CHAPTER 4: HUMAN SCIENCES

4:10 Domestic Violence

R v. Hutt, 2013 CarswellOnt 12609 (Ont. S.C.J.)

Crown Expert: Deborah Sinclair

Mark Hutt was charged with first degree murder of his wife Donna Jones. Investigation into her horrific death revealed she had been brutally abused by the accused for many years. The Crown sought to call Deborah Sinclair, an expert proffered to provide opinion evidence on “the definition and forms of domestic violence, as well as the dynamics of an abusive relationship including traumatic bonding, coercive control, and the behaviour of victims of domestic abuse.” [at para. 3]

Part way through the voir dire on Sinclair’s qualifications and the admissibility of her evidence the defence conceded that she was qualified and her evidence was admissible.

The Court held: “that she was a qualified expert and that her evidence relating to domestic violence was admissible.”

The Court’s ruling on the admissibility of this evidence was summarized in a ruling dealing with five pre-trial motions. One of these motions was for the admission of other discreditable conduct of the accused. The conduct in question was of the emotional, psychological and physical abuse carried out by the accused in relation to the victim over the course of their relationship. In ruling that the evidence was admissible, the Court noted referred specifically to aspects of the evidence that Ms. Sinclair was qualified to give evidence on:

•    the types of domestic abuse;

•    the types of control exerted by an abusive partner;

•    why a victim may chose to remain with an abusive partner. [at paras. 31 and 37]

This highlights the importance of the timing of such rulings as a ruling on the admissibility of expert evidence may also provide a basis for other arguments in relation to other pre-trial motions.

R. v. Knott, 2014 CarswellMan 145 (Man. Q.B.)

Defence Expert: Dr. Kolton

Knott was charged with the second degree murder of her spouse. At trial she argued that she was the victim of the deceased’s repeated verbal and physical abuse. Knott argued that she met the definition of a battered woman and was suffering from post-traumatic stress disorder at the time the incident. She argued that in stabbing her spouse she was acting in self-defence. The Crown argued that Knott acted out of anger and vengeance and therefore had the requisite intent for murder. [at paras. 2-5]

Dr. Kolton was qualified as an expert and permitted to give opinion evidence about post-traumatic stress disorder caused by domestic violence. Dr. Kolton opined that the:

disorder and her experience impacted her perceptions of threat and danger. The accused appeared to fit the profile of somebody entrenched in a cycle of violence and suffering the impacts of repeated trauma. Her decisions to stay with the deceased for an extended period of time and to return even after she had left can reasonably be explained by factors that are characteristic of someone in a violent relationship. [at para. 42]

Dr. Kolton also provided evidence on cycles of abuse in domestic relationships and how this can impact on the victim’s perception of danger and commented on the fact that Knott did not flee as support for her belief that she felt justified in her actions. [at para. 44]

The Court accepted Dr. Kolton’s evidence finding it to be fair and balanced [at para. 78]. However, the Court noted that:

[t]he fact that the accused was a battered woman does not entitle her to an acquittal. Battered women may well kill their partners other than in self-defence. The focus is not on who the accused is, but on what she did. [at para. 81]

Ultimately, Knott was found to have been acting in self-defence and was acquitted. [at paras. 153-154]

4:20 Drugs Trade

R. v. Breau, 2019 CarswellNS 386 (N.S. S.C.)

Crown expert: Corporal Markovic

Breau was charged with unlawfully possessing cocaine for the purpose of trafficking. Breau was arrested for being intoxicated in a public place and a search incident to arrest revealed that he had 23 grams of cocaine, divided up into 28 baggies and 405$ in cash. Beau was not in possession of a cell phone, scales, scoresheet or other drug paraphernalia. [at paras. 1-3]

At trial the Crown called Corporal Markovic and he was qualified on consent as an expert and permitted to give opinion evidence on the following aspects of the drug trade:

(a)    pricing,

(b)   storing and packaging,

(c)    methodology of purchase and sales;

(d)   payment methods; and,

(e)    usage amounts. [at para. 22]

Corporal Markovic’s training and experience was described as follows:

Corporal Markovic has been qualified as a drug expert on twelve prior occasions. He has eight years of experience in drug and gang investigations. Corporal Markovic detailed his experience with undercover operations, search warrants, handling drug exhibits, and confidential informants. [at para. 23]

Corporal Markovic testified that “traffickers package cocaine in small dime bags and pre-measure baggies to facilitate sales. Users have no reason to subdivide their purchase into small bags.” [at para. 26]

Corporal Markovic also testified about the following points:

•    The typical amount for a single use is about a gram which can be divided into 8-12 lines of cocaine.

•    If a user is on a binge the personal use amount could be as much as two to three grams

•    Some users also sell

•    Some sell to support their habit

•    It is unusual for a purchaser to buy more product that one would use because cocaine is highly addictive

•    It would be a poor decision to buy an once broken into small baggies as the quality would be less

•    In his experience a user would not normally buy 28 bags of cocaine

•    Street level dealers do not usually have scoresheets

•    Normally a dealer would have a cell phone but it was not unheard of [at paras. 25-41]

In cross-examination a hypothetical was put to the expert

Importantly, Corporal Markovic agreed that if he knew the accused had in fact received a settlement and come into money, and this was his first day in Halifax, this could weaken his opinion, as these would be factors he would have to consider. He agreed it could be possible the amount purchased was for the accused’s personal use, but maintained that it is atypical to meet a dealer for the first time and purchase that amount. He said it was highly unlikely but could not say this absolutely would not have happened.

Lastly and importantly, with this new set of circumstances put forward, that is an accused who had come into funds, and was new to an area, Corporal Markovic said he was less certain of his opinion that the accused had possession of cocaine for the purpose of trafficking. He testified that the circumstances were still consistent with possession for the purpose of trafficking, but accepted that it was possible that this was not the case. [at paras. 45-46]

Ultimately, the court relied on the expert testimony and acquitted the accused of trafficking and found him guilty of the include offence of simple possession.

The Court summarized it’s reliance on the expert evidence in reaching this decision as follows:

I accept that the accused purchased drugs in a large quantity. I accept his evidence that this was because he did not know how long he would be in Halifax, he had cash available, and he was in Halifax to party and take drugs. I accept his evidence, despite the evidence of the Crown’s witnesses about the common use habits of addicts, the risk of buying in this manner, the fact that bulk purchases are done for better quality and lower price, and are not packaged in the way the accused’s drugs were found, in a number of dime bags. I accept his evidence because of his consistency, his ready admissions, and the fact the Crown’s expert candidly acknowledged that his account, while unusual, was not implausible.

The Crown’s expert, Corporal Markovich, agreed that if he had known that the accused had come into money, and that the purchase was made on his first day in Halifax, this could weaken his opinion that the drugs were possessed for the purpose of trafficking. He agreed that it was possible that the amount purchased was for the accused’s personal use, but said it was atypical to meet a dealer for the first time and purchase that amount. But he could not say this absolutely would not have happened.

Lastly and importantly, with this new set of circumstances put forward, the Crown expert said he was less certain it was trafficking. He testified that the circumstances were still consistent with trafficking, but accepted that it was possible that it was not trafficking. This further adds to the credibility of the accused’s evidence. [at paras. 81-83]

R. v. Bhatti, 2018 CarswellBC 2532 (B.C. S.C.)

Crown Expert: Constable Morris

Bhatti was charged with a number of offences relating to the possession and trafficking of methamphetamine, heroin and fentanyl.

The Crown sought to adduce the evidence of Constable Morris and have him qualified as an expert. The proposed area of expertise was identified as follows: “methods of packaging and concealment, methods of distribution, methods of sale, methods and rates of consumption, prices, drug jargon and slang all pertaining to methamphetamine, heroin, and heroin/fentanyl” [at para. 2]

A voir dire was held to determine the qualifications of the officer, the admissibility and scope of the opinion evidence.

The defence objected to the introduction of this evidence on what the Court identified as a narrow point namely, that “this case involves an accused with a longstanding addiction and a consumption habit involving substantial quantities of the drugs in question.” [at para. 18]

The Court summarized the defence position as follows:

The defence suggests that Cst. Morris has little or no experience with that particular type of addict and that, therefore, while he may be qualified to make general observations in a certain context, his observations will be of little utility to the court when it comes to dealing with an addict of the particular sort described. The evidence is therefore of little use, it is submitted, and from a cost-benefit analysis should not be entertained. [at para. 19]

The Court concluded that Constable Morris was a qualified expert and would be permitted to proffer opinion evidence in the areas identified by the Crown. The Court held:

I have no doubt that Cst. Morris is properly qualified to give expert testimony on the subject proposed by the Crown in this case. His experience is very similar to that of the police officer qualified as an expert in the Dominic case. He has arrested hundreds of drug users and several dozen drug dealers. He has gained valuable insights and information on the subject in question from confidential informants, first-hand surveillance, and personal involvement in the investigation, evidence, and handling of many dozens of drug cases in Prince George and the surrounding area over many years. He has prepared expert opinion reports on 20 different investigations and has been formally qualified at least twice in the B.C. courts as an expert witness qualified to express opinions related to various aspects of the drug trade.

The other three Mohan criteria are clearly satisfied in this case. The topics of the proposed testimony are clearly relevant to the charges of possession of controlled substances for the purposes of trafficking.

The evidence is also necessary. Although judges gain a general knowledge of the drug trade by exposure to various cases they try, such matters do not amount to judicial notice. Rather, the expert testimony is required to provide the court with tools to appreciate the trial evidence and to draw inferences where appropriate from relevant findings of fact.

No exclusionary rule has been identified by the defence as a basis for excluding the proposed expert opinion testimony. [at paras. 14-17]

Notwithstanding the defence concerns the evidence was admitted.

R. v. Pierce, 2018 CarswellNun 19 (Nun. C.J.)

Crown Expert: Constable Bowskill

Pierce was convicted of possession of cocaine for the purpose of trafficking and possession of proceeds of crime. Pierce came to the attention of police of police in Iqaluit and ultimately a search warrant was executed on his residence. The following items were seized:

a.     Three hundred and ninety-two point eight (392.8) grams of cocaine;

b.     Four (4) grams of cannabis marihuana;

c.     Two (2) grams of cannabis resin;

d.     One (1) pill;

e.     Seven thousand dollars ($7,000) cash;

f.     Items of drug paraphernalia including score sheets, digital scales, cellular telephones, and grinder;

g.     14 plastic bags containing the cocaine, all weighing approximately 1 ounce each; and

h.     Nine (9) one (1) gram bags. [at Appendix A]

Constable Bowskill was qualified as an expert and provided opinion evidence on the street value of drugs in Iqaluit. Constable Bowskill opined that:

in the city of Iqaluit in 2016 the price for one gram of powdered cocaine was $200. This means that the value of the cocaine seized, if sold by the gram, is approximately $78,560. If sold per ounce, it would amount to approximately $56,000. [at para. 5]

Pierce was sentenced to 36 months in the penitentiary.

R. v. Bhatti, 2018 CarswellBC 2532 (B.C. S.C.)

Crown Expert: Cst. Dan Morris

Bhatti was charged with possession of methamphetamine, heroin and fentanyl for the purposes of trafficking. At trial the Crown sought to adduce the expert evidence of Cst. Dan Morris to provide opinion evidence on “methods of packaging and concealment, methods of distribution, methods of sale, methods and rates of consumption, prices, drug jargon and slang all pertaining to methamphetamine, heroin, and heroin/fentanyl.” [at para. 2]

The defence objection to the officer being qualified as an expert related to a narrow point, namely: that this “case involves an accused with a longstanding addiction and a consumption habit involving substantial quantities of the drugs in question.” [at para. 18] Thus, the ‘usual’ amounts found on persons who are not addicts may not accord with the personal amount an addicted user would carry. And ultimately for an addict the amount possessed for personal use could be far more than the amount possessed by a recreational user.

The defence argued that since:

Cst Morris had little or no experience with that particular type of addict and that, therefore, while he may be qualified to make general observations in a certain context, his observations will be of little utility to the court when it comes to dealing with an addict of the particular sort described. [at para. 18]

The Court held that:

[t[his precise argument was also raised in the Dominic, 2016 CarswellAlta 690 (Alta. C.A.) case where it was submitted by the defence that the expert’s area of expertise did not extend to drug users such as the accused Dominic who were on bail at the time cocaine was consumed. That argument gained little traction with both the trial court and the Court of Appeal. It gains little traction with me and, in my opinion, is not sufficient to disqualify Cst. Morris from providing expert testimony on the areas identified. [at para. 20]

Cst. Morris was qualified as an expert.

R. v. Reid, 2017 CarswellOnt 10386 (Ont. S.C.J.)

Crown Expert: Detective Constable Charlie Rau

Reid was charged with a number of offences relating to production and trafficking of marihuana. At trial the Crown sought to have Detective Constable Charlie Rau qualified as an expert on possession for the purpose of trafficking in cannabis marihuana, including production, valuation and the trafficking thereof.

The defence opposed the qualification of the proposed expert for three reasons. First, the evidence is unreliable. Second, the methodology employed is weak. Third, that Detective Constable Rau’s level of expertise were insufficient.

At the time of the voir dire into his qualification Detective Constable Rau was:

•    A member of the OPP since 2005

•    A member of the Community Drug Action Team for the County of Huron between 2010 and 2013

•    A member of the Drug Enforcement Unit since 2013

•    involved in 150 marihuana cultivation investigations

•    involved in marihuana investigations involving grams to many pounds

•    involved in interviewing and debriefing marihuana users

The Court concluded that:

[t]he Crown has established on a balance of probabilities that the proposed expert evidence of DC Rau is admissible. His experience in the world of drug investigations and interactions with drug users, coupled with his training, is sufficient to permit his qualification as an expert in cannabis marihuana use and behaviour including consumption rates. [at para. 43]

R. v. Kossick, 2017 CarswellSask 435 (Sask. Prov. Ct.)

Crown Expert: Cpl. Dalton Marciniuk

In August 2016, Kossick was charged with possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime under $5,000. When he was arrested, police seized 3.82 grams of methamphetamine, two cell phones and $90 in cash. At trial, the Crown called Cpl. Dalton Marciniuk to provide expert opinion evidence in the following areas:

1.     The methods of packaging distribution, and pricing of methamphetamine

2.     The general patterns of usage and effects and the observable signs of usage of methamphetamine; and

3.     The language, jargon, paraphernalia, offence-related property and proceeds of crime connected to the possession, use, trafficking and distribution of methamphetamine. [at para. 2]

Defence opposed the qualification of Cpl. Marciniuk in the following areas:

1.     The interpretation of text messages recovered from Kossick’s phones.

2.     The officer’s opinion on the “general patterns of usage and purchase of methamphetamine”, the presence or absence of paraphernalia, and seized money.

3.     The interpretation of cell phone communications. [at para. 4]

As part of Cpl. Marciniuk’s evidence on the voir dire the two expert reports he prepared were tendered as exhibits.

Although Cpl. Marciniuk’s had never been qualified as an expert the court described his qualifications as extensive and took considerable care detailing them:

Cpl. Marciniuk earned a human justice degree from the University of Regina, a criminal justice diploma with honours from the Lethbridge Community College and an arts and sciences degree from the University of Saskatchewan.

Cpl. Marciniuk has been a member of the RCMP for 17 years. Since September 2014, he has been posted to the Saskatoon Police Service, Integrated Crime North Section, and is currently a member of the Saskatoon Integrated Drug Enforcement Street Team [SIDEST]. His duties include participating in Controlled Drugs and Substances Act [CDSA] investigations into street level and mid-level drug traffickers. His daily duties include meeting with confidential human sources, surveillance, and preparing judicial authorizations and executing search warrants. He has also taken on the role of lead investigator, affiant, exhibit officer and file manager.

As a member of the RCMP, he served in a number of Saskatchewan detachments in La Ronge, Melfort, Ile a la Crosse and Meadow Lake. While in La Ronge, between 2008 and 2014, he focused on serious and habitual offenders with drug addictions and gang affiliations. He gained experience in identifying major drug dealers in Northern Saskatchewan, and their methods of conducting illicit activities related to street gangs. He also served as supervisor/investigator during that assignment.

The corporal has extensive drug enforcement training, regarding the effects of drug use and addictions; trends in importation, production and distribution and dangers of fentanyl and carfentanyl in British Columbia; preparing expert opinion reports and conducting thorough possession for purpose investigations; production of methamphetamine; surveillance techniques; investigating organized crime groups associated with trafficking large quantities of illicit drugs; obtaining judicial authorizations; identifying street drugs based upon appearance, street names, drug use paraphernalia and street jargon; identifying grow operations; working with confidential informants; concealment, packaging and pricing of drugs.

Cpl. Marciniuk has given presentations to probation staff, educators, medical students, nurses and young people regarding street drugs including methamphetamine.

His drug investigation experience has involved varying amounts of methamphetamine. He has executed CDSA search warrants; he has interacted with undercover operators and observed their purchase of controlled substances. As a member of SIDEST he conducts investigations on street level drug trafficking involving differing drug amounts and cash. He has observed drug traffickers deal controlled substances and has seen some of the methods used to package and distribute controlled substances. He has observed dial-a-dope transactions and has investigated such operations. He has observed drugs, packaging and items used in trafficking, production, presses and concealment. He has conducted lengthy surveillance of drug trafficking, observing techniques used to sell drugs to customers. He has been responsible for seizure of evidence, including drugs, money and other articles relevant to an investigation.

The corporal is a regular contact for confidential human sources, and has knowledge of current drug trends, packaging, street pricing, usage concealment, storage, trafficking methods, phone lingo, codes and street terminology, and ways of administering illicit drugs.

Cpl. Marciniuk’s CV also details a number of notable investigations in which he has been involved. For example, as a member of Project Forseti, he monitored wire transmissions, including phone calls and text messages. He participated in a number of investigations related to various levels of methamphetamine trafficking, which allowed him to observe trafficking patterns and methods of concealment, associated paraphernalia and currency, and dial-a-dope operations. [at paras 7-14]

The court concluded that Cpl. Marciniuk would be qualified in the following areas:

1.     Methods of packaging, distribution and pricing of methamphetamine;

2.     Observable signs of usage of methamphetamine;

3.     Language, jargon, slang and terminology commonly used by sellers and buyers of methamphetamine, limited to his understanding of the meaning of those terms and phrases in the methamphetamine drug culture, along with any contextual factors that may assist the Court;

4.     Paraphernalia, offence-related property and proceeds of crime connected to the possession, use, trafficking and distribution of methamphetamine, except with respect to his opinion regarding the absence of consumption tools, as referenced in paragraph 14 of Exhibit P-2 and his opinion regarding the absence of scales, as referenced in paragraph 16 of P-2. [at para. 47]

Justice Scott concluded however that the officer would not be qualified in the following areas:

General patterns of use and consumption of methamphetamine as referenced in paragraphs 5(b) through (e) of Exhibit P-2;

His conclusion whether the accused was in possession of the methamphetamine for the purpose of trafficking it, as referenced in paragraph 15 of Exhibit P-2;

His interpretation of entire conversations derived from cell phone messages, as set out in the “opinion specific to this case” column in paragraph 12 of Exhibit P-2 and throughout Exhibit P-3;

His interpretation of conversations derived from cell phone messages as referenced in paragraph 16(1) of Exhibit P-2. [at para. 48]

R. v. Baker, 2017 CarswellNfld 195 (N.L. T.D.)

Crown Expert: Constable Robert Strong

Baker plead guilty to the possession of marijuana for the purpose of trafficking. The matter proceeded to sentencing and as part of those proceedings the Crown tendered the expert report of Constable Robert Strong.

Constable Strong’s report opined that the 62 pounds of marijuana seized from Baker “has a street value of $560,000 if sold at the gram level and $155,000 to $271,000 if sold at the mid-level dealer level”. [at para. 5]

The expert report also detailed the officer’s opinion that “the amount of marijuana, the manner of packaging, the absence of other articles in the bags, and the manner of transportation” established without a doubt that the possession of the marijuana was for the purpose of trafficking. [at para. 5]

The expert report was admitted on consent and accepted unequivocally by the trial judge. [at para. 5]

R. v. Abdella, 2016 CarswellOnt 17291 (Ont. S.C.J.)

Crown Expert: Detective Daniel Hutchings

Abdella was charged with trafficking heroin. The person he sold heroin to was the target of a Toronto Police Service Part VI wiretap authorization.

The Crown’s case against Abdella was entirely circumstantial:

based wholly on circumstantial evidence of the intercepted communications involving Hanad Aden from May 15, 2014 to May 26, 2014 with an unknown female in which coded language was used to arrange transactions involving the purchase of drugs, as well the observations made by the surveillance officers leading to the meeting of Hanad Aden and Ganno Abdella in his motor vehicle May 26, after which he was found in possession of 6.32 grams of heroin and she was in possession of $700. [at para. 8]

As part of the case mounted against Abdella, the Crown called Detective Daniel Hutchings and sought to have him qualified as an expert. The Court accepted the officer as an expert and described his qualifications and expertise as follows:

Detective Daniel Hutchings, Supervisor of the Toronto Police Service Drug Squad East with more than 15 years’ experience as a drug investigator and undercover officer was qualified as an expert to comment on the chain of distribution, pricing, sale methodology, consumption, preparation, packaging, purity, paraphernalia and modus operandi of street level to moderate level of trafficking of heroin and powder and crack cocaine, and the use of guarded or coded language by drug traffickers in relation to drug trafficking. [at para. 17]

Det. Hutchings reviewed the intercepted communications and detailed the “guarded and coded language.” Nine intercepted calls were reviewed by the officer and in each he opined about what was meant by some of the language used. Call 7, is an example of the content of the call the officer’s interpretation:

Call Seven – May 26, 2014 at 11:40 a.m.: Aden called the unknown female asking “what’s up” in reference to his request the day before for “the same thing”. Her response was “ . . . you know the problem is I don’t have the key to the other house and someone else has the key to . . . to the other place and the stuff is in there. I called him yesterday um . . . he said he wasn’t around.”

Detective Hutchings indicated that the female was telling Aden that she had not been able to get access to the drugs because the person who had the key to the stash house was not available. Then the female said that she would call “the person” to see if he could give her the key to get the stuff/drugs at the stash house. [at paras. 26-27]

The expert also provided an opinion about the value of the drugs in question.

Det. Hutchings testified that 6.32 grams of heroin in the possession of Aden would sell for approximately $900 to 1000, however, it could sell for more or less by a couple of hundred dollars depending on the quality, the relationship between the seller and the buyer insofar as it may be a continuing arrangement the dealer seeks to maintain, or because of the price paid by the dealer to acquire the drug. That quantity could sell for $700.00. Also, the quantity was an amount beyond that of a user, but an amount a mid-level dealer would sell to a street-level dealer. [at para. 32]

The Court accepted the expert’s evidence and concluded that the “only rational inference that can be drawn from the circumstantial evidence is that the accused trafficked 6.32 grams of heroin to Aden and received $700 in payment.” [at para. 64]

R. v. South, 2017 CarswellMan 11 (Man. Prov. Ct.)

Crown Expert: Adam Hourde

Dylan South was charged with possession of a substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substance Act. The drug in question was “shatter”. The charges arose out of the execution of a search warrant that led to the discovery of the following items:

•    1,120g of marihuana – valued at $6,500.00;

•    89 – 1g envelopes of shatter – valued at $7,120.00;

•    1oz of shatter – valued at $2,500.00;

•    $1,610.00 in cash;

•    score sheets;

•    a cellular telephone; and

•    packaging materials.

South pleaded guilty. At sentencing the Crown called Adam Hourde, a police officer with the Winnipeg Police Service. The court explained Hourde’s background in drugs:

Over the course of his 10 year career with the Winnipeg Police Service he has participated in a number of drug related training courses and has been involved in multiple investigations into drug trafficking including several that had to do with shatter. He was personally in attendance at four labs where shatter was produced. He has worked at the Winnipeg Police Clandestine Lab Unit and took a course where he was able to make the drug shatter. [para. 6]

Hourde provided evidence that shatter is a cannabis resin which contains two to three times more tetrahydrocannabinol [THC] than marijuana typically contains. Hourde also testified about the normal amount and nature of sales involving shatter. Its production included the use of solvents such as butane or pentane and involves a “cooking” process. The court noted the following in relation to this issue:

Shatter labs are notoriously dangerous because of the potential to explode. Butane is highly explosive because it can only be stored under compression. Butane is the solvent that is generally used to make shatter, but other similar pressurized solvents can be used as well. A butane explosion can cause walls to be blown out. It is very dangerous to dismantle a shatter lab. [para. 9]

Hourde also testified that shatter is on the rise in Canada and about how it is consumed. Shatter costs between $50 to $100 per gram.

One of the issues the court considered on sentencing was how to treat shatter under the CDSA. The court offered the following in this regard:

The Court does not agree that this matter is akin to a Schedule I substance. In R. v. Bercier, 2004 MBCA 51 (Man. C.A.), Hamilton J.A. said, “The distinction in the maximum sentences imposed by Parliament for Schedule III and Schedule I drugs (ten years versus life imprisonment respectively) must be given meaning.” In my view, it would be an error to treat shatter like a Schedule I substance. Nor does the Court find that the method and dangers of production are aggravating factors as there is no evidence that Mr. South was involved in production. However, the Court cannot overlook the high level of THC in relatively small amounts of the drug. Shatter has more concentrated THC than marihuana. While defence counsel asserts users will require less quantity of this higher quality drug to obtain similar effects, the danger of over use is substantially higher when using even small amounts.

Therefore, shatter is more dangerous than marihuana. Also aggravating is the large amount of shatter which is the equivalent of approximately a kilogram of marihuana before it is cooked into shatter. This would mean that each gram of shatter would be akin to selling a ¼ ounce of marihuana in each envelope. This attracts a higher sentence than a gram level dealer. [para. 29]

R. v. Cook, 2014 CarswellAlta 599 (Alta. Prov. Ct.)

Crown Expert: Constable Gains

Cook was charged with possession of cocaine for the purposes of trafficking and possession of marijuana (under 30 grams). Cook alleged that his Charter protected right to be free from unreasonable search and seizure and arbitrary detention had been violated. The trial proceeded in a blended manner with evidence on the Charter voir dire applying to the trial proper.

Cook was pulled over in his motor vehicle. The officer who stopped him smelled a very strong odour of raw marijuana. The officer arrested Cook. Upon arrest the officer did a quick search of his detainee and found several hundred dollars in cash and marijuana in Cook’s pants. The odour of marijuana persisted from and the officer called for assistance. The vehicle was searched by police with the benefit of a drug sniffing dog both at the roadside and at the police detachment. The search revealed:

(a)    A black backpack, from behind the centre console of the truck;

(b)   7 apparently equal individually wrapped packages of cocaine, totalling 2 grams (located by the dog);

(c)    7.5 grams of marijuana;

(d)   Digital scale and 100 gram weight;

(e)    Samsung cell phone;

(f)    iPhone;

(g)   $1,235.00 in cash.

Cst Gains was qualified to give expert evidence on: “pricing, packaging, paraphernalia, and habits and practices of users and traffickers in the trafficking and distribution of cocaine.” [para. 53]

Cst Gains was of the opinion that the cocaine was not for personal use but rather for the purpose of trafficking.

Cst. Gains opined that it would be unusual for an individual to have packaged the durgs in this way merely for personal use. The fact that several cell phones were found and the presence of a lot of cash were consistent with trafficking.

The officer’s evidence was summarized by the Court as follows:

Constable Gains’ opinion was that this collection of facts was not consistent with personal use: a user would not have 7 packages, but would make one single purchase; a user would not carry a scale, but would be practiced at assessing the value of a purchase by its apparent size; a user would be unlikely to be carrying that much cash, nor to be carrying two cell phones. He did acknowledge that some of the facts he considered could well have innocent explanations. For example, some people may have a personal cell phone and a second cell phone for (legitimate) work; a person could possibly carry that much cash for innocent reasons; a user could conceivably carry around a scale (although he insisted that would be unlikely, as even a user buying in bulk wouldn’t be dividing up his purchase in his vehicle). He also acknowledged that there was no evidence of “score sheets” being seized, but noted those are only relevant to a seller advancing credit to purchasers. He also agreed that there was no evidence that either cell phone rang during the arrest or search process (one might expect a busy trafficker to receive constant calls), although neither was it clear from the evidence whether either phone was turned on, or who turned it off, if it was off. [para. 54]

The Court was not impressed with some aspects of the officer’s testimony. In particular, the Court found that:

Constable Gains’ tendency to paint all cocaine users with the same brush (as addicts out of control in their use) was unfortunate, and negatively affected his credibility. Nevertheless, his evidence in general was credible, cogent and reasonable. [para. 56]

Cook was convicted.

R. v. Navales, 2014 CarswellBC 592 (B.C. S.C.)

Crown Expert: Peter Sadler

Sadler was charged with three counts of unlawful possession of heroin, cocaine and ecstasy for the purpose of trafficking and unlawful possession of a 9mm handgun. All of the items were discovered in an apartment where police were executing a search warrant. Navales was the only person home at the time police executed the warrant; he was sitting on the couch when police entered.

The street value of the drugs was about $14,000 and an additional $2,000 cash was found. The handgun was found in one of the eight safes located around the apartment. An identification card, a passport, a traffic ticket and other documents all in Navales’ name were located in the apartment.

The police gained intelligence about the apartment through surveillance of a number of street level dealers including BH and DC.

The Crown’s argued that:

Knowledge and control of all drug and drug-related paraphernalia located throughout the apartment including the items contained in the gun safe is the only reasonable inference on the evidence, which includes:

1.      Mr. Navales’ occupancy of the small apartment, which was a stash house;

2.      his connection to the drug trafficking group; and

3.      expert evidence that only a very trusted individual (boss or trusted lieutenant) within the drug trafficking operation would be permitted to be the person living at the stash house. [para. 28]

The defence argued that although Navales occupancy of the apartment might be inferred, he did not have exclusive use. [para. 29]

The Crown called Vancouver Police Sergeant Peter Sadler- his qualifications as an expert in the “areas of the price, packaging, distribution and use of heroin, cocaine and ecstasy, and use of firearms in the drug trade.” [para. 48]

Sergeant Sadler testified that the apartment was:

. . . being operated as a stash house for a dial-a-dope drug trafficking operation, of mid- to upper-level, in terms of its scope and sophistication. This was based upon many factors, including the quantities and types of drugs, the presence of bulk amounts of drugs not consistent with personal use, lack of indicia of personal use of drugs, his interpretation of the scoresheets (which indicated multiple shifts of street level dealers), and the presence of large quantities of packaging materials, scales, cash, safes, and the firearm. [para. 49]

The officer further offered that:

. . . an operation of this level of sophistication and organization would typically have a hierarchy of participants. These could include: a “boss”, that is, the person in charge of the operation; one or more senior, trusted lieutenants; and the “worker bees”, that is, the street level drug traffickers, such as B.H. In his view only the boss would have access to the bulk supply of drugs and the firearm. [para. 51]

During the course of Sgt Sadler’s testimony in chief the Crown asked whether “he boss would permit an individual to reside in the stash house without that person being aware of the nature of the operation, that is, that the residence was functioning as a hub for a drug trafficking operation. [para. 52]

The defence objected to the question arguing that it was impermissible as it went to the ultimate issues. The trial judge ruled that the question was allowed and the concerns of the defence would go to weight and not admissibility.

Interestingly, in the written reasons, the trial judge reconsidered this position and held that:

Based upon the decision of the Supreme Court of Canada in R. v. Sekhon, 2014 SCC 15 (S.C.C.), this evidence should not have been admitted. I therefore give no weight whatsoever to Sgt. Sadler’s evidence in this respect. [para. 53]

The Court made the following findings of fact:

1.      the Homer Street apartment was used as a stash house (a hub, or centre of operations) for a mid- to upper-level dial-a-dope drug trafficking operation;

2.      Mr. Navales was the sole occupant of the Homer Street apartment, having moved there from the Broadway apartment on or about March 13, 2011;

3.      Mr. Navales was a participant in the drug trafficking operation, though his precise role or roles is unclear;

4.      Mr. Navales was in possession of the heroin, cocaine and ecstasy found in the living room and bedroom on April 21, 2011; and

5.      whether Mr. Navales was in possession of the contents of the gun safe in the storage closet is open to reasonable doubt. [para. 87]

Navales was convicted of possession of the drugs for the purpose of trafficking and acquitted of possession of the firearm.

R. v. Smith, 2013 CarswellOnt 4453 (Ont. S.C.J.)

Crown Expert: Detective Constable Valiquette

Smith was charged with two counts of possession of cocaine for the purpose of trafficking. The London police executed a warrant on an apartment after Smith became a suspect following a break and enter. The purpose of the warrant was to search for stolen property taken during the break and enter.

Police surveilled the apartment and noted both Smith, sometimes alone and sometimes in the company of others coming and going for short periods of time from the apartment. These observations were made over the course of some 4.5 hours.

When police executed the warrant they secured the occupants Smith and his son and located the following items:

•   A ripped portion of a clear plastic bag, initially thought to be more like a piece of Saran Wrap than a baggie, and open on discovery, containing a substance which a NIK test and further analysis later confirmed to be 0.9 grams of crack cocaine. (Analysis confirmed that this particular substance also contained traces of a Schedule F drug, regulated under the Food and Drugs Act, called “Phenacetin”.) The substance on the plastic was loose and open when discovered. Officer McGugan located the substance and plastic in plain sight, on a shelf in the bedroom, approximately five feet off the ground, at shoulder height.

•   A knotted and clear plastic “baggie”, containing a substance later confirmed to be 5.2 grams of cocaine, (with no traces of Phenacetin). The cocaine therein was described as being “in one chunk”, and not broken down into smaller pieces. Officer Lipskey indicated that he discovered this baggie lying in plain sight in the middle of the floor of the hallway, just inside the entrance to the apartment, between the apartment door and the bedroom door (. . .)

•   A clear zip lock sandwich bag, containing 5.0 grams of a substance initially thought by the police to be powdered cocaine, but which analysis later confirmed to be Acetaminophen, (the equivalent of Tylenol). Officer Lipskey located this in plain sight on an end table in the living room area. The contents of that bag were not subjected to a “NIK” drug test kit while the police were still in the apartment.

•   A digital weighing scale, bearing a white residue which analysis later confirmed to be crack cocaine, (with traces of Phenacetin). Officer Lipskey located this in a closed kitchen cabinet drawer. (Nothing else of interest was located in the drawer.) [para. 26]

Officer Valiquette was called as an expert witness with ‘considerable’ knowledge “relating to the possession of controlled substances for the purpose of trafficking, and of crack cocaine in particular.” [para. 33]

Officer Valiquette was of the opinion that the drugs found in the apartment were there for the purpose of trafficking. Officer Valiquette based his opinion on the following:

•   The quantity of cocaine found within the apartment, (a total of 6.1 grams), was extremely significant, and had a “large bearing” on his opinion, for at least three reasons:

•   First, given the very addictive quality of crack cocaine, it was very unusual for those using (but not dealing or selling) the drug to maintain it in such large quantities. Users tended to keep using it until their supply was exhausted.

•   Second, even extremely heavy crack cocaine users would consume no more than 3.5 grams per day — and such heavy users and addicts normally have exhausted all of their monetary resources feeding their habit. As a result, they rarely have sufficient funds to purchase quantities of crack cocaine in such an amount — in this case, cocaine having a street value of approximately $610.00. Although some higher level suppliers will “front” dealers with supply, without payment up front, this normally would be true only for dealers who have established their ability to sell rather than consume the drug. In this particular case, the accused was an addict but admittedly on methadone, which confirmed that he was trying to control his habit, and which would have mitigated his individual use.

•   Third, the quantity of drugs and cash found in the apartment equate to 6.1 grams of cocaine, and the monetary equivalent ($70) of a further 0.7 grams of cocaine. The combined total of grams (6.8) comes very close to the 7.0 gram quantity in which higher level suppliers frequently sell their product to dealers.

•   The surveillance indications of frequent entry and exit from the apartment, with visits of short duration, as well as the presence of people other than the dealer at the time of warrant execution, (as customers frequently linger for a time to reduce the possibility of observers thinking they are not “real” visitors), was consistent with situations of trafficking.

•   The absence of plastic packaging in the apartment was a neutral consideration, as low level suppliers frequently use no packaging, (e.g., supplying it out directly by hand or in other objects such as currency), to assist in avoiding detection by police or others who might attempt to “rip them off”.

•   Trafficking was suggested by the presence of the digital weigh scale, (which dealers often use to ensure appropriate quantification of packages for consumers), and the absence of any noticeable drug paraphernalia suggesting use within the apartment. [para. 35]

Ultimately, the trial judge concluded that notwithstanding the officer’s expert opinion the court was not satisfied beyond a reasonable doubt that the drugs were intended for trafficking. The court instead convicted Smith of the lesser included offence of possession. [paras. 65-66]

R. v. Roussel, 2014 CarswellAlta 572 (Alta. Q.B.)

Crown Expert: Sergeant Jason Ian Gibson

The Royal Canadian Mounted Police executed a search warrant and Roussel’s residence. The search turned up “09 grams of cocaine in two ziploc bags inside a tupperware container on the floor in a basement closet; two rifles and a prohibited device stored in separate cases behind his furnace; and a set of brass knuckles wrapped in a paper towel in a kitchen cupboard.” [para. 1]

Roussel admitted that he knew about some of the items on the premises but had no knowledge of others. Roussel:

. . . acknowledged ownership of nine grams of cocaine and three grams of marijuana found on the upper levels and 25,326 cigarettes packed in two unopened cardboard boxes sitting in an open area on the basement level. The search also produced a large number of items which drug dealers routinely utilize in their businesses. Mr. Roussel admitted ownership of the scales, dime or jewel bags and denied any knowledge of the ziploc bags found in his kitchen. [para. 1]

The Crown argued that:

Roussel must have known that the cocaine and the weapons found in his home were in his home. The cocaine was in a tupperware container on the floor in a closet that was readily accessible to Mr. Roussel. While the two rifles were stored in the furnace room and were less conspicuous than the tupperware container, they were in a room Mr. Roussel would have had to enter to check on his furnace and hot water heater. [para. 7]

In contrast the defence argued that Roussel was an addict and that the items belonged to Mr. Harry would was using Roussel’s residence as a stash house.

Sergeant Gibson was qualified as an expert and permitted to give opinion evidence “on a number of topics, including the practices and habits of cocaine traffickers and users.” [para. 42]

The Court accepted all of Sergeant Gibson’s evidence which was extensive. The officer testified about

•   The extensive cocaine distribution network in Canada [para. 45]

•   There is a hierarchy and price of product correlates to level of distribution [para. 46-50]

•   Street level product is not pure and adulterant are added to maximize profits [para. 48-51]

•   Cocaine can be consumed in a variety of ways [para. 53]

•   The drug selling business requires specific equipment which varies according to the level in the hierarchy. [paras. 54-55]

•   Drug dealers use weapons [para. 56]

•   Drug dealers keep records [para. 57]

•   Drug dealers need and use cell phones to run their business [para. 60]

The Court concluded that:

The Crown has proved beyond a reasonable doubt that Mr. Roussel knew the 209 grams of cocaine, the Ruger and the CZ858 Tactical rifles were in the basement and the approximately nine grams of cocaine were on the upper level of his residence where they were found by the RCMP on May 31, 2011. The Crown has also proved beyond a reasonable doubt that the accused knew he had brass knuckles in his kitchen. In addition, as these items were in his home and readily accessible, he had the capacity to exercise control over them. The accused could have asked Mr. Harry to remove them from his residence at any time. He also intended to exercise control for a blameworthy purpose. The Court concludes that the accused possessed the 209 grams of cocaine for the purpose of trafficking. Mr. Harry owned this cocaine and used it in his business. Mr. Roussel knew this. [para. 132]

R. v. Clark, 2013 CarswellMan 743 (Man. Q.B.)

Crown Expert: Corporal Sue Vasas

Clark was charged with possession of cocaine for the purposes of trafficking and possession of a restricted firearm. The Crown sought to qualify Corporal Vasas as an:

expert in the customs and practices of the illegal cocaine trade in Winnipeg. In particular, they asked for an order permitting her to provide expert opinion evidence in the following areas:

•   methods of cocaine distribution generally;

•   methods of trafficking generally and specifically trafficking in cocaine across the country;

•   cocaine distribution networks;

•   the value and pricing of varying amounts of cocaine; and

•   quantities of drugs sold for personal use versus trafficking. [para. 1]

Defence objected to Corporal Vasas being qualified as an expert arguing that:

•   she lacked independence

•   her evidence invited a conclusory opinion on the ultimate issues

•   she did not prepare the report on which the Crown was relying [para. 2]

The Court ruled that Corporal Vasas was a properly qualified expert permitted to give evidence on each of the four areas identified by the Crown. [para. 2]

First, the Court concluded that the evidence was relevant.

I am satisfied that, in the present case, a cost benefit analysis weighs in favour of finding that the proposed evidence is relevant. The Crown’s case is circumstantial. Accordingly, the court will be called upon to consider whether the whole of the evidence proves the alleged offences beyond a reasonable doubt. Logically, the court must be apprised of the indices of the distribution and trafficking cocaine and related matters in order to properly assess the evidence. This information is not within the knowledge or expertise of the court and is not evidence of which the court can take judicial notice. As well, it cannot be said that allowing the evidence to be called would involve an inordinate amount of time; it is not misleading; and it will have no prejudicial effect in the circumstances of this case, nor will it distort the fact finding process. This is particularly so where, as here, the trial is by judge alone. Rather, the proposed evidence simply provides a reference point to consider the other evidence before the court. I am satisfied that it is both relevant and probative. [para. 7]

Second, the Court held that necessity was made out.

The necessity test is not an overly onerous one. Provided the expert opinion is likely to be outside the experience and knowledge of a judge or jury, the necessity test is met. Certainly here, the expert opinion evidence goes well beyond simply being helpful which is not sufficient in order for the test to be met. If received, the trier of fact will be in a much better position to assess the evidence and be more likely to form a correct judgment about the matters in issue if aware of the customs and practices of the illicit cocaine trade.

Furthermore, there is unlikely to be other evidence on the point to assist the trier of fact, it is not overly complex and is easily understood. [para. 8]

Third, the Court found that there was no exclusionary rule barring the admissibility of the proposed evidence. [para. 9]

Fourth, the court held that Corporal Vasas was a properly qualified expert. On this point the defence argued against the admissibility of the proposed expert’s evidence because it is based on study and experience rather than “scientific” research [para. 11]

The Court soundly rejected this argument “that view does not accord with the prevailing law. Indeed, such a narrow interpretation would exclude all kinds of expert evidence that is regularly admitted by Canadian courts and on which trial judges and juries rely on a daily basis.” [para. 11]

The defence’s main argument was that the officer lacked independence that:

by virtue of the fact that Corporal Vasas is a member of the same police agency that investigated the accused and because she knew some of the officers involved in varying capacities, she lacked the necessary independence to give expert opinion evidence at trial. [para. 18]

The Court noted that:

Corporal Vasas was firm in her evidence that she did not consider herself to be in a conflict of interest. She flatly denied any of the numerous suggestions put to her that her independence was compromised by such things as her relationship with her fellow officers; that she might wish in some way to curry favour with any superior (or as was more frequently the case) any inferior officer; that she assumed Mr. Clark was guilty of the offences with which he was charged and saw it as her job to assist in getting a conviction, to mention just a few. I accept all of the answers she provided at face value and note the absence of any evidence to the contrary. [para. 21]

Ultimately, the Court found Corporal Vasas to be an independent expert witness.

R. v. Mulaj, 2014 CarswellOnt 10133 (Ont. S.C.J.)

Crown Expert: Detective Norm Redmond

Mulaj was charged with a number of offences including trafficking and possession for the purpose of trafficking crack cocaine. [para. 1]

Mulaj was with Placide when he was arrested. Placide had sold 1.4 grams of crack cocaine to an undervocer police officer. Placide was arrested and a further 1.4 grams of crack cocaine was found on him. Mulaj was arrested and 4.3 grams of crack cocaine was found on him.

The Crown sought to qualify Detective Norm Redomond as an expert on various drug related issues. The defence agreed that Det. Redmond had the requiste expertise as it related to “the pricing, packaging, distribution and general effects of consumption of crack cocaine.” [para. 5]

The defence however challenged the admissibility of the proposed evidence about “the patterns and rates of consumption, and inferences to be drawn from the absence, on Mr. Mulaj’s person, of any tools for consumption.” [para. 5] The defence argued that the officer was not qualified to provide evidence on such matters.

The Court agreed and held that:

Detective Redmond’s evidence in relation to the consumption patterns in crack cocaine is anecdotal in nature, and largely relates to knowledge which he acquired over two years as part of the Lowertown Foot Patrol core in which he served in nine years ago. The Crown has not satisfied me, given Detective Redmond’s somewhat dated exposure to users, coupled with his lack of related education or consultation with related fields of expertise, that he is qualified to opine on consumption patterns pertinent to the accused in this case, nor on whether such consumption evidence might vary according to the accused’s tolerance, weight or health. In short, I am not satisfied that Detective Redmond’s considerable experience would qualify him to furnish evidence on the disputed subject matters. [para. 46]

Moreover, the Court questioned whether the proposed evidence was legally relevant or even necessary.

Notwithstanding these conclusions the Court saw:

no reason to preclude him from speaking to his actual observations of consumption by users, so long as he does not seek to elevate his observations to suggest any general rule of thumb that would have application from user to user. In my opinion, without more education or support from related fields of expertise, this area of discussion is beyond Detective Redmond’s qualifications. Such evidence would suggest the “superficial attractiveness” that Newbury J.A. is said to have properly rejected in Sekhon, at para. 50.

Lastly, the Court held that:

Detective Redmond’s proposed opinion as to the absence of any tools for consumption found on the person of Mr. Mulaj, offered up as indicia of possession for the purpose of trafficking, is entirely unnecessary and therefore fails to meet at least one of the Mohan criteria. This is the kind of evidence on which I require no expert guidance. It is a matter on which I can draw my own conclusions based on the totality of the evidence. Further, its probative value is of little benefit to the trial process. To afford it easy admission would, in my opinion, be to assist in relieving the Crown of its burden of proof. [para. 51]

R. v. Georgiev, 2013 CarswellBC 3571 (B.C. C.A.)

Crown Expert: Sarita Jaswal

Georgiev was convicted of production of methamphetamine, possession for the purpose of trafficking in methamphetamine and possession of compounds for the purpose of production of methamphetamine. [para. 1]

Georgiev was sentenced to five years to be served consecutively to a sentence of three years and eight months. Georgiev appealed both convictions and sentence. Legal Aid was provided for the sentence appeal but not for the appeal of the convictions. Georgiev applied to the Court of Appeal for the appointment of counsel. In assessing this application the Court considered the ground of appeal and, among other things, the merits of the appeal.

The main ground of appeal related to the trial judge’s use of the expert evidence of Ms. Jaswal, a chemist employed by Health Canada.

Ms. Jaswal “gave expert evidence regarding all aspects of the production of methamphetamine by the red phosphorus method.” [para. 5] At trial, the defence argued that there was evidence of past production not present production. The trial judge concluded that there was indeed evidence of present production.

In assessing whether the Court of Appeal should appoint counsel Bennett J.A. assessed the merits of the ground of appeal.

First, the Court rejected the argument that Ms. Jaswal’s evidence should not have been admitted as she was too close to the investigation. Bennett J.A .noted that there was no objection at trial to the admissibility of the expert opinion evidence and in the Court’s opinion the evidence “clearly reaches the threshold test for admissibility.” [para. 19]

Second, the Court rejected the argument that the trial judge placed too much weight on the opinion evidence which did not rise above anecdotal. Bennett J.A. held that his:

reading of Ms. Jaswal’s evidence does not lead me to the suggestion that her evidence is “anecdotal” in the sense described by Madam Justice Newbury in her dissenting opinion in R. v. Sekhon, 2012 BCCA 512 (B.C. C.A.) (leave to appeal filed, [2013] S.C.C.A. No. 7 (S.C.C.)) [para. 30]

Ultimately, Bennett J.A. concluded that there was no arguable ground of appeal and dismissed the application for the appointment of counsel. [para. 31]

R. v. Abugattas-Osorio, 2014 CarswellOnt 16117 (Ont. S.C.J.)

Crown Expert: Constable Aaron Sheedy

Abugattas-Osorio was charged with importing cocaine into Canada. At trial the Crown sought to have Constable Sheedy qualified as an expert in the pricing and value of cocaine through Pearson Airport.

The defence opposed the application and argued that although the proposed evidence is relevant, it is unduly prejudicial, unreliable and that the officer is not a properly qualified expert. [para. 9]

With respect to relevance the Court concluded that the proposed evidence was relevant and necessary.

The Crown intends to rely upon it to submit to the jury that cocaine valued at between $59,500.00 and $187,000.00 would not be left in the possession of an unknowing courier. The Crown argues that the value of the cocaine is an important consideration for the jury in the circumstances of this case. [para. 10]

(. . .)

I am content that the evidence is necessary; the jury would not otherwise know the value of almost 1.7 kilograms of cocaine. The principle defence is one of knowledge. The evidence of value will not be of an inflammatory nature such that its prejudicial value is outweighed by its probative value. On a cost-benefit analysis, Constable Sheedy’s evidence will take little time to provide to the jury. [para. 12]

Finally, the Court concluded that “Constable Sheedy has the necessary ”special or peculiar knowledge through study or experience“ related to the matters on which he was asked to testify.” [para. 22]

R. v. Jackson, 2015 CarswellOnt 8546 (Ont. S.C.J.)

Crown Expert: Detective Constable Tiffany Castell

Jackson was charged with possession of cocaine for the purpose of trafficking and assault. Jackson was arrested at a WalMart for theft and in a search incident to that arrest including “1.8 g of marijuana, 15.43 g of crack cocaine, two cell phones, $153 in Canadian currency, a package of gum, identification cards, lip balm, and two sets of keys.” [para. 2]

Jackson pled guilty to possession of the contraband but contested the trafficking aspect. In support of that charge the Crown sought to tender the expert opinion evidence of Constable Castell. Her qualifications were subject of a contested voir dire, which procedurally counsel agreed that if the trial judge admitted the evidence, the voir dire evidence would apply to the trial proper.

The basis for Constable Catell’s qualifications as an expert were described as follows:

Constable Castell was offered as an expert based upon her street-level experience, combined with enhanced and specialized knowledge that she has gleaned from the five or six courses that she has taken as part of her training relative to (i) undercover work, (ii) the preparation of search warrants, and (iii) practices and procedures that need to be followed by drug investigators. She has also attended the advanced undercover officer’s course. She has been recognized and previously testified as an expert before our courts. She has also attended other symposia to enhance her ability to testify as an expert before our courts, including receiving training regarding expert evidence: what expert evidence is, how to prepare a resume of her qualifications as an expert, how to prepare expert reports, and how to testify before the court as an expert. [para. 10]

The Court found that her credentials were obviously significant, however the court was concerned about the purpose for which the crown was eliciting her evidence.

Plainly, the Crown intended that her testimony provide an evidential foundation, based on her experience in purchasing drugs from street-level vendors, that the purpose of Mr. Jackson’s possession of 15 g must be for trafficking. That is, stated another way, that possessing a quantity of 15 g is inconsistent with personal use, and thus necessarily would lead the court to conclude that the possession of that quantity of cocaine must be for the purposes of trafficking. Such a conclusion was presumably intended to serve as the foundation for the court to be satisfied beyond a reasonable doubt that the “purpose” element of the offense was made out and that a conviction could safely be entered against the accused. [para. 12]

The court’s concern was about the:

evidentiary value and sufficiency of the evidence that was to be offered by Detective Constable Castell in all of the present circumstances, regardless of her qualifications as an expert or whether she was accepted as such on the tests articulated in Mohan. [para. 14]

The Court raised the concern with counsel and a procedure was agreed upon to allow the parties to address the concern. This procedure was described as follows:

Crown counsel provided me with a succinct list of the evidence that she anticipated would be elicited from D.C. Castell if she was to be accepted as an expert and have her evidence accepted in its entirety. She did so on the basis that that evidence, as listed, would in the Crown’s view provide the evidential foundation that would permit me to find that the “purpose” element of the offence of possession for the purposes of trafficking is met to the criminal standard. However, it was then agreed that I would hear and receive submissions from both counsel on that list. After hearing those submissions, if in my view that evidence revealed no basis, or only an equivocal basis, upon which the evidence relative to purpose could give rise to a conviction of possession for the purposes of trafficking, then the inquiry would proceed no further and an acquittal would be entered. [para. 15]

Ultimately, the Court concluded that:

In my view, the issue in this case is a simple one. This accused was found in possession of 15.34 g of crack cocaine. The only evidence that the possession of that cocaine was for the purpose of trafficking is proposed to be derived from the expert opinion of the police officer, based upon her experience and perhaps 100 transactions over the course of more than three years, in which she concludes that one would not normally expect to see personal users of crack cocaine in possession of the quantity that was present in this case. That said, it is not an egregious quantity, one which could never possibly be held for personal use. As such, there is more than one reasonable inference that can be drawn from the expert evidence, even if admitted. There are two reasonable inferences that can be drawn, even though one of them may be applicable most of the time.

Because of the procedural approach in this matter an acquittal was entered without a ruling on whether the expert evidence was admissible or not. [paras. 25 and 29]

R. v. Singh, 2014 CarswellOnt 15688 (Ont. C.A.)

Crown Expert: Sergeant Robert Ruiters

Officials of the Canada Border Services intercepted 53kilograms of cocaine concealed in a commercial trailer driven by Singh, the driver of the vehicle. Singh was convicted after trial and sentenced to 12 years imprisonment. He appealed both conviction and sentence.

Singh was intercepted at the border when the trailer of the truck he was driving was subject to an x-ray examination at the Canadian border. When the x-rays revealed suspicious contents Singh was directed to break the seal on his load. He did so. Among the electronic equipment in the trailer were two boxes containing 53kg of cocaine. Footprints were found on the boxes containing electronics and fingerprints were found on the drug packaging. Neither matched Singh.

At trial the issue was whether Singh knew that the cocaine was in the trailer. The Crown tendered two expert reports at trial. The authors of the reports were not called as witnesses.

The first report dealt with the estimated value of the seized cocaine. No issue was taken by the defence with the contents of this report at trial or on appeal.

The second report authored by Sergeant Robert Ruiters of the Royal Canadian Mounted Police “addressed the use of commercial vehicles for the transportation of contraband, including drugs” (the “Ruiters Report”). [para. 9]

On appeal Singh contested the “propriety of the trial judge’s reliance on certain of the opinions expressed in this report” [para. 9]

The majority of the Court of Appeal explained Sergeant Ruiters’ title and the admission of his report at trial as follows:

Sergeant Ruiters is the National Program Manager and Co-ordinator of a national highway criminal interdiction and contraband seizure program operated by the RCMP and other Canadian law enforcement agencies. His report was admitted at trial without objection by the defence on the basis that the appellant intended to testify and, as defence counsel put it, would “[present] evidence in due course in order to address some of the factual premises laid out . . . within the report”. Sergeant Ruiters’ qualifications to offer the opinions contained in the Ruiters Report were accepted by the defence. Sergeant Ruiters did not testify and was not cross-examined on the contents of the Ruiters Report. [para. 16]

The majority of the Court of Appeal described the opinions in the Ruiters’ Report as being in one of two categories. First, opinions of a general nature about the overland transportation of illegal commodities. Second, case-specific opinions.

The general opinions addressed:

(1)    the use of commercial vehicles by organized criminal groups to transport large amounts of contraband, particularly drugs;

(2)    the role of drug couriers used by such groups to facilitate the transportation and delivery of contraband; and

(3)    what Sgt. Ruiters described as “normal trucking industry practices”. [para. 17]

Although the general opinions:

touched in part on a commercial truck driver’s suggested knowledge of the contents of cargo loaded in his or her vehicle and, hence, on the likelihood of the driver’s knowledge of any illegal contraband contained in his or her loaded cargo, they were not directed at the actual circumstances of the appellant’s case or his alleged knowledge of the drugs ultimately found in his vehicle. [para. 21]

Some of the case specific opinions “bore directly on the appellant’s credibility and his alleged knowledge of the cocaine in his vehicle.” [para. 22]

On appeal Singh argued that:

(. . .) the trial judge erred by relying on Sgt. Ruiters’ evidence to test the appellant’s version of events and to determine the ultimate issue whether the appellant knew of the cocaine found in his vehicle. As set out in his factum, the appellant maintained that Sgt. Ruiters’ opinions on these issues “relied upon speculative associations to organized crime, objective standards of mens rea and reversals of the burden of proof”. According to the appellant, rather than cautioning himself against the use of these inadmissible opinions, the trial judge relied upon them, both to reject the appellant’s evidence and to support the Crown’s case. [para. 25]

The majority of the Court of Appeal agreed that “the trial judge erred in his treatment of certain of Sgt Ruiters’ evidence, in particular, by relying on Sgt Ruiters’ case-specific opinions.” [para. 29]

The majority of the Court noted that the:

general opinions stand in stark contrast to the case-specific opinions expressed by Sgt. Ruiters (. . .) In my opinion, his case-specific opinions on: (1) the appellant’s alleged association with organized criminal elements; (2) his knowledge of the cocaine in his trailer; and (3) his credibility, strayed beyond the proper scope of expert evidence. These opinions were inadmissible and highly prejudicial to the appellant. [para. 37]

Ultimately the majority of the Court concluded that a new trial was warranted. Laskin J.A. dissenting would not have allowed the appeal.

R. v. Friesen, 2014 CarswellBC 3996 (B.C. S.C.)

Crown Expert: Cst. Robin Chritchley

Friesen and Ridout were both charged with production and possession of marihuana. Police had a house under surveillance for several months when a Crime Stoppers tip along with the odour of fresh marihuana coming from the residence confirmed their suspicions. Police obtained a warrant and found all the accoutrements of a full fledge grow-op along with 404 marihuana plants.

The Crown sought to tender expert evidence from Cst. Chritchley. Following a contested voir dire, the officer was qualified as an expert and permitted to offer opinions on matters related to the illicit production and sale of drugs.

The primary objection to the expert’s qualifications related to bias and lack of experience as an expert witness. The application judge held that those factors would be considered when assessing the weight of his evidence. [para. 18]

Ultimately, the court concluded that:

[h]aving heard Cst. Chritchley’s evidence and having assessed his credibility and knowledge of the marihuana marketplace in the Sooke area as of 2011, I accept his opinions as to the illicit production, packaging, sale, distribution, use, pricing, slang, and jargon relating to marihuana. The evidence is very strong to support that the production found at the residence was for the purpose of trafficking and there was no realistic possibility that the production found in the residence was for personal use or even personal medical use. [para. 19]

In dealing with the issue of bias the court held that:

An expert witness is expected to be unbiased and independent, since his or her function is to present evidence of a particular activity that would not be known to the average person. Indeed, an expert is expected to assist the court and not be an advocate.

Upon hearing his evidence, I was very satisfied with his knowledge and qualifications, as well as his willingness to be frank and honest in answering questions. I accordingly find no bias on the part of Cst. Chritchley. [paras. 25-26]

R. v. Khalili-Arabi, 2013 CarswellOnt 13144 (Ont. S.C.J.)

Crown Expert: Cst. John Johnston

Khalili-Arabi was charged with assault and drug related offences. Cst. Johnston was qualified as an expert and permitted to give opinion evidence on issues relating to the drug trade. [at para. 36] The expert evidence revealed the following:

•    sale of drugs in grams or less equates with street level trafficking;

•    sale of drugs in ounce amounts to mid-level trafficking;

•    sale of drugs in kilos amounts to high level trafficking;

•    the 24 gram seizure in this case would cost about $1,300-1,600 wholesale and would yield $4,000-$6,000 if sold in gram amounts at the street level. [at paras. 36-37]

In cross-examination, the expert agreed that:

that it is possible that a heavy user could buy cocaine in a one ounce amount in order to reduce costs, however, he had never heard of this happening. A heavy user would normally buy an “eight ball”, that is, about 3.5 grams, or perhaps as much as 1/4 ounce. An addict needs about 16 to 20 “hits” a day. A “hit” is about 1/4 gram and there are about two to three “hits” in each 1/2 gram purchase. A social user of cocaine would not consume anywhere near these amounts. It was D.C. Johnston’s opinion that the eight separate 1/2 gram baggies were not consistent with personal use of the cocaine. Similarly, keeping a large amount of cash in a room, together with the cocaine, was not consistent with personal use. [at para. 39]

The Court accepted the expert evidence and found that Khalili-Arabi was in possession of cocaine for the purpose of commercial trafficking. [at para. 155]

4:30 Gangs and Slang

R. v. Weeden, 2019 CarswellOnt 6501 (Ont. S.C.J.) Crown Expert: Officer Greg Hoffman

Crown Expert: Sergeant Richard Duffus

Weeden was charged with 14 offences relating trafficking guns and drugs. Weeden was also charged with conspiracy along with Forrester, Simpson and McGregor in the trafficking of drugs and or guns.

All the men were charged as a result of a significant police investigation nicknamed “Project Sizzle”. The Project obtained a number of wiretap authorizations. In an effort to assist the Court in understanding some of the content of the intercepted communications the Crown tendered expert evidence.

Officer Hoffman was qualified “as an expert on the classification, identification and functioning of firearms, ammunition and ammunition magazines and common firearm related terms.” [at para. 34]

Officer Hoffman’s qualifications were not challenged. The following is an example of the type of evidence Officer Hoffman provided:

Weeden described to McGregor a gun he had for sale as a “G-19”, he was referring to a Glock pistol, model 19. When Weeden told McGregor that he had one of these guns “with 10 in the handle” and another “with 15 in the handle”, he was referring to the size of ammunition magazines that fit within the handle of a G-19. [at para. 35]

The trial judge found this evidence compelling as: “gun that was found in McGregor’s apartment was a Glock, model 19, with a magazine capable of holding 15 bullets in the handle.” [at para. 35]

Sgt. Richard Duffus was also qualified as an expert. The Crown sought have Sgt. Duffus qualified as an expert “in cocaine and in marijuana in its various forms, from leaf to ‘shatter’.” [at para. 40]

Defence challenged only one aspect of Sgt. Duffus’ qualifications. The defence argued that Sgt. Duffus lacked the necessary qualifications to opine on ‘shatter’. Sgt. Duffus testified on the voir dire and offered the following:

“Shatter” is a relatively new way in which cannabis is processed, sold and consumed. It involves super-heating active ingredients into a toffee-like substance which, when dry, is brittle and can “shatter” into pieces. This form of cannabis was not generally part of the drug market back when Sgt. Duffus was working undercover. It has risen in popularity over the past ten years. Sgt. Duffus testified that “shatter” is generally associated with drug dispensary sales rather than street trafficking. Policing of drug dispensaries is assigned to a special unit at the Toronto Police Service and is not generally policed by Sgt. Duffus’ unit, and therefore Sgt. Duffus does not have much personal experience with shatter. [at para. 39]

Ultimately, the Court concluded that

Sgt. Duffus is a properly qualified expert, as a very experienced drug enforcement officer, to provide this evidence to the court. But I would not call him an “expert” on shatter, per se (a reservation that Sgt. Duffus, himself, seemed to share). [at para. 40]

However, the Court went on to find that Sgt. Duffus could provide the court with information about what shatter is. [at para. 42]

Sgt. Duffus was also permitted to use a “Drug Lexicon” that he prepared with this case in mind. The Court accepted this “Drug Lexicon” “as setting out Sgt. Duffus’ opinion about drug language and guarded or coded language used in the Toronto drug trade at the times material to this case.” [at para. 43]

R. v. Ahmed, 2013 CarswellOnt 7704 (Ont. S.C.J.)

Crown Expert: Officer David Walker

Ahmed was charged in a shooting. Over the course of the trial an eyewitness, Ryan Malcolm, testified and disclosed for the first time the he knew who the shooter was and that it was the accused. Previously Malcolm had given a statement to police where he claimed that he did not know who the shooter was. When asked to explain why he had changed his story Malcolm testified that:

He had lived in the Lawrence Heights neighbourhood at the time of the shooting. He subsequently moved out of the neighbourhood. He testified that he did not want to be labeled a ‘snitch’ or a ‘rat’ by speaking to the police and identifying the person who had shot the victim. He testified that in his experience, people who gave information to the police were beaten up or shot. He testified that he was warned not to go to court to testify. [para. 4]

Following his testimony the Crown filed a notice of intention to adduce expert evidence and provided a copy of Officer Walker’s CV. The Crown sought to have Officer Walker offer evidence “to show that there was a code of conduct prohibiting speaking to the police.” [para. 5]

The Crown had not provided notice prior to trial as required by the Criminal Code and explained that the reason was because the necessity of an expert was not in play until Malcolm had testified inconsistently with his police statement. The defence opposed the introduction of this evidence.

The Court held that:

[t]he proposed expert evidence in this case meets the requirements set out in the first stage of the inquiry. Evidence of a ‘code of silence’ has been the subject of expert opinion in other cases. I am satisfied that the proposed witness is qualified to give expert opinion evidence on this subject. The evidence is not subject to any exclusionary rule and the proposed evidence is logically relevant to the credibility of Ryan Malcolm. [para. 16]

Notwithstanding, these findings at the first stage of the inquiry, the court was not satisfied that the evidence was admissible.

The evidence does not meet the requirements of the second stage of the inquiry. This evidence is not necessary for the jury to assess the credibility of Ryan Malcolm. Mr. Malcolm testified about the existence of the code of silence. He was not challenged on his assertion that such a code existed. He was challenged on the veracity of his current version of events. It was suggested to him that his original statement to the police was true and that the victim, his brother, had influenced him to change his story and implicate Mr. Ahmed.

The existence of the ‘code of silence’ is not in issue in this trial except in the most tangential way. The potential prejudice from the introduction of this evidence in the context of this case is significant. There is no evidence that the accused has any ties to street gangs. The evidence relating to the code of silence would inevitably raise the issue of gangs in the Lawrence Heights area. This evidence would be confusing and distracting and would create a risk of the jury speculating about gang involvement in this offence. Where, as here, the jury is fully equipped to assess Mr. Malcolm’s evidence without the benefit of expert opinion evidence, the probative value of the evidence is substantially outweighed by its potential prejudicial effect. [paras. 17-18]

The Crown application was dismissed.

R. v. London, 2017 CarswellPEI 1 (P.E.I. C.A.)

Crown Expert: Corporal Lane

London was convicted after trial for possession for the purpose of trafficking drugs. He appealed the conviction. At trial the only issue was identification.

At trial the Crown tendered: 83 text messages to and from three cell phones over the course of a two-day period. The text messages between London and an individual named Roscoe:

indicated that whoever was sending the messages from London’s phone was seeking permission to return product (marihuana and/or methamphetamines) to a stash house. The reply message from Roscoe’s phone was that he had permission to return product “around 8:30.” [at para. 4]

To explain some of the contents of the text messages the Crown proffered Corporal Lane as an expert witness. Corporal Lane was qualified “to give expert evidence concerning, amongst other things, drug jargon and code words used in the drug underworld.” [at para. 4]

Corporal Lane testified that:

A stash house, said Corporal Lane, is a safe place for drug traffickers to store their drugs, cash and other drug paraphernalia. Corporal Lane’s evidence was that traffickers do not refer to the address of the stash house preferring instead to use the name of something close to the stash house so as not to give away the actual address of the stash house. Normally a stash house would be inhabited by a trusted friend who would not draw police attention. [at para. 5]

In dismissing the appeal the Court relied on the contents of the text messages, as explained by Corporal Lane, as confirmatory of the other identification evidence.

R. v. Vu, 2013 CarswellOnt 1583 (Ont. S.C.J.)

Crown Expert: Michael Press

Vu was charged with robbery with a firearm, possession of marijuana for the purpose of trafficking and attempted murder. All of the offences arose out of what was described as a drug transaction gone bad.

In a pretrial motion, the Crown sought to have Michael Press qualified as an expert to give opinion evidence of the issue of firearm identification as well as the interpretation of slang, street and coded language pertaining to firearms, motor vehicles and related terminology.

The defence conceded that Press was a properly qualified expert on the identification of firearms. However, they took issue with Mr. Press giving evidence on ‘covert language’.

Mr. Press’ curriculum vitae was filed on the voir dire and it detailed his decades of work with the Toronto Police Service as a firearms officer and member of the guns and gangs unit. The CV documented Mr. Press’:

investigation experience and acquired expertise in reference to street and coded language pertaining to firearms, as well as well as with respect to the street prices in the illegal trafficking of firearms and related items. He has been qualified to give expert testimony with respect to these topics in numerous occasions in the Ontario Superior Court of Justice and the Ontario Court of Justice, as well as in the Supreme Court of Nova Scotia. [at para. 49]

In this case, Mr. Press was asked to review a case synopsis and a number of text messages which included several terms requiring interpretation.

The defence conceded that Mr. Press is properly qualified to give this evidence and that the evidence is probative. They take issue however with the necessity of such evidence and that the trial judge should exercise its gate-keeping function and exclude the evidence.

The Court rejected both arguments. First, with respect to necessity the Court held:

(. . .) that the fact that the terms requiring interpretation are few in number does not detract from the necessity for the expert testimony. Even the use of one term in a manner outside its normal dictionary meaning, and in a manner and context which goes beyond the experience and expertise of the jury, may give rise for the need for this type of opinion evidence.[at para. 60]

Second, having found that the evidence is necessary

(. . .) in that it will provide important information for consideration by the jury on the meaning of words not used according to their ordinary dictionary meanings, the question becomes whether the benefit of having that evidence is out-weighed by risk of “consumption of time, prejudice and confusion.” In my view, and in the exercise of my discretion, the answer is “no”. The evidence of Mr. Press will be relatively brief and succinct, it will not confuse the jury and, in my view, the jury will be well-equipped, guided by an appropriate instruction, to accept or reject his opinion, or to give it whatever weight it considers to be justified. [at para. 67]

4:40 Human Smuggling and Trafficking

R. v. Bright, 2016 CarswellOnt 19837 (Ont. S.C.J.)

Crown Expert: Sgt. Thai Truong

A young woman DM was arrested for shoplifting. Upon arrest she was distraught and told police she did not want her pimp to see her with them. The police brought her to the station and took a statement from her wherein she detailed how she became a prostitute for Bright. During the period of time she worked for Bright she made between $60,000 and $80,000 which was all handed over to the accused. DM also detailed physical abuse she suffered at the hands of Bright. Bright was charged with human trafficking and related offences.

At trial Crown sought to have Sgt. Thai Truong qualified as an expert and permitted to give opinion evidence on:

Prostitution and Human Trafficking, including the Recruitment and Grooming Process for Prostitutes, Pimping Practices, On-line Prostitution, Rates of Pay, and Terminology. [para. 5]

The defence did not contest the Sgt. Truong’s qualifications to offer opinion evidence but:

(. . .) submitted that most of Truong’s evidence should not be admitted at trial for other reasons. The defence submits that instead of expert evidence, an instruction from the trial judge, cautioning that victims of exploitation do not all behave the same way, would suffice to ensure that the jury exercises care in assessing the complainant’s testimony. [para. 31]

The Court found the proposed evidence to be relevant. [para. 32] Its relevance was summarized as follows:

Truong’s evidence provides context, background and terminology used by the different players in the prostitution milieu. Truong is able to assist the jury in understanding methods of advertising, and how “backpage”, the pornographic website on which ads involving the complainant were placed, works. Indeed, defence counsel conceded at least the admissibility of this aspect of Truong’s evidence. [para. 33]

With respect to necessity the Court reviewed the complainant’s evidence given at the preliminary inquiry and noted that it was apparent that “she is a drug user who became romantically involved with the accused and from that point entered into the business of prostitution. She does not present in her evidence as particularly self-reflective.” [para. 35]

As a result of these findings Kurke J. held that:

With respect to the criterion of “necessity”, it is my view that lay persons on the jury would be likely to come to an inaccurate and uninformed assessment of the complainant’s evidence in this case without the assistance of the lens offered by Truong’s evidence to focus their understanding.

While lay people may have some popular and uninformed knowledge and opinions about “pimps” and their relationship to prostitutes, the task of the jury in this case will require the informed understanding that they can only gain through the assistance of the detail and comprehensiveness of the expert evidence. In addition, the complainant in this case is, or was, a prostitute, a figure that may not command much compassion or understanding from a lay person. Truong’s opinion in the delineated area is absolutely essential for the jury to do its job properly. [paras. 36-37]

Although defence questioned Sgt. Turong’s ability “to offer a comprehensive opinion, as his work has limited his focus to situations of exploitation.” [para. 40]

The Court noted that although:

Truong has less knowledge about prostitutes who operate independently of pimps, and their manner of operating. (. . .) that limit is an issue that will go to the weight assigned Truong’s opinion by the jury. It does not detract from the probative value of the detailed information that Truong can actually offer. [para. 40]

Ultimately, the court admitted Sgt. Truong’s evidence.

An ancillary issue was raise by defence with respect to Sgt. Truong’s evidence and how he would express himself in court. Specifically:

Counsel has objected to the language used in this evidence, in particular to the use of such terms as “pimp” and “human trafficking”. Counsel points out that neither term figures in the charges faced by the accused, and that the terms can carry prejudicial value-laden connotations. [para. 45]

The court dismissed this argument as it related to the use of the term ‘pimp’ and although the court noted some merit with the argument as it related to the term ’human trafficking, ultimately the court left the Crown with a strong suggestion to limit the use of that term. Kurke J. saw:

some merit in this submission with respect to “human trafficking”, and would urge the Crown to control the use of this term in Truong’s evidence, I am less concerned about the term “pimp”. That word will likely arise in any event in the evidence of D.M., and is in common parlance. If requested, I will consider delivering an instruction to ensure that the jury is discouraged from any prejudicial impact of the terms. [para. 45]

R. v. Appulonappa, 2014 CarswellBC 1135 (B.C. C.A.), reversed 2015 CarswellBC 3427 (S.C.C.)

Crown Expert: Mr. Dandurand

Defence Expert: Professor Dauvergne

Appulonappa and three others were among some 76 Sri Lankan Tamil asylum-seekers who travelled to Canada by boat in October 2009. None had the necessary documentation to enter Canada. Appulonappa and the three others were said to have been the organizers of the trip. The asylum-seekers reported that they had paid $5,000 upon boarding the ship and that each were to pay a total of $30,000-$40,000 for the voyage.

The four organizers were charged with human smuggling contrary to s. 117 of the Immigration and Refugee Protection Act [IRPA]. At trial, they successfully challenged the constitutionality of the provision arguing that it violated s. 7 of the Charter and could not be saved by s. 1.

The Crown appealed and was granted leave by the Court to recast the argument about the objection of the impugned section of the IRPA.

Both the Crown and the Respondents called experts. The Respondents called Professor Dauvergne who gave evidence on the issues of refugee law and policy. The Crown called Mr. Dandurand who testified as an expert in human smuggling and transnational crime. Both experts strayed into providing opinions on the interpretation and application of international law and the IRPA. To the extent that they did so “their testimony was not properly admissible as these were questions of law for the court.” [at para. 62] The Court of Appeal instructed itself to limit its consideration of the expert evidence to factual matters. [at para. 62]

Ultimately, the BC Court of Appeal concluded that the trial judge had erred in finding the legislation unconstitutional. Appulonappa and the three others appealed to the Supreme Court of Canada. Justice McLachlin for the majority held “that, insofar as s. 117 permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members it is unconstitutional.” [at para. 1 of SCC] The Supreme Court did not comment on the expert evidence aspect of the appeal.

4:50 Identification

R. v. Dunstan, 2017 CarswellOnt 8032 (Ont. C.A.)

Defence Expert: Dr. Stevan Pausak

Dunstan was convicted of multiple counts of possession for the purpose of trafficking and one count of possession of possession of proceeds of crime. The charges were laid after police discovered $100,000 in cash and various drugs. Police made the discovery after receiving an anonymous call reporting a break-in at Dunstan’s residence.

Dunstan sought to have the drugs and cash excluded on the basis that the police had both staged the anonymous break-in and placed the anonymous call in order to gain access to the home and thus breached his s. 8 Charter rights.

In an effort to prove the defence theory that Staff Sergeant Gillis was the voice of the anonymous caller who reported the break-in at the Dunstan residence. To establish this Dunstan sought a court order to record the officer’s voice with a high-quality microphone.

To do so the defence retained Dr. Stevan Pausak to conduct a spectrographic voice analysis of the officer’s voice. The defence proposed that the voice recording be conducted in the courtroom while the officer was subject to further cross-examination (the officer has already testified on the voir dire when this order was sought by defence).

The court agreed that the officer could be recalled but that he lacked the power to make the order that the testimony be recorded with a high-quality microphone. [at para. 26]

The officer was recalled and vigorously denied having made the call. The officer also:

read the text of the anonymous call into the record four times (consistent with the number of comparison samples the defence voice identification expert required for his analysis). For the reasons outlined above, Dr. Pausak was not able to provide a professional opinion about the comparison, given the low-quality audio characteristics of the court’s recording equipment. [at para. 31]

In the end the trial judge concluded that:

1.     The circumstances of the anonymous call were suspicious

2.     That the call was not likely made by a concerned citizen

3.     That it was reasonable to enquire whether the officer had made the call

4.     He was not persuaded that the officer made the call [at para. 32]

The conclusion that the officer had not made the call:

hinged on his own comparison of the anonymous caller’s voice, as recorded on the non-emergency line’s high-quality audio equipment, and Staff Sergeant Gillis’s voice, as recorded on the court’s lower-quality recording equipment. He found that there were similarities, but also some differences between the voices. In the course of this exercise, he cautioned himself on three occasions about “the limitations of voice comparison for someone who is not trained in voice identification”. [at para. 32]

The Court of Appeal concluded that in the circumstances of this case the: “the pre-trial application judge had the authority to make the order requested either pursuant to his powers under s. 136(3) of the Courts of Justice Act, or, if not, pursuant to the inherent jurisdiction of a Superior Court judge.” [at para. 82]

The appeal was granted and a new trial was ordered. [at para. 92]

R. v. Frimpong, 2013 CarswellOnt 4544 (Ont. C.A.)

Defence Expert: Dr. Lindsay

Kwaku Frimpong shot and killed Phillip Salmon. He didn’t mean to kill Salmon, he was trying to kill Ziad Ahmad — he killed him too though. Frimpong and Salmon went to visit Ahmad at a motel room. They did so under the pretense of selling drugs but intended to rob him. They had visited Frimpong in the motel room earlier that night — Ziad Chammas was there as well. When they arrived for the second time, Chammas was still there with Ahmad. A struggle broke out between Salmon and Ahmad and Frimpong shot. The bullet went into and through the head of Ahmad and into the chest of Salmon. Ahmad died on scene. Salmon fled but died in a parking lot nearby. Frimpong fled.

At trial, the only issue was identification. The case on identification included the evidence of Chammas and some circumstantial evidence. Chammas was shown a photo lineup; he did not positively identify Frimpong in that lineup but identified his picture as being “similar” to the shooter. Chammas was shown another lineup, this time including the mug shot of Frimpong upon his arrest. Ultimately Chammas identified Frimpong in that lineup. The real issue for the jury was not whether his identification of Frimpong as being the man at the motel earlier in the night, but whether he was correct in his evidence that it the same man who came with Salmon on both occasions.

The defence sought to call expert evidence on the frailties of identification evidence. The expert, Dr. Lindsay, was not permitted to testify. Frimpong was convicted. He appealed. One of the grounds of appeal related to the trial judge’s decision to exclude that opinion evidence and the reasons for that decision. The Court of Appeal rejected this aspect of the ground of appeal:

The appellant has two submissions in respect of the expert’s evidence, one broad and one more narrow. The broad submission asks this court to depart from its pronouncement in R. v. McIntosh (1997), 117 C.C.C. (3d) 385 (Ont. C.A.) and hold admissible expert evidence explaining in general the frailties and dangers inherent in eyewitness identification evidence. This record offers no basis for any departure from McIntosh. Dr. Lindsay’s [the defence expert] brief commentary on the abilities of jurors to properly assess identification evidence added nothing to the longstanding debate. Judges, commentators and social scientists remain divided on whether expert evidence is necessary to assist a jury in assessing eyewitness identification. [at para. 23].

The court rejected this invitation to depart from McIntosh; there was no reason to deviate from the ruling in McIntosh that such evidence was not admissible.

The other aspect of this ground of appeal was more narrowly focused. It related to evidence of the expert said to explain how Chammas might have been mistaken about whether it was Frimpong who came to the motel on the second occasion — the court rejected that aspect of the appeal as well:

The narrower basis upon which the appellant sought to introduce the expert’s evidence relates to the expert’s description of two phenomena which he called “change blindness” and “unconscious transference”. Both phenomena were said to explain how Chammas might have erroneously but honestly thought that the same person came to the motel with Salmon both times. In other words, the expert wanted to explain to the jury that Chammas having been introduced to the appellant with Salmon about an hour earlier might have mistakenly believed that the appellant was the person with Salmon when Salmon returned to the motel room for the second visit.

The trial judge ruled that the expert’s evidence did not meet the necessity criterion for the admissibility of expert evidence. In his view, the jury would be able to properly assess the evidence using their own common sense, human experience, and the instructions provided by the trial judge. The trial judge said:

Most of what he [the expert] would speak to can be conveyed in the final instructions. Generally, the issues involve the age old problem we, as humans, have in accurately observing, remembering and recalling so as to be able to reliably identify people and describe events.

In determining whether the expert’s evidence was necessary, the trial judge was effectively weighing the benefits of admitting the evidence against the potential costs of that admission. That process is entitled to deference in this court. We would not interfere with the trial judge’s determination that the evidence was not necessary. [at paras. 26-28]

R. v. Clark, 2016 CarswellAlta 445 (Alta. C.A.)

Defence Expert: Dr. Reid

In September 2012 a credit union was robbed. Clark was apprehended based on the observations of witnesses, their participation in photo line-ups and the bank’s surveillance video of the incident. Clark was convicted by a judge sitting without a jury of armed robbery. He appealed his conviction. One of the grounds of appeal related to the trial judge’s refusal to permit a defence expert, Dr. Reid, to testify about the dangers of eyewitness identification evidence.

The trial judge’s refusal to allow the evidence was based on the determination that such evidence was not necessary to assist the trier of fact. The trial judge held:

Ultimately, I ruled that the opinion evidence of Dr. Reid was not admissible, it was not necessary to assist me, as a trier of fact, in determining whether the Accused is the bank robber in this case. Dr. Reid’s evidence was interesting, but many of the points which he made, such as the advantage of having a side profile as part of the identification photo pack, in addition to a full frontal view of the suspect, are points which counsel could have made in argument. I did not need an expert to tell me that. The main effect of Dr. Reid’s evidence, if admitted, would simply be to reinforce the requirement that as a trier of fact I must be aware of the frailties of visual identification; a caution repeated ad nauseam by the Courts of Canada. Further, the opinions which he expressed, if admitted, would not provide me with information which is outside of my experience over my lifetime as a student, a worker, a citizen active in the community, a lawyer, and a trial judge. I was a lawyer for 37 years prior to coming to the Bench, in the course of which I conducted many civil and criminal trials as well as complex regulatory hearings, many of which involved the extensive use of technical and scientific experts who gave opinion evidence clearly outside the knowledge base of the decision makers involved. Since becoming a Judge in 2005, I have taken a number of NJI courses which deal with the assessment of witnesses and the types of evidence which may be heard, particularly in criminal cases.

As a general comment as to why this sort of evidence is not helpful, is that in this case it actually protracted the trial by close to one day, and that was unnecessary. [at para 48]

The Court of Appeal dismissed this ground of appeal. The Court held that:

1.     The trial judge’s decision to admit or reject expert evidence is owed deference. [at para. 66]

2.     Even if the expert had some evidence which could not have simply been the subject of final submissions or argument, it must be borne in mind that the “trial judge as a gatekeeper is not obliged to admit the evidence of an expert in order for the expert to provide opinion evidence of marginal probative value”. [at para. 67]

4:60 K9

R. v. Dhatt, 2018 CarswellOnt 10346 (Ont. S.C.J.)

Crown Expert: Officer Gorman and K9 Pumba

Dhatt was charged with importing and trafficking cocaine. At the start of trial Dhatt admitted that he had cocaine in his vehicle when he tried to cross the border from the United States into Canada. He further admitted that he knew it was cocaine and knew that once in Canada it was to be trafficked by another person. Dhatt argued that he tried to cross the border with the drugs while under duress.

At trial the Crown sought to tender the evidence of Officer Gorman as expert evidence. Officer Gorman had been a detector dog handler for 13 years. Pumba was a Officer Gorman’s third dog. The officer had taken “extensive training in which he learned to care for, train, and motivate a detector dog.” [at para. 17] He was re-certified annually.

Officer Gorman described the training process as follows:

The dog is trained to sit when in proximity to a target odour. The dog receives a reward when it has successfully located a target odour. Officer Gorman was qualified as an expert so as to give independent opinion evidence on a detector dog’s functions and evidence as to Pumba’s work in this case. [at para. 18]

Pumba the K9 also received extensive training and is re-certified annually. According to Officer Gorman, Pumba successfully detected the following:

•    Marihuana in 118 cases

•    Cocaine or crack cocaine in 27 cases

•    Heroin in 3 cases

•    MDMA in 4 cases

•    Methamphetamine in 8 cases

•    Firearms in 26 cases

•    Other CDSA controlled substances (opioids) in 22 cases

•    US bulk currency in 8 cases [at para. 20]

Given the admission in this case that the item in the suitcase was in fact cocaine the trial judge determined that the evidence should only be lead as part of the narrative for why subsequent testing on the suitcase, including an ion scan, was performed.

The Court held:

Taken at its best, the evidence can only show that there was a substance that Pumba was trained to detect in the suitcase at some point in time. Based on Pumba’s abilities, that substance could have been marihuana, heroin, MDMA, methamphetamine, a firearm, opioids, US bulk currency, or cocaine. Whatever the substance was, it could have been in the suitcase at any time prior to Pumba’s encounter with it. In my view, the use of a detector dog is valuable for investigation purposes. As an example, the use of a detector dog may provide reasonable grounds for search. However, in this case, Pumba’s evidence is not being offered to support grounds for search. Pumba’s evidence is being offered as proof that cocaine was, at one point, in that suitcase. Given the frailties of that evidence, particularly the fact that Pumba cannot be cross-examined, I am not prepared to admit the evidence for the purpose for which it was intended. Instead, it seems to me that the evidence is admissible for the limited purpose of being part of the narrative to explain the decision to use the ion scan. [at para. 40]

R. v. Regnier, 2016 CarswellSask 763 (Sask. Prov. Ct.)

Crown Expert: Constable Edward Panamaroff (with K9 Kato)

Regnier was charged possession of stolen property and assault of a peace officer with a weapon. Police were called when a vehicle travelling at a high rate of speed was observed by a concerned citizen. Police responded and the subject vehicle sped off and crashed and police observed police fleeing from the scene of the accident. K9 officer Panamaroff was part of the pursuit team with Police Service Dog Kato and tasked to be on hand in case the chase continued on foot.

Cst. Panamaroff was qualified as an expert witness in dog tracking. The court described the officer as “a dog master as well as someone who has expertise with police service dogs”. [at para. 11]. At the time of his testimony Cst. Panamaroff had been with the Canine Unit for 9 years and since May of 2012 the officer had been working with a K9 named Kato.

Kato is a dog trained to track only “human scent, and trained to track on all surfaces — grass, dirt, gravel, pavement, asphalt, ice and snow.” [at para. 13]

Cst. Panamaroff explained the science behind scent tracking with a dog as follows:

Everyone has a unique scent that they have. Just like we have unique fingerprints, every person’s scent is unique as well. Kato is trained to track only human scent. As of right now, we are all shedding skin cells which contains a unique scent to each and every one of us, and that is what Kato is smelling as he was tracking. That is the scent he was following. [at para. 12]

The officer also explained how Kato was trained in criminal apprehension. That training was described as follows:

Kato has gone through criminal apprehension training. The focus on that is to target the outer limbs of the body being the arms and legs since this keeps him away from the vital areas of the body. Kato is taught to engage the suspect and hold until he is told to release minimizing any kind of further damage. [at para. 14]

In terms of the use of force options available to police officers the K9 officer characterized the use of a dog as an intermediate weapon, since the type of force used is non-lethal.

The chase, did in fact continue on foot and that is the point at which Kato and Cst. Panamaroff pursued the suspects on foot. After several blocks, Kato and the officer came within about 40 feet of the suspects and Cst. Panamaroff told the individuals to stop or Kato would bite them; the two took off running. Kato and the officer pursued them. During this chase the officer warned that he would send the dog and one of the suspects, the female stopped — the male kept running.

Cst. Panamaroff described the next sequence of events as follows:

At this point, I was still hanging onto Kato’s leash, and I sent him for the apprehension of the male since he was still actively resisting and fleeing and refusing to stop for me. I intended to handcuff the female and then go assist Kato with the male, but I observed the male reach the fence and jump over top of it or attempt to. Kato engaged him on his right leg, but it ended up this male had jumped on top of the gate, and it opened at this time, and then he fell between the gate and the fence. He began slamming him against the fence and gate. At this point, I did not have any contact with the female, and I went to help my partner Kato. As I got up to the gate entrance, the suspect male had already began dragging himself into his yard, and Kato was still engaged on his right leg. I grabbed the leash, began pulling back yelling at him to stop fighting my dog because now I could see he had Kato’s head in his hands trying to twist it and push it off. He continued to do this. I yelled the same command again at which point the male suspect began yelling, “Sic him. Bite him.” I was confused at this point as to why until three dogs from the yard came in and began attacking myself and Kato. They were biting Kato’s neck and torso and legs and biting my lower extremities and jumping up on my upper torso. I began punching and kicking at the dogs trying to get them to leave us alone, but they continued. They would not stop. At one point, Kato had to let go of the suspect to fight off a dog that was on his throat, and afterwards Kato re-engaged the suspect again on his left leg. [at para. 16]

Cst. Panamaroff and Kato retreated. Kato was badly injured by the attack but ultimately made a full recovery.

The court accepted Cst. Panamaroff’s evidence and concluded that the accused’s dogs in this case were weapons. Regnier was found guilty of both counts.

R. v. Pedersen, 2016 CarswellBC 154 (B.C. C.A.)

Crown Expert: Corporal Calibaba (with K9 Bones)

Scott Pedersen and Vincente Serrano-Hernadez were charged with possession of cocaine for the purpose of trafficking. The two men were arrested as they arrived in Port Hardy, British Columbia, on board the Huntress. The two men had sailed that vessel from Panama. While in Panama the two men picked up some cargo, 1001 one-kilogram bricks of cocaine. Prior to their arrival the police had received a tip about the cargo. Upon their arrival, police set up surveillance including flying over the Huntress and using FLIR. During surveillance, the police observed a small vessel making repeated trips to the Huntress (in what appeared to be efforts to unload the cargo and bring it to land furtively. Eventually police searched the Huntress when it made port. The police also found the stash of cocaine brought to land by the smaller boat.

When the police searched the Huntress they used a drug dog. “The dog was trained to detect odours of marijuana, hashish, cocaine, crack cocaine, methamphetamine, heroin, and psilocybin mushrooms. When the dog detected any such odour, it gave a signal to its handler, by sitting where the odour was detected. The signal, however, did not indicate which drug odour the dog had detected. The trial judge noted that the dog’s behaviour could not be used to distinguish between fresh odours (those that resulted from drugs being in a place recently) and those that were older. Further, the dog’s behaviour could not be used to determine whether the amount of drug in a place had been large or small” [at para. 23].

At trial, the Crown called the dog handler, Corporal Calibaba; he was qualified as an expert and permitted to give opinion evidence about drug dogs and in particular about how to “read” the reactions of the drug dog. The handler testified that the dog “hit” on a drawer on the vessel. The trial judge instructed the jury about the limited use of this evidence — in terms of its inability to distinguish between the type of drugs and when the drugs were in the identified location. The two men were convicted and appealed.

On appeal, the Court of Appeal held that the evidence was not sufficiently probative to warrant admission. However, the court applied the curative proviso and dismissed this ground of appeal:

The dog handler evidence in the case before us cannot be said to have been completely irrelevant from a logical standpoint. The fact that the dog detected an odour of a drug is more consistent with the use of the Huntress to transport cocaine than would have been a failure by the dog to detect such an odour. That said, the evidence was of exceedingly limited probative value. As the judge pointed out in her charge to the jury, the evidence was of no value in determining which one of several drugs had been detected, what amount of drug had been on the vessel, or when the drug had been present. In these circumstances, the dog handler evidence was a needless distraction; in the words of Sopinka J. in Mohan, it “involve[d] an inordinate amount of time which [wa]s not commensurate with its [probative] value.”

In my view, therefore, the dog handler evidence should not, as a matter of law, have been admitted at trial. That said, it is difficult to accept that the admission of the evidence had any detrimental effect on the fairness of the trial or influenced the verdict in any way. The judge carefully instructed the jury on the severe limitations of the dog handler evidence, and eliminated any realistic possibility of the evidence being used to the prejudice of the accused. [at paras. 71-72].

R. v. Robinson, 2016 CarswellBC 1264 (B.C. C.A.)

Crown Expert: Cst. Zielinski (with K9 Zeke)

On May 3rd 2013, police responded to a call about a break and enter at a small commercial business. Police, including a dog handler and his service animal responded within minutes to the early morning call. The break in had been detected by a residential tenant in the same building as the business. The tenant saw two people make two trips carrying items from the building. When police arrived the tenant pointed to where he had last seen the intruders. Cst. Zielinski and his dog Zeke quickly located items stolen from the business and Mr. McColm hiding in a treed area nearby. Officers then set about trying to find the remaining intruder and Cst. Zielinski and Zeke set out on a second track. Within a few minutes Mr. Robinson was located.

Cst. Zielinski was qualified as an expert on dog tracking evidence. At trial, Robinson argued that he had been located by another officer and not the K9, thus diminishing his connection to the crime and the scene. In the charge to the jury, the judge instructed the jury on how to deal with expert evidence, summarized the evidence of the dog track and made specific reference to the defence theory.

Robinson was convicted. He appealed. On appeal, he argued that the trial judge erred in instructing the jury with respect to the dog track evidence. Robinson argued that dog tracking evidence “is inherently risky because it is inscrutable and untestable and there is potential for a mistake.” [at para. 4]

The Court of Appeal disagreed. In particular, the Court found that the law does not require “a specific instruction warning against the danger of convicting on dog tracking evidence either alone or in conjunction with other evidence” nor does it require that such evidence be corroborated.” [at para. 26]

R. v. Baird, 2014 CarswellMan 83 (Man. Prov. Ct.)

Crown Expert: Cst. Dennis Robert (with K9 Reya)

The Crown sought to have Cst. Dennis Robert qualified as an expert in dog handling and “how his tracking dog, Reya, responds to human scent, how she communicates her findings to him and his interpretation of those communications.” [at para. 1] Defence counsel on behalf of Mr. Baird agree that Cst. Robert could be qualified in dog handling and how his dog responds to human scent, but nothing further.

In considering the scope of the expertise that would be acceptedm the Court reviewed the decision of Justice Romilly in Sherman. Romilly J. held that:

The dog master should be qualified as an expert in how the police dog responds to human scent and how the police dog communicates his findings i.e. the prosecutor should establish the basis for interpretation of the dog’s reactions.“ He then listed a number of areas and questions that the dog master should answer in order to establish this:

1.      the training;

2.      the length of service in the dog section;

3.      the experience;

4.      the number of times the dog master has testified in court and the level of court at which he or she testified;

5.      which kind of training was used in training the dog?

6.      what has been the ongoing training of the dog?

7.      the number of investigations;

8.      the record of accuracy; and

9.      the breed of dog. [at para. 14]

The Court found the evidence on the voir dire lacking in three areas: (i)

Cst. Robert’s history of testifying as an expert in court proceedings (ii) evidence about Reya’s record of accuracy (iii) and information about Reya’s breed, Belgian Malinois and their ability to perfect as tracking dogs. [at para. 25]

The Court concluded that the officer could be qualified in all of the areas sought by the Crown however “the weight to be attached to his evidence” would be assessed in light of the concerns the court had in the three areas in which the Court had heard no evidence. [at paras. 32-33]

4:70 Kinesiology

R. v. Wilby, 2017 CarswellOnt 12704 (Ont. C.A.), leave to appeal refused Andrew Wilby v. Her Majesty the Queen, 2018 CarswellOnt 4705, 2018 CarswellOnt 4706 (S.C.C.)

Defence Expert: unnamed

Wilby was convicted of dangerous driving — he appealed the decision. The first ground of appeal related to the trial judge’s refusal to permit the proposed defence expert evidence on the issue of “reaction time.”

The Court of Appeal dismissed the appeal and held that:

The trial judge rejected, as she was entitled to, the evidence upon which the relevant part of the expert’s evidence was based. More significantly, the expert’s evidence about “reaction time” was irrelevant in light of the facts as found by the trial judge. [at para. 2]

R. v. J. (N.), 2015 CarswellOnt 12965 (Ont. S.C.J.)

Defence Expert: Dr. Laurence Holt

NJ was charged with second degree murder — the Crown alleged she had beat her three-yearold daughter to death. The little girl sustained a massive brain injury as a result of blunt force trauma to her skull. She was admitted to hospital in a coma and died shortly thereafter.

Part way through the Crown’s case the defence sought to call Dr. Holt, a kinesiologist. The defence sought to qualify Dr. Holt as a forensic kinesiologist on the issue of “whether the fatal injuries sustained by Niyati resulted from a series of accidental falls.” [at para. 3]

Dr. Holt submitted a report “which purported to examine the circumstances surrounding Niyati’s death from a movement science perspective”. [at para 14] That report included several conclusions including:

•    A review of accidents suffered by the child in India prior to immigrating to Canada.

•    A conclusion that those prior injuries could have resulted in the possibility that the child had one or more traumatic brain injuries and skull fractures; and

•    His opinion that such traumatic brain injuries and skull fractures created a congenital insensitivity to pain.

In short, the doctor opined that the death could be explained by a series of ongoing accidental events.

In dismissing the application, the Court noted that the Ontario Court of Appeal had already rejected Dr. Holt as an expert on two grounds: he is not properly qualified and the proposed evidence is based on novel scientific theory: see R. v. Chalmers, 2009 CarswellOnt 1641 (Ont. C.A.).

Baltman J. found that the concerns expressed by the Court of Appeal in 2009 continued to persist in this case. First, “Dr. Holt has no expertise in the movement patterns of young children or their typical injuries. He has no training or experience in pathology, pediatrics, brain injuries or even child development. [at para. 22]

Second, “the concept of forensic kinesiology has not advanced beyond what was presented to the Court of Appeal in 2009. Then, and now, it is not recognized outside of a single publication (which Dr. Holt co-authored) in an American medical journal where the concept was advocated. While kinesiology is now a regulated health profession within Ontario, there is still no program in forensic kinesiology anywhere in the world. No recognized standards. No certifying body and no peers to evaluate completed work. In other words, nothing beyond Dr. Holt’s proposal for the creation of such a field.” [at para. 25]

4:80 Linguistics

R. v. Chan, 2014 CarswellBC 4105 (B.C. S.C.)

Crown Expert: Det. Jagdeep Khosa

A voir dire was held as part of Chan and Singh’s trial with respect to the qualifications of Detective Jagdeep Khosa’s expertise in translation from Punjabi to English and English to Punjabi in both written and oral forms.

Detective Khosa was born in the Punjab province of India and educated in both English and Punjabi. At the age of 17 he immigrated to Canada. Since his arrival in Canada he has kept up his Punjabi language skills. The Court set out his expertise as follows:

Detective Khosa provided his CV, which is Exhibit 1 on this voir dire. He is now a member of the Organized Crime Agency of British Columbia Combined Forces Special Enforcement Unit in British Columbia and he has been since 2011. He was a constable in the Edmonton Police Service from 2007 to 2011. From 2005 to 2007, Detective Khosa was a monitor with the CFSEU. He monitored live calls and gave regular updates to investigators. He would translate calls either verbatim or he would summarize the content, and he had other duties. In 2004, Detective Khosa took a Vancouver Community College certificate program in Community Services Interpretation and he received a certificate from that program. Detective Khosa has participated in presentations in both English and Punjabi, radio talk shows in English and Punjabi. He writes articles in Punjabi newspapers in Punjabi and English. As a police officer, he has conducted interviews of suspects and complainants in Punjabi which he has then translated to English. [at para. 4]

With respect to the case at bar, Det. Khosa was tasked with reviewing a number of transcripts documenting the contents of various intercepted telephone calls. With each transcript Det. Khosa listened to the corresponding audio recording. [at para. 5]

In combination, Mr. Singh and Mr. Chan contended that Det. Khosa was not a properly qualified expert as the officer has no prior experience providing translation in court proceedings, he lacks accreditation as a court interpreter and there is no evidence of the quality of Det. Khosa’s translations.

In qualifying Det. Khosa as an expert the Court held:

Detective Khosa is not being qualified as a court interpreter. He is not required, in my view, to have the certification required of a court interpreter. His certification is sufficient, along with his experience and education, to perform translations.

The test in Mohan does not require an expert to meet the test of independent objective indicia of competence. The test is that the evidence must be given by a witness who is shown to have acquired special or particular knowledge through study and experience in respect of the matters in which he undertakes to testify. I consider that Detective Khosa’s experience and study are sufficient to qualify him as an expert in the translation from Punjabi to English and from English to Punjabi orally and in writing. [at paras. 26-27]

After finding that Det. Khosa met the Mohan criteria, the Court turned to consider whether Det. Khosa’s involvement in the case against the accused raised a concern with respect to impartiality or bias.

Defence argued that Det. Khosa’s involvement in the case as the arresting officer of one of the accused and his monitoring and translating of the intercepted communications combined with the fact that his work and volunteer experience was always on the ‘law enforcement’ side, raised concerns with respect to the officer’s impartiality. [at para. 28]

The Court rejected this argument and held:

Detective Khosa was not the lead investigator in this case. He was not on the investigation team. He was not a police officer when he performed work as a monitor. Kovats, in my view, is distinguishable on that basis. Whether Detective Khosa’s involvement in translation in the monitoring room, his effecting the arrest of Mr. Singh or his law enforcement perspective interferes with his objectivity is, I find, as Romilly J. did, a matter of weight in this case for the jury to decide. [at para. 34]

Det. Khosa was thus qualified as an expert in the translation of English to Punjabi and Punjabi to English both orally and in writing. [at para. 35]

R. v. Tan, 2014 CarswellBC 31 (B.C. C.A.)

Crown Witness: Cantonese Speaking Undercover Officers

Following a trial by a judge alone, Tan was convicted of second degree murder. He appealed that conviction alleging, inter alia, that the trial judge erred in admitting an English transcript of a cell plant operation without first considering whether the evidence met the threshold for admissibility of expert evidence. [at para. 28]

An undercover officer was placed in the same cell as Mr. Tan. The officer and Tan spoke in Cantonese and that conversation was transcribed into English and adduced at trial. Mr. Tan asserted that the officer was not a properly qualified expert in Cantonese and thus the evidence should not have been admitted.

In contrast, the Crown argued that the admissibility of the English translation was not an issue of expert evidence but rather a question of admissibility of a hearsay statement. The Crown argued that the issue with respect to the translation was a question of weight not admissibility and akin to a scenario where the statement is only partially recorded. [at paras. 85-86]

The Court of Appeal concluded that because the undercover officer was a participant in the conversation and a contemporaneous listener he was thus capable of relaying the content and being cross-examined thereon. [at para. 88]

The Court held that:

[t]he trial judge was correct to view the shortcomings of the translation as only going to weight. In my view, the trial judge properly admitted the statements. The quality and accuracy of the undercover officer’s evidence went to the weight to be given to the statements at trial. On both these determinations, I see no error in the trial judge’s analysis requiring the intervention of this Court. [at para. 89]

R. v. Chegini, 2013 CarswellOnt 8036 (Ont. S.C.J.)

Crown Expert: Kambiz Derakhshan

The Crown sought to qualify Kambiz Derakhshan as an expert translator in the Farsi and English languages. [at para. 1] The defence challenged the admissibility of this evidence on the basis that he is not a properly qualified expert and there is potential for bias. [at para. 3]

Derakhshan was employed as a part-time monitor, translator and proof-reader of translations from Farsi to English. In the case at bar, he read the parameters of the wiretap authorization, agreed to abide by them and then listened to conversations. He provided summaries of the Farsi conversations in English and where requested by the police service translations of the entire conversation. [at paras. 4-5]

Derakhshan’s experience with the Farsi language was summarized as follows:

Derakhshan was born in Iran and Farsi is his native language. He spoke only Farsi until the age of 10. He has always spoken to his immediate family in Canada and with extended family in Iran, in Farsi. When he speaks Farsi with his family in Iran he never has problems understanding them. Derakhshan speaks with his fellow Farsi translators at the Toronto Police Services in Farsi except when there is an English language speaker present.

(. . .)

Derakhshan has worked with the Toronto Police Services in this capacity (lead monitor) since 2007.

He reads and writes Farsi. When completing his translations he consulted a dictionary a few times when he was not entirely sure of the meaning of a word. He also considered the context of the word in the conversation to determine the proper meaning of that word. [at paras. 6-8]

With respect to his qualifications the Court held that: “It is clear from the above that Derakhshan is proficient in Farsi and English and was both trained and experienced in doing audio translations from Farsi to English.” [at para. 14]

Defence also argued that although there was no evidence of actual bias there was the potential for bias as he worked for the Toronto Police Service. The Court was not satisfied on the basis of the evidence presented that there was “any reasonable apprehension of bias on the part of Derakhshan”. [at para. 14]

4:90 Sociology

R. v. Ahmed, 2013 CarswellOnt 7704 (Ont. S.C.J.)

Crown Expert: Det. David Walker

At the trial of Ahmed the crown sought to tender the expert opinion evidence of Det. Walker. The proposed evidence related to:

the issue of the ‘code of silence’ in the Lawrence Heights neighbourhood or the unwritten rule that witnesses to criminal activity should not speak to the police and could be subject to violent retribution. [at para. 2]

The application to tender this evidence was made without proper notice. The court described the reason for the timing of the application as follows:

The reason for the timing of the application was that the eyewitness in this case, Ryan Malcolm, had, in his police statement, indicated that he did not know who had shot the victim. At trial, he testified that he saw the shooting and that the accused shot the victim. Ryan Malcolm was the brother of the victim. He had lived in the Lawrence Heights neighbourhood at the time of the shooting. He subsequently moved out of the neighbourhood. He testified that he did not want to be labeled a ‘snitch’ or a ‘rat’ by speaking to the police and identifying the person who had shot the victim. He testified that in his experience, people who gave information to the police were beaten up or shot. He testified that he was warned not to go to court to testify. [at para. 4]

The Court found that the proposed evidence meets the requirements at the first stage of the inquiry.

Evidence of a ‘code of silence’ has been the subject of expert opinion in other cases. I am satisfied that the proposed witness is qualified to give expert opinion evidence on this subject. The evidence is not subject to any exclusionary rule and the proposed evidence is logically relevant to the credibility of Ryan Malcolm. [at para. 16]

The Court however concluded that the evidence was not necessary for the jury to assess the credibility of the witness, since the witness himself gave evidence about the code of silence.

In the assessment of the probative value and prejudicial effect of the evidence the Court held:

The existence of the ‘code of silence’ is not in issue in this trial except in the most tangential way. The potential prejudice from the introduction of this evidence in the context of this case is significant. There is no evidence that the accused has any ties to street gangs. The evidence relating to the code of silence would inevitably raise the issue of gangs in the Lawrence Heights area. This evidence would be confusing and distracting and would create a risk of the jury speculating about gang involvement in this offence. Where, as here, the jury is fully equipped to assess Mr. Malcolm’s evidence without the benefit of expert opinion evidence, the probative value of the evidence is substantially outweighed by its potential prejudicial effect. [at para. 18]

R. v. Sadiqi, 2013 CarswellOnt 4587 (Ont. C.A.)

Crown Expert: Dr. Mojab

Hasibullah Sadiqi killed his sister and her fiancé. His sister, Khatera, was engaged to marry Feroz Mangal — something which had created a rift in the family between Khatera, Sadiqi and their father. At trial, there was no issue that Sadiqi shot and killed them. It was the defence position that Sadiqi was provoked by “insulting comments” made by Mangal. Sadiqi had met his sister and Mangal in a parking lot and (on his version) had intended to reconcile with her. Sadiqi’s position was that Mangal had made the insulting comments about Sadiqi’s father; Sadiqi, angered, returned to his car where he had a loaded handgun; Sadiqi then confronted the two with his gun; he shot his sister at close range in the head; he then shot Mangal. Sadiqi fired six shots in total.

It was the Crown’s position that the murder was not provoked; rather, it was planned and deliberate. The Crown argued that Sadiqi felt that his sister’s actions in marrying Mangal and disregarding their father’s wishes were disrespectful. Sadiqi decided to vindicate their family’s honour by killing his sister.

At trial, the Crown called Dr. Mojab to provide expert evidence on “the phenomenon of honour killings within the traditional cultures of the Middle East, including Afghanistan. The Crown sought to elicit Dr. Mojab’s opinion as to the relationship between culture, religion, patriarchy and violence against women in the Middle East and diasporas around the world, specifically as those issues relate to honour killings” [at para. 10].

The defence did not challenge Dr. Mojab’s expertise or the relevance of the evidence. Rather, the defence argued that Dr. Mojab she not be permitted to testify because of her “background as a strong advocate for women’s rights”; this background “made her incapable of providing the kind of objective description of the relevant cultural context that could assist the jury” [at para. 12]. Coupled with the “inherently prejudicial use of the phrase ‘honour killings’”, the defence argued that the evidence was too prejudicial [at para. 12].

In considering this position, the trial judge noted that Dr. Mojab would not be asked to comment on the actual facts and whether or not this was an honour killing, but rather to focus on the concept of honour killings.

The trial judge concluded his analysis of the probative value and prejudicial effect as follows:

I am supported in my conclusion by the defence assertion that evidence of Afghan culture and of the cultural perspective of the parties is relevant and that a defence expert on the subject will be presented as well. I see no significant prejudice that would flow from Dr. Mojab’s testimony and there is no rule of evidence to hold against its admission. [at para. 15 ONCA Ruling].

The Court of Appeal agreed. The trial judge’s balancing of the probative value and prejudicial effect was reasonable. There was no issue that the evidence was relevant and probative — in relation to both the Crown and Defence positions. The evidence given was balanced and fair.

R. v. Ye, 2013 CarswellOnt 17503 (Ont. S.C.J.)

Defence Expert: N. Scot Wortley

Michael Sang-Woo Ye was charged with murder. He participated in a home invasion robbery during which he shot and killed the victim. At trial, the defence sought to call an expert, N. Scot Wortley. Wortley is a criminologist with extensive experience in the “interpretation of crime incident data”. Wortley’s evidence would be related to crime statistics related to robberies and murders; more precisely, his opinion would be that “only a very small percentage of firearms-related robberies (0.15%) resulted in firearm related murders. Wortley also expressed the opinion that most armed robbery offenders had no intention to commit murder.

The court rejected the motion to tender the expert evidence. The court offered two reasons for doing so. First, the evidence was not logically relevant. The evidence only related to whether “death is likely to result from the unlawful object of robbery with a firearm” [at para. 18]. That is not the issue for determination — rather, the issue is “whether death is likely to result from the specific dangerous act in this case” [at para. 18]. The dangerous act in this case was the pointing of the loaded cocked semi-automatic handgun.

Second, the evidence fails the cost-benefit analysis. “There is a danger that the jury would be confused or misled by the statistics and would consider the likelihood of death resulting from the unlawful object rather than the dangerous act” [at para. 19]

4:100 Use of Force

R. v. Rundel, 2015 CarswellBC 1777 (B.C. S.C.)

Crown Expert: Constable Baltzer

Rundel was one of four RCMP officers who attended the Vancouver International Airport in response to reports of a man in the International Reception Lounge. The man was Robert Dziekanski and he died after police used a conductive energy weapon, a Taser, on him.

Rundel, along with the other three officers, was charged with perjury in relation to his evidence given under oath before a public inquiry.

Constable Craig Baltzer was called by the Crown to provide evidence about:

(1)   Retrieving and interpreting data from a CEW, including Taser Model X26; and

(2)   The mechanical inner workings of Taser conducted energy. [at para. 59]

The expert downloaded the data stored in the Taser and also reviewed the video of Mr Dziekanski being tasered. The officer’s evidence was summarized as follows:

( . . . ) the Taser is programmed to emit a current for five seconds with one trigger pull. If the length of the trigger pull is longer than five seconds, the duration is rounded up to the next second.

The expert described that the Taser makes a “distinctive” popping sound when it is first deployed when the Taser’s “blast doors” explode.

Constable Baltzer reviewed the Pritchard Video and said that in his interpretation Mr. Dziekanski was not getting the full force of the first Taser deployment. After the initial deployment, Mr. Dziekanski “propels himself forward, leans forward, the stapler is still in his hand and around or above his head”. He said that when Mr. Dziekanski leans forward, his clothing moves away from his body farther than two inches and, as a result, he loses the effect of the Taser and actively resists the effects of it. It is only when his clothing comes back within two inches of his body that he again feels the effect of the Taser. The expert said that when the effect of the Taser on a person is interfered with as described above, it could appear to anyone who was watching what was occurring to be separate Taser deployments. [at paras 61-63]

The Court relied on the expert evidence to assess and analyzed the evidence of various witnesses.

The expert evidence of Cst. Baltzer described earlier in my reasons explains that based on the actions and reactions of Mr. Dziekanski, it is possible that those observing would witness the first deployment as two deployments because Mr. Dziekanski came in, out of and back in contact with the full force of the Taser probes during that one deployment. [at para. 89]

Ultimately, the Court acquitted Rundel of the perjury charge.

R. v. Wiens, 2016 CarswellBC 128 (B.C. C.A.), leave to appeal refused 2016 CarswellBC 2224, 2016 CarswellBC 2225 (S.C.C.)

Defence Expert: Murray Charlton

Wiens was convicted of second degree murder in the death of his common law spouse Lynn Kalmring, who died as a result of a single gunshot wound to the face. Wiens admitted to having fired the shot but argued that he acted in self-defence. Wiens claimed that Kalmring pulled a knife on him during an argument. Wiens argued that as a former police officer his training caused him to react instinctively and shoot to kill.

At trial Wiens sought to adduce the evidence of Murray Charlton a former member of the Royal Canadian Mounted Police with expertise in firearms. A voir dire was held in which the defence sought to have Mr. Charlton qualified in the following areas:

1.     Was Mr. Wiens’s response to the alleged knife attack reasonable and expected considering his background?

2.     How would Mr. Wiens’s past training have affected his reaction?

3.     What is “muscle memory” in this context?

4.     What is significant about the fact of one shot being fired?

5.     In terms of self-defence, was Mr. Wiens’s response proportionate? [at para. 56]

The trial judge refused to permit Mr. Charlton to offer an opinion on any of the five proposed areas. The Court of Appeal agreed.

The judge found Mr. Charlton’s opinion had some relevance but that it was of limited probative value. However, the judge found numerous factors caused the prejudicial effect of Mr. Charlton’s opinion evidence to outweigh its probative value including: (a) Mr. Wiens not having testified he fired a single shot because he had been trained to do so; (b) Mr. Charlton’s limited knowledge of the training Mr. Wiens received; and (c) the events in issue did not involve a sober police officer acting in the course of his or her duties. In addition, the trial judge found Mr. Charlton’s opinion with respect to only one shot being fired would not be of assistance to the jury because it would have been apparent to Mr. Wiens as soon as he fired that single shot, that Ms. Kalmring had been killed.

In this case, the trial judge exercised his gatekeeper function having regard to the facts of the case before him. He was in the best position to determine whether the jury would be able to reach a proper verdict in the absence of Mr. Charlton’s opinion. While another judge might have exercised his or her discretion differently, I am unable to say that in making what amounted to a judgment call, the trial judge committed a reversible error. [at paras. 66-67]

R. v. Wiens, 2013 CarswellBC 2581 (B.C. S.C.)

Defence Expert: Murray Charlton

Keith Wiens was charged with second-degree murder in relation to the killing of his wife. Wiens was a retired RCMP officer. He shot his wife, allegedly in self-defence, to prevent a knife attack by her. Wiens sought to call Murray Charlton as an expert; he sought to elicit opinion evidence on training of police officers — in particular the training of officers on the deployment of firearms in close quarters and on the “expected reaction” of a trained officer in circumstances such as these. The trial judge described Charlton’s qualifications as follows:

Mr. Charlton is a highly qualified firearms instructor. He was a member of the RCMP between 1964 and 1977. Between 1974 and 1975, he was an instructor at the RCMP training depot in Regina. He trained recruits in the use of revolvers, which were then the standard issue sidearm for RCMP officers. He also trained them in the use of rifles and shotguns. Following his retirement from the RCMP, he continued to train officers but not in relation to firearms. The training he administered between 1977 and 1990 related to pepper spray, distraction devices, batons and teargas.

Mr. Charlton has been engaged on an almost full-time basis in training peace officers other than RCMP officers, but including auxiliary RCMP officers, in the use of firearms. He contracted with the British Columbia Government for about 12 years following the Province’s decision to permit auxiliary officers to carry sidearms. When the government decided to carry out that training in-house, Mr. Charlton was retained to train those trainers. Part of the training that Mr. Charlton has administered involves placing trainees in situations of stress, in order to measure their ability to use their firearms effectively and responsibly in such situations. Mr. Charlton has not trained RCMP officers who are members of the Emergency Response Team in the handling of firearms. He has trained those members in the use of other weapons and devices but not firearms. [at paras. 3-4].

The court noted that Charlton had not interviewed or otherwise assessed Wiens. In terms of admissibility, the court held that the proposed evidence should not be admitted:

As I understand Mr. Charlton’s experience, however, he has never been involved in and is not familiar with Emergency Response Team training as it relates to firearms in any context.

[. . .]

While I accept that Mr. Charlton’s evidence has some relevance, its probative value is not high for the reasons indicated. His evidence has the potential to operate prejudicially. That is so, in part, because of his impressive credentials. Those credentials do not necessarily translate to the circumstances of this case. This is the second overarching objection that the Crown raises. As Mr. Charlton pointed out, the training he administered and with which he is familiar is training used by police officers in the course of their duties as police officers. He pointed out that the training is administered to and expected to be utilized by peace officers who are on duty and sober. Mr. Wiens was neither. He was 12 years post-retirement and was not sober at the time of the events in question. [at para. 24].

[. . .]

The proffered evidence from Mr. Charlton is evidence which, in my view, should attract a strict application of the relevance and necessity criterion. As to the former, I find the evidence is not particularly probative. I note that relevance in this context means something more than merely helpful. As to the latter, it seems to me that whether a particular response is proportionate in the context of the fact situation presented by this case is a matter within the knowledge of the average juror. In fact, it is a matter which jurors are well suited to assess based on their life experiences and the application of their common sense. Finally, there is some risk that given Mr. Charlton’s impressive qualifications, his opinion would be afforded more weight than it warrants in these circumstances. [at paras. 22, 24 and 28].

R. v. Power, 2016 CarswellSask 114 (Sask. C.A.), leave to appeal refused 2016 CarswellSask 513, 2016 CarswellSask 514 (S.C.C.)

Defence Expert: Joel Johnston

Robert Power was a police officer. He was charged with assault causing bodily harm. Power was engaged in arresting Edward Stonechild. During the arrest Power kicked Stonechild causing him to fall back and hit his head. Power was convicted at trial. He appealed successfully to the summary conviction appeal court. The Crown appealed to the Court of Appeal. The court reinstated the conviction.

At trial, the defence called Joel Johnston to give opinion evidence on use of force. Johnston was qualified as an expert to offer opinion evidence about the use of force by police officers and training of officers in the use of force. Power was not qualified, however, to give an opinion about whether the force used was reasonable or proportional. Johnston testified that the kick was “a well-executed front kick and that it was intended to repel aggression” [at para. 10]. Johnston also testified that Power’s use of force was “proportional” and consistent with police training [at para. 10]. The trial judge accepted portions of this evidence but not all of it. The evidence regarding police training and that the “push-kick” used by Power was well-executed and in accordance with police training.

The trial judge did not accept the opinion that Power “acted impulsively or instinctively in the circumstances and that he used an appropriate and reasonable amount of force” [at para. 44]. The trial judge also disregarded the opinion about whether the force used was “reasonable or proportional”.

R. v. Andalib-Goortani, 2015 CarswellOnt 2985 (Ont. S.C.J.), additional reasons 2015 CarswellOnt 2984 (Ont. S.C.J.)

Defence Expert: Stockfish

Babak Andalib-Goortani was charged with assault with a weapon. Andalib-Goortani was an officer with the Toronto Police and was on duty for the G20 conference. The charges arose out of his use of a baton against Adam Nobody. Nobody sustained injuries during the incident, but it was not alleged those were caused by Andalib-Goortani. At trial, the defence sought to call Sergeant Stockfish to provide opinion evidence on use of force.

The trial judge admitted the “informational” component of Stockfish’s evidence but did not permit the officer to provide an opinion regarding whether the accused’s actions were consistent with training or whether the complainant had resisted arrest. This conclusion was based on the “second stage” gatekeeper function as set out in R. v. Abbey, 2009 CarswellOnt 5008 (Ont. C.A.) at paras. 80-95, leave to appeal refused 2010 CarswellOnt 4827, 2010 CarswellOnt 4828 (S.C.C.).

On appeal, Andalib-Goortani argued that the trial judge erred in refusing to admit the expert evidence. The court rejected this ground of appeal. It was within the discretion of the trial judge to refuse to admit the opinion evidence on the basis that the court could form its “own conclusion without help”. Here the trial judge’s conclusion that she would “not be assisted by opinion evidence” on the issue of the complainant’s actions was reasonable.

R. v. Millington, 2015 CarswellBC 2309 (B.C. S.C.) [see also the trial ruling R. v. Millington, 2015 CarswellBC 867 (B.C. S.C.), affirmed 2016 CarswellBC 1942 (B.C. C.A.)]

Defence Experts: John McKay; Brad Fawcett

Kwesi Millington was charged with perjury. Millington was an RCMP officer who was involved in the events that led to the death of Robert Dziekanski at the Vancouver International Airport. The perjury charge arose out of his evidence about his use of a taser in those events given at a public inquiry.

At his trial Millington sought to call two experts; both were to be called in the general area of “policing” but with further specific areas as identified. One was John McKay, a retired police officer was to be called on “use of force”. His more specific areas were identified as follows:

(a)    Police training;

(b)    The theory underlying police training; and

(c)    Interactions with members of the public as a police officer.

And further that “Mr. McKay will give evidence on the issue of the training given to police officers regarding a subject’s hands, and the reasons for that training. Mr. McKay will also testify about two incidents in his experience as a police officer where he misperceived aspects of high-stress situations that he was involved in”.

The second witness was Brad Fawcett, a member of the Vancouver Police Department. The more specific areas for Fawcett were identified as follows:

(a)    Police training in the use of force, including the use of tasers;

(b)    The theory underlying police training and the use of force, including the use of tasers;

(c)    The practical application of police use of force in a given set of circumstances; and

(d)    Police training and performance in high-stress situations.

Fawcett would also provide evidence “that the officers’ use of force in dealing with Mr. Dziekanski was consistent with police training and reasonable in the circumstances. He will testify about the training given to police officers regarding tasering a subject and about Mr. Dziekanski’s atypical response in the circumstances of this case. He will also testify about how common it is for police officers to misperceive aspects of an incident in stressful situations”.

Both of these areas were broken down even further and related to specific aspects of the case [at para. 10].

With respect to McKay the court noted that there were “two different subjects” that his evidence was aimed at: (i) police training about what commands to give to a subject in relation to the position of their hands during arrest or detention and (ii) the effects of stress on the accuracy of a police officer’s observation and memory of events.

With respect to the first subject the court held that the first three Mohan criteria were met. The court also concluded that McKay was properly qualified. However, the court held that McKay did not have the training or experience to qualify him as an expert in the field of the effect of stress on a police officer’s perception or memory. His evidence in this area amounted to no more than a recitation of three anecdotes drawn from his years working as a police officer; such evidence is not properly admissible: see R. v. Sekhon, 2014 CarswellBC 379 (S.C.C.) at para. 50; R. v. Hoang, 2008 CarswellOnt 2416 (Ont. C.A.) at para. 8.

With respect to Fawcett, his evidence was tendered to touch of the same two subject areas. The court came to the same conclusion about the admissibility of this evidence. In relation to the second are, the effects of stress on the accuracy of a police officer’s observations and memory, the court offered the following:

I would not admit Sgt. Fawcett’s evidence about the effects of stress on perception and memory, including his evidence about whether a police officer should delay giving an initial statement after a stressful incident in order to increase its accuracy.

On the limited evidence before me, it is difficult to come to a firm conclusion about whether this is a recognized area of scientific knowledge that could be the subject of expert opinion evidence. I do not have evidence before me that the kinds of conclusions asserted by Sgt. Fawcett about perception and memory have been the subject of generally recognized scientific study.

In any event, even if there are academics and scientists who could properly give expert opinion evidence in this area, I am satisfied that Sgt. Fawcett is not such an expert. He does not have an academic degree in psychology, neurology, or any similarly related field of science. He has not personally done any clinical research in this area. He has not published any peer-reviewed papers or articles on human perception, memory, or the effects of stress. His claim to expertise is based primarily on the fact that he is working towards a Master’s degree in criminal justice at the University of the Fraser Valley. In addition, he has read many books and articles, and he has attended police and other seminars. The fact that he has read widely does not satisfy me that he is qualified to give opinion evidence in this area, since I have no way of knowing, on the evidence before me, whether the materials he has read were themselves written by qualified scientific experts knowledgeable in the area, nor do I have any way of knowing whether he has properly understood and assimilated the principles discussed in the materials he has read. [Paras. 42-44].

R. v. Pompeo, 2014 CarswellBC 2338 (B.C. C.A.)

Defence Experts: John McKay; Clint Vair

David Pompeo was convicted of aggravated assault. He was a police officer involved in the shooting of Arthur Gillespie. The issue at trial was whether his actions were justified within the meaning of s. 25 of the Code.

At trial Pompeo tendered two experts, John McKay and Corporal Clint Vair. They were tendered to testify in the areas of:

(a)    Police training in the use of force;

(b)    Police tactics in the use of force;

(c)    Police protocols regarding the use of force; and

(d)    The practical application of police use-of-force training, tactics, and protocols.

The trial judge admitted the evidence of McKay but refused to admit the evidence of Vair. In doing so the trial judge held:

By contrast, Cpl. Vair’s background is quite different . . . He joined the R.C.M.P. in 2000 . . . As a police officer he has had less than six years of on the street operational experience. He has taken and instructed numerous weapons and other courses and he has been a member of an Emergency Response Team since 2005. He is, of course, familiar with the IMIM [the R.C.M.P. Incident Management Intervention Model, described by the judge as “the use of force protocols or training modules”] training and has acted as a use of force instructor. In that sense he would be qualified to describe the use of force training given to members of the R.C.M.P.

However, in my view Cpl. Vair has not had the benefit of much exposure to the sort of policing experience that combines knowledge and understanding of training with its implementation in circumstances on the street where theory and training collide with the exercise of judgment. His written report demonstrates, as did his evidence before me, the extent to which his opinions are based primarily on the theory underlying the use of force training. There are no doubt hundreds of police officers across the country who are both familiar with the standard use of force training and able to offer an opinion on whether that training was followed in any given case. That does not make them experts in the field . . . [at paras. 21-22].

The Court of Appeal held that this conclusion was in error:

The judge erred in finding that Cpl. Vair was not a qualified expert. In addition to having considerable experience in training officers, he had been a police officer for twelve years, and had six years of operational experience. The judge appears to have rejected Cpl. Vair not on the basis that he lacked expertise, but on the basis that Mr. McKay had greater expertise, and on the basis that many police officers had expertise similar to his. Neither of those bases was a proper one for excluding his evidence. [at para. 62].

The court noted that it is possible that “multiple experts” could lead to a “proliferation” of such evidence and amount to an abuse of process — but that was not the case here. In refusing to admit this evidence the court deprived Pompeo of the “opportunity to have opinions weighed and included in the balance” [at para. 68].

Notably, Pompeo at trial also sought to qualify Vair “in the area of the physiology of high stress events and its effects on cognitive and physical performance”; the trial judge rejected this area. No appeal was pursued on that ruling [at para. 53].

4:110 Victimology

R. v. Orr, 2015 CarswellBC 510 (B.C. C.A.)

Crown Expert: Dandurand

Franco Orr was found guilty by a jury of offences under the Immigration and Refugee Protection Act — offences related to smuggling of persons into Canada, The complainant was from the Philippines and worked for the Orr family in Hong Kong. Orr was alleged to have “induced” her to come to Canada by providing false representations about her employment conditions and prospects for permanent residency. Once in Canada it was alleged she was subjected to humiliating and degrading conditions working as a “virtual slave”. The complainant, although having the potential to alert others to her situation did not.

At trial the Crown called Yvon Dandurand — there was a voir dire to determine the admissibility and scope of evidence that would be permitted. The intent was that Dandurand would offer an opinion about the failure to disclose by the complainant. The trial judge concluded as follows regarding the scope and admissibility of this evidence:

He then addressed the proposed opinion evidence with respect to the complainant’s silence. He concluded there was a need to charge the jury with respect to the complainant’s failure to bring her circumstances to the attention of others and that Mr. Dandurand would be permitted to express an opinion in response to a properly framed hypothetical question to establish the evidentiary foundation for such charge.

The trial judge held Mr. Dandurand could be qualified as an expert in “victimology”, described as expertise in how victims react to the situations with which they are faced. Mr. Dandurand was not permitted to express an expert opinion on the methods of operation of human traffickers or exploitation by human traffickers. His curriculum vitae was held to be admissible if edited to remove the emphasis on human trafficking. [at paras. 31-32].

On appeal Orr argued, inter alia, that Dandurand was not qualified to give an opinion on victimology and that such a topic is not proper expert evidence. Orr also argued that the hypothetical so closely resembled the victim’s evidence that permitting an opinion on it amounted to oath helping.

The court on appeal noted that Dandurand had previously been qualified as an expert on human trafficking and had provided advice to national and international organizations with interests in identifying and ending human trafficking.

Despite his breadth of work in the area of criminology, “victims of crime” and violence against women [at paras. 21-24], there was nothing in his curriculum vitae or led in the voir dire that had the title “victimology” or made any reference to the silence of victims of “learned helplessness”. Notably the court commented that “[s]uch expertise may be inherent in expertise in criminology but, if so, that was not explored in the course of Mr. Dandurand’s qualification as an expert” [at para. 24].

With respect to the grounds of appeal that court held as follows. First, the opinion offered by Dandurand “related to matters that may properly be the subject of expert opinion evidence: psychological factors which may lead to behaviour relevant to credibility. Such evidence has long been admissible, ‘provided the testimony goes beyond the ordinary experience of the trier of fact’” [at para. 66]. Second, while the evidence could have been properly admissible, Dandurand was not “qualified to give the opinion adduced” [at para. 67].

An expert must not only be qualified generally but must also be qualified to express the specific opinion proffered. The courts should be wary of accepting evidence of experts in the behavioural sciences, and ought to look for evidence of subject matter expertise [at para. 67].

The court concluded that the expert should not have been permitted to express an opinion on “the motives of a person in the complainant’s position for not making earlier disclosure of her alleged exploitation and abused” [at para. 68].

The court also expressed concerns about the possibility of oath helping given the “detailed hypothetical fact pattern” relied upon [at para. 69].

With respect to the cost-benefit analysis, the court held that there was a “serious question” as to whether the evidence was necessary [at para. 73]

There is persuasive authority for the proposition that ordinary, fair-minded members of Canadian juries are capable of weighing common motivations and basic human emotions such as fear of reprisal and dependence arising from poverty and vulnerability. Expert opinion evidence is not ordinarily necessary to respond to attacks upon the credibility of witnesses founded upon their late disclosure of abuse. In R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275 (S.C.C.), the Supreme Court of Canada held that expert evidence in a sexual assault case tending to explain the delayed timing of disclosure did not meet the necessity requirement and should not have been admitted at trial. The content of the expert opinion was not “unique or scientifically puzzling” (at para. 58) and had no “technical quality” (at para. 59).

For similar reasons, in Osmar and Bonisteel the evidence of experts on motivation to give false confessions was held to be inadmissible. [at paras. 73-74].

The court concluded:

In summary, I am of the opinion that there was an inadequate evidentiary foundation for the admission of Mr. Dandurand’s opinion and for the exercise of the judicial discretion to permit him to testify to a question critical to the complainant’s credibility. There cannot be said to have been a careful weighing of the probative value of the evidence against the potential prejudice arising from its admission. Failure on the part of counsel to object to the qualification of the witness as an expert is a factor we should consider but is not a bar to finding on appeal that the expert’s opinion ought not to have been heard by the jury. [at para. 87].

4:120 Religion

R. v. Blackmore, 2016 CarswellBC 3342 (B.C. S.C.)

Crown Experts: Rebecca Musser and Professor Richard Bennet

The Crown alleged that Brandon and Emily Blackmore and James Older removed two young girls from Canada. All accused and victims were members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints [FLDS]. The accused were said to have removed the two girls from their home in Bountiful, British Columbia, for the purpose of marrying them to members of the FLDS church in the United States. Prior to trial the Crown sought to have a number of documents admitted for the truth of their contents. The documents included: marriage records, personal record and priesthood records kept by the FLDS. The documents had been seized from FLDS located near Eldorado, Texas.

On the admissibility voir dire the court qualified two experts. Professor Richard Bennet was qualified “as an expert on the origins of the Mormon faith, and the practices, precepts and traditions of the Mormon Church, particularly as they relate to record-keeping.” [at para. 43]

As a result of Professor Bennett’s testimony the Court was able to conclude that:

the keeping of accurate records for religious purposes is an essential tenet of the Mormon faith. Professor Bennett identified various passages in the Book of Mormon that describe the ancient prophets recording their peoples’ history and spiritual events on plates of brass or gold that were handed down from generation to generation. Professor Bennett described the Book of Mormon as the product of 1,000 years of record-keeping. He referred to passages from the Book of Mormon where the ancient Americans received a commandment from Jesus Christ to keep records and pass them from generation to generation, and where the Prophet Nephi was admonished by Jesus for failing to keep proper records. Professor Bennett also referred to passages from the Pearl of Great Price that emphasized the significance of record-keeping as essential to the creation of the scriptures. [at para. 56]

Rebecca Musser was qualified as an expert on “the religious doctrines foundational to the FLDS Church and FLDS culture, conduct and practises, including the importance from a religious perspective of keeping accurate and comprehensive records.” [at para. 65]

Ms Musser was not qualified as an expert in FLDS record keeping but was permitted to give evidence as a lay person on her personal observations about practices and values associated with record keeping within the church. [at para. 66]

As result of Ms Musser’s expert testimony and lay observations the Court concluded that:

the accurate record-keeping for religious purposes, including the recording of ordinances, blessings, covenants and membership information, is a fundamental precept of the FLDS faith. [at para. 87]

The Court granted the Crown’s application to tender the records for the truth of their contents.

R. v. Shafia, 2016 CarswellOnt 17126 (Ont. C.A.)

Crown expert: Dr. Shahzrad Mojab

On the morning of June 30th, 2009 four members of the Shafia family were found dead in a vehicle at the bottom of the canal near Kingston, Ontario. Three other members of the same family were charged with first degree murder. They were convicted at trial and all appealed their convictions. One of the grounds of appeal common to all three offenders was that the trial judge improperly admitted the expert opinion evidence and erred in the charge to the jury on the use of the expert evidence.

Dr. Mojab was qualified as an expert witness permitted to testify about “the relationship between culture, religion, patriarchy and violence against women in the Middle East and around the world, specifically as these issues relate to the phenomenon known as honour killing.” [at para. 201]

Dr. Mojab’s expertise and the admissibility of her evidence was hotly contested by the defence at trial. The defence argued, inter alia, that:

i.      the quality of the data underlying Dr. Mojab’s opinions rendered her opinion unreliable;

ii.     Dr. Mojab’s opinions were the product of an agenda-based bias and lacked the objectivity essential for expert evidence; and

iii.    the probative value of Dr. Mojab’s evidence was outweighed by its prejudicial effect. [at para. 207]

Notwithstanding these arguments the trial judge found Dr. Mojab to be a properly qualified expert in accordance with the Mohan criteria. In fact a change of counsel for one of the co-accused resulted in the expert voir dire being reopened and the judge twice concluding that the evidence was admissible.

Although, the evidence of Dr. Mojab was found to be admissible the Court limited the “Crown to generic hypothetical questions on the general phenomenon of honour killing rather than on specific questions that mirrored the facts of the case.” [at para. 209]

The trial judge charged the jury in accordance with the standard instruction on expert evidence, its use and the fact that motive was not an essential element of the offence.

On appeal the defence argued that Dr. Mojab’s evidence was prejudicial as it invited the jury to draw conclusions about guilt on the basis of disposition evidence or propensity reasoning. Moreover the judge erred in finding that the jury would have been unaware of the concept of honour killing thus eliminating the need for any expert evidence on this point.

The Court rejected these arguments and held that:

The evidence of Dr. Mojab was properly admitted as expert opinion evidence. Its introduction was closely monitored to ensure what the jury heard did not exceed what the trial judge permitted after two pre-trial motions to exclude it. Neither the trial Crown nor the trial judge invited or instructed the jury to use this evidence in any impermissible way in deciding whether the Crown had proven its case beyond a reasonable doubt. [at para. 244]

Moreover, the Court of Appeal noted the defence failure to object to the Crown’s mention and use of the expert evidence in their closing address and the absence of any defence complaint following the trial judge’s reference to or instructions on how the jury could use the expert evidence. [at para. 259]

4:130 Correction Law

R. v. Capay, 2019 CarswellOnt 1274 (Ont. S.C.J.)

Defence Expert: Dr. John Bradford

Capay was serving a sentence at the Thunder Bay Correctional Centre. While there Capay is alleged to have stabbed a fellow inmate, killing him. As a result, he was charged with first degree murder and placed in segregation. For four years and six months the accused was held in segregation, in a cell by himself. [at para. 4]

Capay sought a stay of proceedings on the basis of violations of ss. 7, 9, 12 and 15 of the Charter. The Crown conceded that there were Charter violations but that a stay was not the appropriate remedy.

Dr. Bradford was qualified as an expert and permitted to give “expert opinion evidence in forensic psychiatry and the psychiatric effects of institutional segregation.” [at para. 212]

Dr. Bradford testified that:

the accused experienced an extremely impaired medical and social background, including exposure to alcohol in utero, most likely resulting in a level of cognitive impairment resulting in ADHD. During childhood, the accused suffered a number of significant traumas, including sexual abuse, physical assaults, repeated head injuries, parental alcoholism and marital discord, substance abuse, and violence. Dr. Bradford opined that these childhood experiences left the accused with a basis for a personality disorder and that he presented with a moderate antisocial personality disorder.

Dr. Bradford further concluded that the accused’s time in segregation, particularly the initial period of near-total isolation, almost certainly had a more serious effect on him than it would on many other individuals given the accused’s ADHD, antisocial personality disorder, history of depression, self-injurious behaviour, and suicidality. Dr. Bradford felt that the accused’s time in segregation also resulted in perceptual disturbances and violent and sadistic fantasies.

Dr. Bradford was also of the opinion that the further trauma of segregation compounded the past traumas the accused had suffered and either exacerbated pre-existing PTSD or triggered its development, which is now both chronic and severe. Dr. Bradford opined that this PTSD would persist as a lasting effect of the accused’s prolonged segregation.

Dr. Bradford concluded that the accused’s prolonged segregation has resulted in significant cognitive impairments, in particular, permanent serious impairment of the accused’s memory of events leading up to his time in segregation.

Dr. Bradford advised the court that all of the above has had a significant impact on the assessment of the accused’s mental state at the time of the offence. Dr. Bradford reported that there is “considerable evidence” that the accused was in a “seriously altered or disturbed state of mind, which would support a finding that he was not criminally responsible, or at the very least, [would] have a substantial impact on his culpability short of that finding.”

Dr. Bradford concluded, in his report, that “the effects of segregation, in particular, on Mr. Capay’s memory, impair the ability to determine today the etiology, nature and severity of the altered or disturbed state of mind that the evidence indicates he was in at the time the offence was committed.” [at paras. 264-269]

Dr. Bradford’s evidence was not challenged in cross-examination. [at para. 270]

The Court granted the stay of proceedings.

4:140 Confidential Sources

R. v. D. (D.M.), 2016 CarswellNS 1113 (N.S. S.C.)

Crown Expert: Sgt. Mark MacDonald

DMD brought a motion to compel the Crown to disclose source debriefing reports and polices officer’s note. In the context of confidential sources this information is often referred to as SHNs (source handler notes) which are the raw notes of the human source handler and SDRs (source debriefing notes) which are the edited versions usually included in the Information to Obtain any judicial authorizations that involve confidential source information.

DMD was charged with manslaughter in relation to the death of KD. At trial it is anticipated that the crown will introduce evidence “regarding the usage and location of, as well as content sent or received by a telephone” (. . .) linked to DMD. [at para. 7]

KD’s death occurred on August 11, 2012. Eighteen days later police sought and obtained a production order for subscriber information, call detail records and other information related to the phone linked to DMD.

As part of the unredacted affidavit in evidence, the Justice of the Peace had information therein from three confidential informant sources: an anonymous Crime Stoppers tip “Source B”; and two confidential informants known to their police source handlers. [at para. 9]

Defence applied to the Court to compel the crown to disclose the following:

D.M.D. has made an application for disclosure from the Crown:

a.      All notes of the affiant Detective Constable Tyler Anstey, made while drafting the affidavit seeking production orders in this matter;

b.      Source debriefing reports reviewed by Detective Constable Tyler Anstey for the purpose of drafting affidavit seeking Production Orders in this matter. Notably:

a.      Source debriefing report reviewed on August 29, 2012, submitted by Detective Constable Jonathan Jeffries in relation to confidential human source, “Source A”;

b.      Source debriefing report reviewed on August 29, 2012, submitted by Constable Jody Allison of the RCMP in relation to information gathered from “Source C”;

c.      All Source Handler Notes for “Source A” and “Source C” insofar as they relate to the allegation from August 11, 2012;

d.      All documents (electronic or otherwise that the affiant relied upon or reviewed in drafting the ITO). [at para. 10]

In response to this motion the Crown called Sgt. Mark MacDonald. Sgt MacDonald has been a police officer since 1989 and at the time of the motion he was a member of the Criminal Investigations Section and assigned to the Human Source Office since 2010. His curriculum vitae was filed on the motion and detailed the following responsibilities in the Human Source Office:

a.      Train and monitor all source handlers in HRP;

b.      Maintain all source files;

c.      Review, vet and disseminate all source information;

d.      Determine and arrange payments for source information;

e.      Assist with source issues;

f.       Maintain and distribute covert funds for special operations. [at para. 31]

Sgt. MacDonald was qualified to give expert opinion evidence relating to “sources, source handling, policy and procedure relating to source handling, and the dissemination and use of source information as well as the breach of source identification, and possible risks associated therein.” [at para. 32]

The Court found Sgt. MacDonald’s evidence to be credible. In short that evidence focused on the risks associated with the breach of source identification.

To that end Sgt. MacDonald testified that persons who are in the best position to determine what if any redactions or vettings should be done in an effort to avoid identifying the source are: the target/subject/accused, the source, the source handler, the source co-handler and Sgt. MacDonald.

Sgt. MacDonald testified that this is so because:

“we don’t know what piece of information may identify a source”. He referred to the danger of “the mosaic effect”. That is, if an accused obtains numerous sources of information, some from the police in this investigation, some from the police and other investigations that seem to bear a connection from his own sources on the street, from his own personal knowledge, etc., it may be possible in those circumstances for the accused to triangulate who is the source — one can imagine a wall covered with information with linkages drawn between documents etc., which through process of exclusion collectively reveal a source’s identity. The mosaic effect is a reference to the phenomenon that when one [an accused] metaphorically stands back from all the material gathered by him/her, the picture of who is the source may come more clearly into focus. [at para. 40]

Relying in large part on the evidence of Sgt. MacDonald, which the court “fully accepted”, along with the existing jurisprudence the court held that “there is no obligation on the Crown in this case to disclose to the defendant, the vetted SDRs relating to Source A or C.” [at paras. 69 and 72]