Gang membership and jury bias form the basis for a new murder trial

Questions about how jurors think about gang membership, juror biases and how it all fits into a good defense have led to the overturning of the conviction against Dillon Whitehawk for two drive-by killings in Regina.

Whitehawk was convicted in 2022 of first-degree murder in the deaths of Jordan Denton and Keenan Toto. They were killed in separate incidents three weeks apart, but each time the men were walking outside in the North Central neighborhood when a vehicle stopped and someone inside shot them.

There were three grounds of appeal in the case; the first and only successful one had to do with gang membership.

READ MORE: Regina man charged with murder in three separate deaths over three months

The Crown argued at the trial that Whitehawk was a member of the street gang, the Indian Mafia, and that he killed the two men because he believed they were part of a rival street gang and that killing them would undermine his status in his own gang increase.

Much of the evidence presented by Crown lawyers was gang-related and several of those who testified were members or former members of gangs.

When jurors are selected for trials and inquests, they may be asked questions to find out whether they will be able to serve appropriately and whether they have any ideas or beliefs that prevent them from being impartial.

The judge in the Whitehawk trial allowed potential jurors to be asked a question about racial bias, but did not allow a question to be asked about bias against street gang members.

The judge had said he accepted that most people in Regina are hostile to street gangs as criminal organizations, but did not believe this should disqualify a juror because otherwise a jury would be unlikely to be selected, “law-abiding citizens, which the vast majority are against crime,” he wrote.

The judge also wrote that he believed the jury would be able to set aside the bias.

Crown lawyers have pushed back against the questions, saying gang membership is an offense-based characteristic because it, and the crime that comes with it, are choices.

Whitehawk’s attorneys argued the questions, saying the gang membership was related to his profession, that it touched on issues of race. — the gang was the Indian mafia — his socio-economic class and suggested criminality or a bad personality.

The Court of Appeal judge found, and two other judges agreed, that bias against gang membership was related to Whitehawk’s characteristics or circumstances and was prejudicial in a very direct way. — in consultation with Whitehawk’s lawyers.

“(The prejudice is that) because he was a member of a street gang, he would have been more likely to have committed the murders regardless of whether it was associated with a criminal organization,” Judge Jeffery D. Kalmakoff wrote. .

In his decision, Kalmakoff discussed the background to jury questions and relevant decisions and still came down to an established two-part test.

“A party seeking to challenge jurors for reasonable cause must still demonstrate, on the basis of evidence or judicial notice, that there is a relevant widespread bias or prejudice, and that this is something that jurors may not override can slide, despite the cleaning effect of the process. process,” read the decision.

The judge writes that the judge applied an incorrect legal test to these two parts.

The two convictions were quashed and a new trial ordered.

However, Whitehawk will not be released. He is serving a life sentence for the 2020 murder of Keesha Bitternose.