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| John L. Hill |
One of the accused admits discharging a firearm but claims that he was acting in spontaneous self-defence. The trial judge is unable to conclude which of the two charged with first-degree murder actually fired the fatal shot. A jury concludes the shooting was second-degree murder; it was not planned and deliberate. The accused is sentenced to life imprisonment without parole ineligibility for 15 years. The accused appeals, but the appeal is dismissed. Why?
That is the condensed version of a matter that was recently decided by the Ontario Court of Appeal (R. v. Abdulle 2023 ONCA 32). Two aspects considered on appeal give us some guidance how our criminal courts will respond when the charge relates to gang-related violence.
Police wanted to introduce evidence that Abdulle was a member of the Tandridge Cripz gang who invaded the neighbouring Albion group in order to inflict retribution in an ongoing turf war. Police planned to introduce the lyrics to rap songs recorded by the Tandridge Cripz showing an intention to seek vengeance for past wrongs.
As well, the police wanted to introduce evidence of ongoing gang-related activities between the Cripz and the Albion group even though Abdulle was in custody at the time. In order to keep the lyrics out, and trying to minimize the effect of past gang activity, Abdulle made serious admissions.
He acknowledged membership in the Tandridge Cripz; the group was a criminal organization; he dealt drugs — crack cocaine and heroin and used the gun in drug trafficking for protection; he had a criminal record for threatening, and assault on a peace officer.
He made the admissions knowing the risk of moral reasoning prejudice from jurors but calculated the risk would be increased with the sins of fellow gang members paraded before a jury. He wanted jurors to believe he had acted in self-defence and that his actions should not be perceived as part of an ongoing war between rival groups.
Abdulle proposed that evidence of prior incidents of discreditable behaviour should be weighed in light of the test set out in R. v. Handy 2002 SCC 56: does the probative value outweigh the prejudicial effect? The tactic was partially successful. The trial judge found the admission could allow exclusion of prejudicial rap lyrics but the jury was entitled to have knowledge of the ongoing gang rivalry.
Such information could provide a rationale for a member of the Tandridge Cripz to go to Albion and shoot a rival. The Appeal Court held that the test in Handy was met in that it allowed a jury to put the shooting into context. It allowed a jury to conclude the shooting was not an act of random violence but part of a larger cycle of gang violence.
Indeed, the Appeal Court held that the prejudice for increased moral reasoning prejudice was low since Abdulle’s conceded being a party to criminal acts including being armed while trafficking in drugs. The evidence was relevant and admissible for the purpose of providing a historical context of interactions between the groups and establishing a motive for violence. Even though the trial judge had made the rap music lyrics inadmissible, Abdulle’s resiling from his admissions allowed him to be cross-examined on them when he took the stand in his own defence.
Where the trial judge did err was that he failed to take into consideration concerns for systemic anti-Black racism. Even though the sentencing had occurred prior to release of the decision in R. v. Morris 2021 ONCA 680 and no presentence report had been ordered, there is an obligation to consider evidence of how the offender came to commit the offence for the court’s better-informed assessment of background, character and potential in sentencing.
Even though there were letters and material filed showing Abdulle had suffered some measure of anti-Black racism, the court found the penalty imposed was not out of line.
It would appear that the Ontario Court of Appeal has given police wide latitude for establishing motive in guns and gangs cases. The admission of criminal behaviour by Abdulle did not save him from the intolerance in a society upset with reports of random shootings and gang activity. Can the end result be chalked up to a tactical error in choosing trial by jury or making those shocking admissions?
Perhaps the rationale for this outcome is that justice is the authoritative imposition of societal norms. A very prevalent societal norm is that the public is just fed up with guns and gang violence.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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