R v. Cook: The Need to Prevent Evidence of Gang Affiliation to Ensure Trial Fairness

Authors: Paul Chorney and Eric Matthews

Introduction

Based on a 2024 report from the Guns and Gangs Awareness Campaign, one in five Canadians report that they or someone close to them has been affected by gang-related violence.[1] Given the threat of gang-related violence to the safety and well-being of Canadian society, it is understandable that most jurors – constituting Canadian citizens performing their civic duty – would want to know whether an accused is a gang member or not. However, in ensuring that the justice system furthers its goals of truth-finding and trial fairness, the best interests of the justice system often require that jurors not be privy to this information, as it falls under the designation of ‘bad character evidence.’

Bad character evidence is anything that shows the conduct of the accused beyond what is in the charges that would be “seen with disapproval by a reasonable person.”[2] Accordingly, evidence that depicts an accused as a gang member is bad character evidence and is presumptively inadmissible.[3] The problem with bad character evidence is that it often leads to an adverse inference that an accused with gang affiliations is more likely to commit an offence. Recently, given the increase in gang-related violence, Ontario courts have been repeatedly tasked with weighing the prejudicial effects of the gang evidence on the accused against its probative value to the Crown’s case in determining its admissibility.[4] This raises the question: why is it important to limit the admissibility of bad character evidence amidst a crisis of gang-related violence in Canadian neighbourhoods? In answering this question, this blog post evaluates a 2020 decision of the Ontario Court of Appeal to demonstrate the overwhelming prejudicial effects of gang evidence to trial fairness.

R. v. Cook: The Mistrial of a Hell’s Angel

In R. v. Cook, the appellant had been convicted at trial for possession of steroids for the purposes of trafficking, possession of cocaine for the purposes of trafficking, and two counts of possession of the proceeds of crime.[5] Throughout the trial, the Crown repeatedly tendered evidence suggesting that the accused was associated with the Hell’s Angels, including photographs of biker-affiliated clothing and paraphernalia.[6] Additionally, the jury heard from several officers who readily shared their assignments to units involved with a large-scale investigation into organized crime.[7] On appeal, the Court concluded that the cumulative impact of the bad character evidence undermined the fairness of the trial, as it led to an inescapable inference that, by virtue of the accused’s affiliation with a criminal subculture, he was more likely to commit the offences before the Court.[8]

The Prejudicial Effects of Gang Evidence

At first glance, a layperson might be outraged at the decision of the Ontario Court of Appeal in Cook to give a new trial to a member of the Hell’s Angels. At the same time, most Canadians would still recognize that trial fairness is a core value of our justice system. Although it is not always clear, on the surface, when the probative value of the gang membership evidence outweighs its prejudicial effects on the accused, this section intends to demonstrate how evidence of gang affiliation may taint the fairness of a trial. It also questions whether the application of the rules, as it stands, adequately addresses the prejudicial effects of bad character gang evidence.

The Logical Fallacy

Some may argue that individuals who choose to join a gang do so with the knowledge that these groups conduct illegal activities, and accordingly, these individuals should not be shielded by the presumptive inadmissibility of bad character evidence. However, this mind frame can lead to jurors making a dangerous adverse inference that since the accused is willingly gang-affiliated, they probably committed the offences with which they are charged. While in some cases, evidence of gang membership might explain motive, in many others, evidence of gang membership alone has no correlation to the offences committed – to claim that it does is a logical fallacy.[9] Although an accused might partake in some criminal activities with a gang, it does not mean they committed the specific offence at hand.

The logical fallacy created by the adverse inference also goes against the fundamental principle of criminal law regarding the burden of proof of the Crown. When evidence of gang membership or affiliation is suggested or relied upon in the courtroom, trial fairness is immediately threatened. While the Crown has the burden of demonstrating guilt beyond a reasonable doubt, it is possible that jurors may rely upon the bad character evidence, consciously or subconsciously, to supplement any doubt or holes in the Crown’s case. According to s. 11(d) of the Canadian Charter of Rights and Freedoms, individuals are presumed innocent until proven guilty, although the admission of bad character evidence may threaten this right.[10] In the example of Cook, the Crown had the burden to prove that Cook had possessed drugs for the purpose of trafficking, not that he was a gang member who, therefore, trafficked drugs.[11]

Poor efficacy of jury instructions

As the gatekeepers of evidence, trial judges carry a large burden in ensuring trial fairness. A large part of this duty is controlling what evidence is presented to the jury and directing the jury on how to consider the evidence when rendering its decision. Given the human nature of jurors, a large onus should be placed on trial judges to restrict the admission of bad character at the earliest possible instance rather than relying on adherence to jury instructions to ensure trial fairness.

The common law presumes that juries follow the instructions of the trial judge.[12] In R. v. Gager, another 2020 decision of the Ontario Court of Appeal, the appellant raised issues with the testimony of a detective at trial who was permitted to provide insight into the existence of gangs in Toronto, their structure and organization, and, most problematically, whether the appellant had characteristics of gang membership without opining that he was, in fact, a gang member.[13] Despite it clearly constituting bad character evidence, the Court held that the clear and insistent jury instructions of the trial judge sufficiently mitigated the prejudicial effects of the bad character evidence.[14]

From a legal realist perspective, the notion that jurors can be exposed to bad character evidence and then, at the direction of the trial judge, not rely on it to infer guilt, is illogical. After all, jurors are human and, by nature, emotional beings who inevitably feel the effects of gang-related violence in their communities. However, the proper administration of justice requires a process dedicated to, among other goals, truth-seeking and trial fairness. Achieving these goals necessitates reducing juror exposure to bad character evidence in the first place rather than placing reliance on jurors’ willingness and ability to ‘forget’ evidence suggesting gang membership.

 In Cook, the trial judge told the jury, “You are not allowed to use [the Hell’s Angel evidence] to assume he is guilty of any of these offences, it is context only, it is not safe to make an assumption that he is the kind of person to commit these offences just because of whatever association he had with a club like that.”[15] The Court of Appeal held that characterizing the bad character evidence as “context” did not remove its prejudicial impact, and the jury should not have been permitted to consider the allegations facing the appellant against a backdrop of organized crime.[16] This is the correct approach for mitigating the effects of bad character evidence. Although inferences of the accused being affiliated with a gang may arise incidentally at certain points of the trial, defence counsel and trial judges alike must intervene at the earliest opportunity to prevent further prejudice rather than assuming that jurors can be exposed to a preponderance of bad character evidence and then not rely on it when rendering a decision.

The Subtleties of Bad Character Evidence

Instances of bad character evidence tainting a trial can arise both explicitly and implicitly in the judicial system. In Cook, it is seen explicitly as the trial judge allowed the Crown to adduce multiple photographs that contained clothes associated with Hell’s Angels when there was no other benefit to admitting these images.[17] While the admission of these images explicitly tainted the juror’s perspectives, there was also more implicit bad character evidence found by the Court of Appeal in Cook.

Bad character evidence may enter the courtroom in more subtle ways than the photographs explicitly shown in Cook. At trial, over 15 police officers testified and, through merely introducing themselves, the officers would mention their connection to Biker Enforcement or Organized Crime Units, contributing to the ongoing “Project Batlow” police investigation.[18] When defence counsel raised the issue that this information inadvertently painted the picture of the accused as a province-wide mobster, the trial judge accepted the Crown’s argument that references to the broader investigation were “just the context.”[19] Fortunately, the Court of Appeal recognized this as an error of law that was highly prejudicial to the accused.[20] Evidently, bad character evidence that taints the fairness of the trial can arise inadvertently through subtle, indirect forms. This illustrates the importance of trial judges maintaining a low threshold for allowing bad character evidence without interjecting, before it is overwhelmingly presented to the jury.

Conclusion 

To best further the goals of the Canadian justice system, which include truth-finding and trial fairness, it is imperative that jurors are not tainted by prejudicial information about individuals, such as the fact that they are members of a motorcycle club. This information may infringe an individual's Charter right under s. 11(d) to be presumed innocent until proven guilty, as it may prejudice them.

The prejudicial effects of gang evidence are negatively felt in three main fashions: (1) the logical fallacy that being in a gang, therefore, means they are guilty of the offence; (2) the lack of efficacy that results from jury instructions; and (3) the subtle ways bad character evidence can find its way into the courtroom. These three reasons display why it is important that trial judges prevent bad character evidence from entering the courtroom as swiftly as possible.

[1] Postmedia News, “One-in-five Canadians report being affected by gang violence: Report”, published in the Toronto Sun, September 16, 2024: https://torontosun.com/news/national/one-in-five-canadians-reports-being-affected-by-gang-violence-report.

[2] R v. Bos, 2016 ONCA 443 at para 72.

[3] R v Phan, 2020 ONCA 298 at para 90.

[4] See: R. v. Phan, 2020 ONCA 298; R. v. Gager, 2020 ONCA 274; R. v. Cook, 2020 ONCA 731, and more.

[5] R. v. Cook, 2020 ONCA 731 at para 1 [Cook].

[6] Ibid at para 2.

[7] Ibid at para 23.

[8] Ibid at para 14.

[9] Note: In R v. Phan, 2020 ONCA 298 the Court determined that evidence of gang membership may be admissible as it helped explain the motive behind the crime.

[10] Canadian Charter of Rights and Freedoms, s 11(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982.

[11] Cook, supra note 5 at paras 8-11.

[12] R v Gager, 2020 ONCA 274 at para 98.

[13] Ibid at para 21.

[14] Ibid at para 97.

[15] Cook, supra note 5 at para 64.

[16] Ibid at para 65.

[17] Ibid at para 12.

[18] Ibid at paras 23 and 24.

[19] Ibid at para 25.

[20] Ibid at para 59.