained, it was
    mitigated by the jury instructions.

[117]

The trial judges weighing of probative value and prejudicial effect
    is entitled to deference, in the absence of an error of principle, consideration
    of an irrelevant factor, failure to consider a relevant factor, or a plainly unreasonable
    conclusion:
Skeete (ONCA)
, at para. 139.

[118]

No such error has been identified and I would
    not give effect to this ground of appeal.

D.

CONCLUSION AND ORDER

[119]

For these reasons, I would dismiss the appeal.

Released: GRS     MAY 13 2020

G.R. Strathy C.J.O.

I agree. B.W. Miller J.A.

I agree. Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Phillips, 2020 ONCA 323

DATE: 20200528

DOCKET: C65435

Doherty, Juriansz and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Phillips

Appellant

Richard Litkowski, for the appellant

Natalya Odorico, for the respondent

Heard: May 19, 2020 via videoconference

On appeal from the conviction entered by
    Justice E. Meijers of the Ontario Court of Justice, dated January 22, 2018.

REASONS FOR DECISION

[1]

In the late evening or early morning of April 28
th
/29
th
,
    2017, someone broke into the Anthony home in Orillia, Ontario and stole Ms.
    Anthonys purse and the keys to the truck parked in the driveway. The next
    morning, Mr. Anthony discovered the purse, keys and truck were missing.

[2]

The appellant and a co-accused were charged with
    one count of break and enter, two counts of theft (the truck and the purse),
    and one count of possession of stolen property (the truck). The co-accused was
    acquitted on all counts. The appellant was convicted on counts one to three and
    acquitted on count four, based on the date of the offence alleged in the
    information.

[3]

The appellant initially appealed conviction and
    sentence, but has abandoned his sentence appeal.

[4]

The case against the appellant was entirely
    circumstantial. The Crown argued that the totality of the circumstantial
    evidence compelled the conclusion that the appellant, with one or more
    accomplices, had broken into the Anthony home, stole the purse and keys and
    drove the Anthony car to Kingston to visit his girlfriend.

[5]

The appellant did not testify. The Crown tendered
    a statement made by the appellant. In that statement, he acknowledged getting a
    ride from Orillia to Hamilton and then to Kingston to see his girlfriend. He
    would not identify the driver.

[6]

There was little, if any, dispute about the
    credibility of the evidence tendered by the Crown. The outcome turned on what
    inferences could be drawn from that evidence. The evidence justified the
    following findings:

·

some time in the late evening of April 28
th
or the early morning of April 29
th
, a person or persons broke into
    the Anthony home in Orillia, Ontario and stole Ms. Anthonys purse and the keys
    to the truck parked in the driveway. The thieves left the house and drove away
    in the truck;

·

the appellant was living in a drug
    rehabilitation residence in Orillia on April 28
th
. He was required
    to sign in and out. He signed out of the residence shortly after 6:00 p.m. on
    April 28
th
and did not return;

·

there was no evidence as to the relative
    locations of the rehabilitation residence and the Anthony home, other than both
    were said to be in Orillia;

·

Highway 407 toll records show the Anthonys vehicle
    proceeding eastward, near Markham, Ontario shortly after 6:00 a.m. on April 29
th
;

·

Kingston is about 300 kilometres east of
    Markham;

·

the appellant was arrested on an unrelated
    warrant in Kingston, Ontario at his girlfriends residence at about noon on May
    1
st
. The co-accused was arrested in Kingston on May 2
nd
;

·

the Anthonys truck was found on a street in
    Kingston on May 19
th
. Parking tickets on the truck indicated it had
    been parked on the same street, if not in the same spot, since at least May 3
rd
at 9:52 a.m.;

·

the truck was found about four kilometres from the
    residence of the appellants girlfriend and about one kilometre from the
    residence where the co-accused was arrested;

·

the appellants DNA was lifted from a Red Bull
    can found under the passenger seat in the Anthonys vehicle. The co-accuseds
    DNA was found on a cup also located in the back of the vehicle. Other cups and
    assorted garbage were also found in the back of the truck;

·

a construction hat was found in the vehicle. It
    did not belong to Mr. Anthony. The appellant had a construction job on April 28
th
when he left the Orillia area. There was no physical evidence connecting the
    hat to the appellant;

·

the keys to the truck and Ms. Anthonys purse
    were found in the truck; and

·

Mr. Anthony did not know the appellant or the
    co-accused.

[7]

In convicting the appellant on three charges,
    the trial judge said:

I find nothing in the evidence or in common
    sense which proffers any reasonable, innocent explanation for their
    juxtaposition. Mr. Phillips had a motive to go to Kingston. He had no vehicle of
    his own. He was right in the area of where the vehicle was stolen. The vehicle
    took a path to Kingston shortly after it was stolen. He was arrested in
    Kingston at his girlfriends house, some 300 plus kilometres away within 2½
    days, and his DNA was found inside the vehicle. Obviously it had been put there
    before May 1st, because after May 1st noon, he was in custody.

In my view, it would require a great deal of
    speculation to come up with some alternative explanation that fits common sense
    and reality on the evidence that is before me.

[8]

The appellant argues that the verdict is
    unreasonable. He submits, that while the circumstances are suspicious, the
    inferences necessary to prove the allegations beyond a reasonable doubt cannot
    reasonably be drawn. In his submission, at its highest, the evidence puts the
    appellant in the Anthony vehicle some time after it was stolen on the evening
    or early morning of April 28
th
-29
th
and the time of his
    arrest on May 1
st
at around noon. The appellant contends the finding
    he was in the truck within a few days of its theft could not support the
    conclusion that he was ever in possession of the truck, much less that he was a
    party to the break-in and thefts at the Anthony home.

[9]

This court has a limited power under s.
    686(1)(a)(i) to review the reasonableness of a conviction. This courts task is
    well described in
R. v. Lights
, 2020 ONCA 128, at para. 39:

When a verdict that rests wholly or
    substantially on circumstantial evidence is challenged as unreasonable, the
    question appellate courts must ask is whether the trier of fact, acting
    judicially, could reasonably be satisfied that the guilt of the accused was the
    only reasonable conclusion available on the evidence taken as a whole:
    [citation omitted]. Fundamentally, it is for the trier of fact to determine
    whether any proposed alternative way of looking at the case as a whole is
    reasonable enough to raise a doubt about the guilt of the accused.

[10]

There is nothing to connect the appellant to the
    break-in or the thefts, except for his alleged possession of the stolen vehicle
    shortly after the break-in and thefts occurred. The reasonableness of the three
    convictions turns on whether the circumstantial evidence was reasonably capable
    of supporting the inference the appellant was not only in the Anthony vehicle
    when it travelled to Kingston, but was also in possession of that vehicle.
    Possession requires proof of some element of control over the thing said to be
    possessed:
R. v. Pham
(2005), 203 C.C.C. (3d) 326, at para.
16 (Ont. C.A.), affd, [2006] 1 S.C.R. 940;
R. v. Terrence
,
    [1983] 1 S.C.R. 357.
Absent a finding the appellant was
    in possession of the truck, the further inferences he was the person who broke
    into the Anthony home and stole the purse and keys was not reasonably
    available.

[11]

The Crown claims there were two or more people
    involved in the break-in, the theft and the trip to Kingston. There is no
    evidence the appellant was driving the vehicle. Other than evidence he was in
    the vehicle, there is nothing from which possession of the vehicle could
    reasonably be inferred.

[12]

We are satisfied the evidence was equally
    consistent with an inference that the appellant became involved with the
    vehicle some time after the break-in and the thefts had occurred. On that view,
    even if the appellant knew the break-in had occurred and the vehicle was
    stolen, he was not a party to the break-in or the thefts from the Anthony
    residence. His potential liability on a charge of possession of the stolen
    vehicle, based on his presence in the vehicle, is a  moot point. He was
    acquitted on that charge and there is no appeal from that acquittal.

[13]

On our review of the evidence, a trier of fact
    could not reasonably be satisfied that the appellants guilt on the charges was
    the only reasonable conclusion available on the evidence. The appeal must be
    allowed, the verdicts set aside, and acquittals entered.

Doherty
    J.A.

R.G.
    Juriansz J.A.

B.W.
    Miller J.A.