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Evidence - Narrative Evidence. R. v. N.G.
In R. v. N.G. (Ont CA, 2023) the Court of Appeal considered the evidentiary status of phone 'text messages', which bears of hearsay exceptions for both 'context' ('narrative') and 'admissions':[56] Where an accused person has engaged in a text conversation with another person, the statements by the accused are admissible as an exception to the hearsay rule. The statements by the other party to the conversation are generally admissible only as context − to understand what the accused person was saying − but not for the truth of their contents. But if it is apparent that the accused is adopting the other person’s statements, or the factual premises of them, as true, those statements can also be treated as an admission by the accused and therefore as admissible for their truth: David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013) 11 CJLT 181, at p. 213. . R. v. Abdulle
In R. v. Abdulle (Ont CA, 2023) the Court of Appeal endorsed a jury trial judge's admission of evidence as 'probative' to what sounds to me suspiciously like 'narrative evidence':[13] As explained below, I do not agree that the trial judge erred. His ultimate determination that the probative value of the evidence outweighed its prejudicial effect was not tainted by any error and is entitled to deference.
[14] The six incidents were proffered by the Crown as evidence of a pattern of retaliatory violence between the Tandridge Cripz and the Albion group that culminated in the killing of Mr. Ahmed. The first incident was an alleged assault on Yahya Diblawe on March 10, 2013 by Mr. Monney and other members of the Tandridge Cripz. The second incident occurred the next day, when the brother of one of the Tandrdige Cripz members who was said to have been part of the beating of Mr. Diblawe was stabbed. In the third incident, on March 16, at least six gunshots were fired in a parking lot at the Albion complex and a gold-coloured Acura was seen “peeling out” of the parking lot. The appellant testified that a member of the Tandridge Cripz drove a gold-coloured Acura. The fourth incident was a drive-by shooting directed towards a young Black man walking outside 75 Tandridge Crescent on April 3. The police believe the shooting, in which no one was hit, was in retaliation for the March 16 gunfire at Albion. The fifth incident, on April 18, was another shooting at Tandridge. On this occasion, a man walking on Tandridge Crescent heard someone ask where he was from. He started to run, looked back, and saw two hooded men chasing him while firing a gun. At least 15 shots were fired, one of which hit him in the foot. Surveillance video showed two men emerging from a hole in a fence of a golf course that separated the Tandridge and Albion complexes, and then chase the victim. Surveillance video also showed a Tandridge Cripz member going into a parking garage immediately before the shots were fired and walking in the direction of a car which the gang used to store weapons. Within moments of the shots being fired, the individual ran out of the garage, looked around, then returned to the parking garage. The police interpreted his actions as retrieving a gun from the stash car, and then returning it when he could not locate the shooters. The sixth incident, August 1, was the shooting in Albion of Madhe Hure (an associate of Mr. Ahmed) and Kasim Mohamed (who was with Mr. Ahmed when Mr. Ahmed was shot and killed). A discarded cellphone found nearby linked one of the members of the Tandridge Cripz to the scene.
[15] The trial judge considered the probative value of the evidence of the six incidents to be in demonstrating the existence of animus and gang rivalry between the Tandridge Cripz and the Albion group. This evidence would equip the jury to determine whether there was a rationale for the appellant, as a member of the Tandridge Cripz, to go to Albion to shoot someone associated with Albion because of gang rivalry. Additionally, the evidence had probative value in supporting the expert evidence of Sgt. Nasser, who testified about the structure, operations, and culture of the Blood and Cripz affiliated Toronto street gangs generally, and about the specifics of the Tandridge Cripz, including membership, practices, and ethos. Sgt. Nasser’s testimony included testimony about concepts like gang-controlled territory, and practices such as the use of violence to protect territory, and violent retaliation in response to insult or acts of violence against members or the gang itself.
[16] The appellant complains that the trial judge’s analysis of the probative value of the evidence was not adequate for the purposes of the Handy analysis, and amounted to the bare conclusion that the incidents were capable of providing some circumstantial support for the existence of animus between the two group. The appellant argues that the trial judge did not grapple with his central complaint: that the police officers’ testimony about these incidents amounted to little more than the fact that 911 calls were received and the police attended and made observations at the scene. Their evidence was therefore limited in its scope, and the evidence was not enough to enable the jury to draw the conclusion that these incidents were part of a turf war between gangs, particularly given the trial judge’s ruling that the Crown had not led sufficient evidence to conclude the Albion group was a street gang.
[17] The appellant also argues that the evidence was collateral to the matters in issue and, in any event, the meaning of the incidents was unclear. The appellant argues that even the alleged assault on Mr. Diblawe – the pivotal first instance of violence between the two groups – could not be established on the evidence adduced. The evidence of the assault came from police officers who attended the scene in response to 911 calls and found Mr. Diblawe in a rental unit with members of the Tandridge Cripz. Mr. Diblawe denied to police that he had been assaulted, which denial the Crown characterized as further evidence supporting the theory that this was an instance of inter-gang violence. At trial, defence expressed frustration at the limited available means to challenge this evidence, given that Mr. Diblawe was not a witness, nor were any of the members of the Tandridge Cripz who were believed to have participated in the assault.
[18] I do not agree that the trial judge erred in characterizing the evidence of the six incidents as having probative value. With respect, the value of the evidence – particularly when viewed as a whole – was obvious and did not require any further elaboration than what the trial judge provided. Although the evidence of each incident, considered separately, certainly left many questions unresolved, these particulars were relatively unimportant for the purpose for which the evidence was put. The salience of the evidence was in establishing a pattern of gang-related violence, in tandem with the expert evidence provided. It was not necessary that the incidents be proved to the degree that would have been required if an individual were being tried for an offence related to any particular incident. The evidence of the six incidents had value in assisting the jury to evaluate the competing claims of whether the appellant shot Mr. Ahmed as a result of a tragic misunderstanding during a drug deal, or whether, as the Crown argued, it was neither a drug deal nor a random and inexplicable act of violence, but part of a larger cycle of gang violence. This was evidence needed by the jury to put the shooting into context: R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 93. . R. v. R.M.
In R. v. R.M. (Ont CA, 2022) the Court of Appeal considered an issue of prior consistent statements in a jury trial, and - in the course of that - illustrates how evidence may be use for purposes of 'narrative', but not for truth. When tendered for truth the prior consistent statements should have been subjected to a voir dire to decide admissibility:[47] The appellant argues that the evidence of the complainant’s prior statements to her parents about the alleged sexual assault should not have been admitted into evidence as they were prior consistent statements, and in any event, should have been the subject of a voir dire on admissibility prior to the evidence being led.
[48] The Crown agrees that there should have been an admissibility voir dire in relation to the complainant’s prior consistent statements disclosing the alleged sexual assault, but argues that the evidence was properly admissible as narrative, and the trial judge properly instructed the jury as to its limited use.
[49] I agree with the Crown that in the circumstances of this case, the prior statements were properly admissible as narrative.[2] The trial judge gave an appropriate limiting instruction to the jury about the use of the prior consistent statements. That instruction included that the prior consistent statements could not be used for the truth of their contents, and that repetition did not make something more likely to be true. The trial judge also instructed the jury that the only purpose for which they could use the prior statements was “as part of the narrative; that is to help you understand the flow of events.”
[50] As the trial judge belatedly recognized, and as both appellate counsel agree, the prior statements should have been the subject of a voir dire prior to being admitted. The starting point with prior consistent statements is that they are not admissible, subject to various exceptions: R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at paras. 96-100. As such, the party seeking to tender prior consistent statements, in this case the Crown, should seek a ruling on admissibility prior to tendering such evidence. However, as the evidence was properly admissible as narrative in this case, and a limiting instruction was given to the jury, I see no reversible error. . R. v. Ellis
In R. v. Ellis (Ont CA, 2022) the Court of Appeal considers 'narrative evidence':[26] Narrative evidence that is necessary to understand the sequence of events surrounding an alleged offence and is not tendered for the truth of its contents is permitted: R. v. Camara, 2021 ONCA 79, 400 C.C.C. (3d) 490, at para. 55.
[27] This was not hearsay or opinion evidence: it was narrative evidence that was neither improper nor unfairly prejudicial. The Crown was simply outlining the evidence that would be adduced (and was adduced) at trial so that the jury would understand the sequence of events that would be unfolded.
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