COURT FILE NO.: CR 15/086 DATE: 20160429

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - AHMED FARAH and MOHAMMED KHATTAK

Counsel: Grace Hession David and Kerry Hughes, for the Crown Katie Scott, for the accused, Ahmed Farah Nathan Gorham, for the accused, Mohammed Khattak

HEARD: April 5-7, 2016

K.L. Campbell J.:

Expert Evidence Ruling

Interpreting Coded Language in the Illegal Drug Culture

A. Overview

[1] The accused, Ahmed Farah, stands charged with five offences, namely, weapons trafficking for the benefit of, or in association with, a criminal organization, conspiracy to traffic in firearms, and three offences alleging his unlawful possession of a firearm. The accused, Mohammed Khattak, stands charged, on the same indictment, with three offences, namely, trafficking in cocaine for the benefit of, or in association with, a criminal organization, trafficking in cannabis (marihuana) in association with a criminal organization, and trafficking in cannabis (marihuana). All of these offences are alleged to have been committed in Toronto at various times between March 18 and June 13, 2013. The accused are being jointly tried by a jury.

[2] As part of its case against the accused the Crown has led evidence of many lawfully intercepted private communications between a number of different individuals. The Crown alleges that the accused were participants in some of these intercepted conversations. The participants in these conversations often speak in guarded and coded language about their topics of conversation. While these conversations are largely in English, sometimes the participants speak in Somali. An interpreter has already testified as to the English meaning of the words spoken in Somali.

[3] As one of its final witnesses, the Crown has called Det. John Margetson of the Toronto Police Service (TPS) as an expert in “the street level distribution and sale of cocaine and marihuana.” The Crown seeks to elicit from this witness his opinion evidence with respect to “drug trafficking techniques, prices, methods of use, strength, quantity, and packaging of these drugs when bought and sold.” The Crown also wants to introduce his opinion evidence regarding the “practices, habits and modus operandi of the cocaine and marihuana drug culture.” Finally, the Crown seeks to elicit his opinion about “coded language, guarded language and slang used by the sellers and buyers of the drugs cocaine and marihuana.”

[4] Having heard the details of his background, employment history, training, education, and extensive police experience, through his examination-in-chief and cross-examination, both before the jury and in the absence of the jury, and having heard the submissions of counsel, I have concluded that Det. Margetson is a properly qualified expert witness in all of these areas. Indeed, I did not understand defence counsel to raise any general objection to his ability to properly testify as an expert witness in this case in these tendered areas of expertise. Rather, I understand defence counsel’s objection to the proposed expert testimony of Det. Margetson to relate to the details of the manner and scope of his expert testimony.

[5] More particularly, defence counsel argues that Det. Margetson should not be permitted to offer his own interpretation of any of the lawfully intercepted private communications in this case. The Crown seeks the permission of the court to play the audio recordings of a number of these intercepted communications, in which the participants employ guarded or coded language, and ask the officer to provide the jury with his expert opinion as to exactly what the participants are discussing in these conversations. In short, the Crown wants Det. Margetson to provide the jury with his expert contextual interpretation of the details of these conversations. Defence counsel argue that such evidence would be unreliable as well as extremely prejudicial, and that the officer should only be permitted to explain to the jury the meaning of commonly employed terms and phrases in the illicit drug trade. Defence counsel also argue that Det. Margetson should not be permitted to provide the jury with any expert opinion evidence as to the comparative likelihood of his interpretations of these conversations, as opposed to other potential explanations.

[6] Following the conclusion of argument, I advised the parties that I had concluded that Det. Margetson may testify as an expert witness in the areas in which he has been tendered, and may provide the jury with his opinion generally regarding the use of common terms and phrases in the illegal drug culture, including language commonly used in the purchase and sale of cocaine and marihuana. I also indicated that the officer may also testify about any contextual factors that may assist the jury in understanding how to interpret such terms and phrases in different contexts. Further, to the limited extent that the meanings of some such terms or phrases may only properly be understood in a particular context, I indicated that hypothetical questions may be posed to the officer. However, I also advised the parties that Det. Margetson would not be permitted to provide the jury with his own interpretation of any of the lawfully intercepted private communications in this case, nor would he be permitted to offer an opinion as to the comparative likelihood of the term or phrase having a particular meaning in any given specific factual circumstances. I indicated that I would provide reasons explaining this ruling. These are those reasons.

B. The Admissibility of Expert Evidence – The Legal Framework

[7] The general legal framework governing the admissibility of expert opinion evidence was addressed by the Supreme Court of Canada most recently in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. The case raised the issue of whether, and the extent to which, an expert witness was required to be objective, independent and impartial, and how the existence or absence of these factors impacted upon the admissibility of such expert evidence. The Supreme Court unanimously affirmed the duty on expert witnesses to provide “fair, objective and impartial” testimony, and made the fulfillment of this duty a condition of the admissibility of their evidence.

[8] Cromwell J., delivering the judgment of the court, began his legal analysis by noting, at paras. 14-15, that while there is a general exclusionary rule regarding opinion evidence, one of the recognized exceptions to this rule relates to “expert opinion evidence on matters requiring specialized knowledge.” However, Cromwell J. recognized, at paras. 17-18, that the developing jurisprudence has “clarified and tightened the threshold requirements for admissibility,” added new requirements to assure the reliability of such evidence, and “emphasized the important role that judges should play as gatekeepers to screen out” tendered expert evidence where the value of such evidence “does not justify the risk of confusion, time and expense that may result from its admission.” In so doing, Cromwell J. recalled the potential dangers of such evidence, including the possibility that the trier of fact may inappropriately defer to an expert’s opinion rather than carefully evaluate it. Instead of assessing it and weighing it like any other evidence, the trier of fact may view it as “virtually infallible” and misuse it in a way that distorts the fact-finding process. There is also the potential prejudice that is created in cases where the expert places reliance on “unproven material not subject to cross-examination.” Further, there is always the risk that a “contest of experts” will distract rather than assist the trier of fact. Finally, the admissibility of expert evidence may “lead to an inordinate expenditure of time and money.”

[9] With that background, Cromwell J. outlined, at paras. 19-24, how the current analytical structure of the law relating to the admissibility of expert evidence seeks to address these dangers. First, as outlined in R. v. Mohan, 1994 SCC 80, [1994] 2 S.C.R. 9, at pp. 20-25, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert. Tendered expert evidence that does not meet these threshold requirements should be excluded. Second, there is the discretionary “gatekeeping” step of the analysis, in which the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This exercise of residual discretion involves consideration as to whether the probative value of the evidence is overborne by its prejudicial effect. If it is so overborne, then the tendered expert evidence should be excluded. See also R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at paras. 25-29; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 74-95; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 43-48; R. v. Solleveld, 2014 ONCA 418, 120 O.R. (3d) 678, at paras. 8-24; R. v. M.C., 2014 ONCA 611, 314 C.C.C. (3d) 336, at paras. 71-79; R. v. Singh, 2014 ONCA 791, 122 O.R. (3d) 481, at paras. 30-33.

C. Interpreting Coded/Guarded Language – The Jurisprudence

[10] There are a number of important authorities that have sought to apply this governing legal framework in the specific context of determining the admissibility of expert opinion evidence as to the meaning or interpretation of “coded” or “guarded” language in alleged illicit drug transactions. Indeed, there is a “substantial body of case law [that] supports the admission of evidence from experienced police officers on such subjects as … drug jargon.” See R. v. Sekhon, at para. 73.

[11] Generally speaking, these authorities establish that such expert evidence is admissible to prove the meaning of particular words or phrases used by the participants of such illicit conversations, but that expert witnesses may not provide their own contextual interpretations of the entire conversations. The rationale for this general rule appears to be that the trier of fact must have the assistance of an expert witness as to the meaning of terms and phrases commonly used in the illegal drug trade, just like a trier of fact may need the assistance of an interpreter to understand words spoken in another language. At the same time, to permit an expert to interpret and explain the meaning of an entire conversation in context is unnecessary once the coded language is explained by the expert, and would risk overwhelming the trier of fact on what is likely the ultimate issue in the case.

[12] This sensible rule was articulated by B.A. MacFarlane, R.J. Frater and C. Michaelson in their authoritative text Drug Offences in Canada (2015), in § 6:80.60.100.100, where they address this precise question of how far an expert witness may go in “de-coding” a communication. The authors state the governing rule in the following terms:

As long as the witness is properly qualified, and the evidence meets the threshold test of reliability, the witness may express an opinion on the meaning of specific words or phrases, but may not be asked to draw inferences from that evidence. For instance, the witness may express the view that, in the local drug community, “straight white, rocked up” refers to cocaine, but [he or she] may not be permitted to express a view on what was going on between the parties at the time. That falls exclusively to the trier of fact for assessment.

[13] In their articulation of this rule, the authors rely upon two decisions of the New Brunswick Court of Appeal, namely, R. v. Fougere (1988), 86 N.B.R. (2d) 93, 40 C.C.C. (3d) 355, at p. 358, and R. v. Somerville, 2012 NBCA 23, 384 N.B.R. (2d) 146, at para. 33.

[14] In R. v. Fougere, the accused was convicted of conspiracy to purchase narcotics. The evidence against the accused consisted mostly of lawfully intercepted telephone conversations and surveillance. As the court noted, in such cases it is usually necessary for the trier of fact to draw inferences from that evidence. At trial, the Crown called a police officer, Corporal Bonnell, who possessed considerable experience in drug investigations, “to facilitate the interpretation of the intercepted conversations.” He was declared an expert “for the purpose of giving opinion evidence on the jargon, the terminology and the pricing of illicit drugs.” However, after he was declared an expert, the Crown not only asked him to “explain the jargon or terminology of the illicit drug market and the pricing of drugs” so as to assist the finder of fact in drawing inferences warranted by the whole of the evidence, but the officer was repeatedly asked for his opinion regarding the “inferences which it was the trial judge’s duty to make” (i.e. the meaning of the terms in the specific context of the conversations). The New Brunswick Court of Appeal concluded that this evidence was not admissible, at p. 358:

In our opinion it was wrong for the trial judge to allow the police officer to give his opinion with respect to the inferences which had to be made from the conversations. An expert witness such as Corporal Bonnell is allowed to give his opinion on the meaning of words used in the illicit drug business but it is for the judge to decide whether that word should be given that meaning in the particular conversation.

[15] In R. v. Somerville, the accused was convicted of conspiracy to produce cannabis (marihuana). The evidence at trial consisted of some 18 lawfully intercepted private communications between the accused and his two alleged co-conspirators, surveillance and the results of a search executed pursuant to a warrant. The Crown called an experienced drug investigator, Constable White, who was familiar with drug “jargon,” and who was permitted to provide his lay opinion in relation to the meaning of the various intercepted private communications. More particularly, as each of the intercepted calls was played to the jury, Crown counsel asked the officer “to tell the jury what he thought the calls were about.” The trial judge permitted this evidence over the objection of the accused. The New Brunswick Court of Appeal concluded that the trial judge erred in this regard. Richard J.A., delivering the judgment of the court, concluded, at para. 33, that this was “not a proper approach to expert opinion evidence and ought not to have been allowed.” Citing the court’s earlier judgment in R. v. Fougere, Richard J.A. stated that “[i]t was not Cst. White’s role to draw inferences from the conversations.” Further, Richard J.A. stated, at para. 34:

What could have been asked of Cst. White was his opinion as to the type of language used in drug trafficking transactions, how marihuana was grown, the stages of a growth operation, the activities that surround a growth operation, whether there are issues with moisture when it comes to harvest time, etc. For example, he was quite properly qualified to testify that marihuana plants tend to get damaged by water and have to be shaken, but he should not have been asked to tell the jury that “shakin’ rockin’ and rollin’ all fuckin’ day” meant that Mr. Somerville was shaking marihuana plants all day. That was an inference the jury had to draw for itself. Of course, where Cst. White testified that plants need to be shaken so as not to get water damage, it was then quite proper, and even expected, for the prosecutor to invite the jury to draw the inference that Mr. Somerville’s intercepted statement meant that he had been shaking marijuana plants.

[16] This approach has also been adopted in Ontario. In R. v. Lucas, [2009] O.J. No. 5330, affirmed, 2014 ONCA 561, 313 C.C.C. (3d) 159, at paras. 265-273, the accused was charged with conspiracy to traffic in cocaine amongst other offences. The Crown sought to call Det. Cst. Canepa, an experienced member of the TPS, to give expert evidence on: (1) the pricing of cocaine at all levels of the drug trafficking hierarchy; (2) the packaging of cocaine; and (3) the use of coded or guarded language between drug dealers. With respect to the latter issue, the Crown wanted to be permitted to have Officer Canepa review the various lawfully intercepted private communications and provide his expert opinion as to whether the contents of the communications were “consistent” with being conversations about drugs notwithstanding the words actually used by the participants to the conversations.

[17] Nordheimer J. concluded, at para. 4, that “the prosecution should not be allowed to comment on the actual communications” as, to do so, would permit the officer to comment on “the ultimate issue that the jury has to decide.” Nordheimer J. explained that while there is no longer any absolute prohibition on expert evidence addressing the “ultimate issue,” the concerns underlying expert evidence on that topic remain. However, Nordheimer J. permitted the Crown to pose a limited number of hypothetical questions to the officer, based upon language similar to, but not identical to, the language used in the actual conversations, and ask for his opinion as to whether such hypothetical conversations were “consistent” with communications about drugs.

[18] The accused challenged this ruling on appeal following their conviction. The accused complained that the hypothetical conversations put to the officer for his opinion were “not meaningfully different from the actual intercepted conversations” and, accordingly, the officer’s expert opinion on those conversations ought to have been excluded. The Court of Appeal for Ontario rejected this argument, stating as follows, at paras. 271-273:

… the gatekeeper function of the trial judge concerning the admissibility of expert evidence requires an assessment of the costs and benefits of admitting the evidence as part of determining its legal relevance. Part of the costs side of the ledger is a risk assessment of the extent to which a jury faced with an opinion from a recognized expert may abdicate its fact-finding role in favour of the conclusion reached by someone said by the court to be more qualified. The closer the opinion evidence comes to the ultimate question the jury must answer, the more this risk may be heightened.

In discharging his gatekeeper responsibility, the trial judge determined that permitting D.C. Canepa to give his opinion about the meaning of a hypothetical conversation using similar language to the actual conversations reduced that risk sufficiently, while still remaining useful to the jury. Defence counsel were permitted to conduct vigorous cross-examinations of D.C. Canepa during which he confirmed that he could not speak definitely about the true meaning of the intercepts.

The assessment as to whether the expert should have been permitted to give his opinion on the meaning of a hypothetical conversation that was similar to an actual conversation between the accused was best made by the trial judge in the context of the trial, particularly in a case where counsel for the accused took conflicting positions on this issue. Here the trial judge made the assessment in the context of all the circumstances and admitted the evidence. That conclusion is entitled to deference on appeal … We see no basis to interfere with it here. It was entirely reasonable in the circumstances.

[19] This same topic was addressed relatively recently, in a comprehensive fashion, by Ferguson J. in R. v. Edison, 2015 NBQB 74, 433 N.B.R. (2d) 41. The accused was charged with conspiracy to traffick in cocaine and heroin. The Crown sought to call a police officer, S/Sgt. Tomeo, an experienced drug investigator, to provide his expert opinion as to the meaning of conversations that had been electronically intercepted by the police. The officer had considerable prior experience testifying as to the meaning of “furtive or coded language used in drug importation and trafficking as well as drug jargon and the interpretation of guarded conversations by suspected drug dealers and suppliers.” The admissibility of this evidence was the subject of a pre-trial hearing. Ferguson J. reviewed the jurisprudence in this area, including the two important decisions of the New Brunswick Court of Appeal, and concluded as follows, at paras. 67-69:

Provided that a proper evidentiary foundation is laid, Fougere stands for the proposition that a properly qualified expert witness can testify with respect to what particular words are considered part of the illicit drug world’s jargon. For example, S/Sgt. Tomeo explained that it is beyond dispute that “snow” is universally accepted as referring to Cocaine while “horse” has the same level of acceptance to mean Heroin.

Somerville provides some examples of how an expert can explain the inner workings of particular aspects of, in that case, growing marijuana. ….. The same would hold true for properly qualified experts explaining the workings of other types of drug supply and use lines. ….. So, too, would the expert be permitted to use hypothetical conversations that use furtive language to explain how patterns of coded conversations are created between individuals and inside a group of individuals provided they are not [reflective] of the evidentiary matrix of this case.

It would then be for the trier of fact to determine: 1) whether the language used was furtive or coded in nature and, if so, 2) determine whether the evidence adduced in totality had such cogency that reasonable inferences should be drawn interpreting the coded words by their true meaning.

[emphasis added – citations omitted]

[20] In his conclusions about the case, at para. 73, Ferguson J. found that S/Sgt. Tomeo was qualified as an expert witness in the areas for which he had been tendered and was entitled to give opinion evidence: (1) that “persons engaged in drug dealings often speak to each other in coded or furtive language and give examples of how that technique is employed;” (2) as to the “common acronyms used by those engaged in the drug trade to describe illicit drugs,” and “other terms common to drug dealing;” and (3) of “hypothetical examples of how those dealing in drugs might construct coded conversations as well as the methods used to decode the messages” provided that the “hypothetical examples do not reflect the evidentiary matrix” of the case against the accused. Ferguson J. also concluded, however, that the officer was not entitled to give opinion evidence specifically interpreting any purported coded or furtive language utilized in this case.

[21] These are simply some of the many authorities that support this approach to the admission of this type of expert evidence. See also R. v. Connolly, 2001 NLCA 31, 2001 NFCA 31, 176 C.C.C. 292, at paras. 27-28; R. v. Blizzard, 2005 NBQB 281, [2005] N.B.J. No. 317, at paras. 15-16; R. v. Allen, 2005 MBQB 231, 196 Man.R. (2d) 304, at paras. 5-7, 13-15; R. v. Valentine, 2009 ONSC 5953 (S.C.J.), at paras. 5-10; R. v. M.(C.), 2010 ONSC 4819, [2010] O.J. No. 3979, at paras.10-16; R. v. Ali, 2011 BCSC 1850, [2011] B.C.J. No. 2676, at paras. 18-26; R. v. Williams, 2013 ONSC 1076, [2013] O.J. No. 759, at paras. 18-26, 249-250; R. v. Pham, 2013 ONSC 4903, 300 C.C.C. (3d) 111, at paras. 26-29; R. v. Marshall, 2015 ONSC 4593, 22 C.R. (7th) 318, at para. 8; R.W. Hubbard, P.M. Brauti, and S.K. Fenton, Wiretapping and Other Electronic Surveillance: Law and Procedure (2014, Loose-Leaf), vol. 2, § 11.8, at p. 11-16.14i.

[22] This accepted legal approach is also supported by the jurisprudence holding that even acknowledged experts in the illegal drug culture, who are familiar with commonly employed drug jargon, are not permitted to testify as to the meaning of words used in intercepted private communications where the expert has never before heard the terms in question, and is basing his or her interpretation of the terms on the context of the entire conversation. See B.A. MacFarlane, R.J. Frater, C. Michaelson, Drug Offences in Canada, § 9.160.60; United States v. Hermanek, 289 F.3d 1076 (9th Cir. 2002).

[23] This is not to say that this type of expert witness should never be permitted to offer more contextualized opinions about the meaning of commonly used drug jargon, or provide suggested interpretations of coded intercepted conversations. There are cases where this approach has been jointly urged by the parties and permitted by the court. See, for example, R. v. Evans, 2013 ONSC 5550, [2013] O.J. No. 4117, at paras. 5, 7, 10. Indeed, there may be circumstances where it is advantageous to an accused for defence counsel to be able to cross-examine an expert witness as to their suggested interpretation of coded terms or jargon in the particular context of specific intercepted conversations. Those are not, however, the circumstances of the present case.

D. The Present Case

1. The Experience, Training and Expertise of Det. Margetson

[24] Det. Margetson has been a member of the Toronto Police Service for over 25 years. He is currently the Supervisor of the “Street Enforcement Team” of the Toronto Drug Squad. He started in that position in 2009, but was assigned to the Homicide Squad for an intervening period between 2011 and 2014. He then returned to that position, which he has occupied for a total period of approximately four and a half years.

[25] In this capacity, Det. Margetson is responsible for supervising the undercover police operations at the street level and up to the higher level drug purchases, which includes surveillance investigations, dealing with confidential informants, the execution of search warrants, purchasing and executing the controlled delivery of drugs regarding any controlled substances. The team is responsible for any “major drug investigations,” involving the commercial trafficking in controlled substances, not simply the pure possession of such drugs for personal use. The team consists of at least six other police officers, but sometimes other join the team on a temporary basis for training purposes. When that happens, Det. Margetson is responsible for their training in conducting drug investigations.

[26] In his evidence, Det. Margetson explained that police officers receive some basic classroom training in drug investigations at the Ontario Police College, as well as some practical investigative training on the street. When officers arrive at the Drug Squad on the Street Enforcement Team, Det. Margetson instructs them in relation to how they should conduct themselves in undercover operations, including how they should dress, their manner of hygiene, the terminology they should use to purchase drugs, how to respond to potential questions they may be confronted with, and how to avoid accusations of “random virtue testing” or entrapment.

[27] With respect to “terminology,” Det. Margetson testified that individuals involved in illegal drug transactions tend to speak in “coded” or “guarded” terms about the topic so as to avoid police detection. Sometimes slang terms are also employed as part of the language of such transactions, and sometimes coded words are developed and used by parties who have an ongoing relationship regarding the buying and selling of drugs. Further, according to Det. Margetson, there is a general “baseline” of drug terminology that is consistent throughout the city of Toronto and in the province of Ontario, if not throughout the country and North America. At the same time, the officer acknowledged that there are variations within smaller geographic areas and within groups. Det. Margetson explained that he trains police officers in relation to these terminology issues.

[28] With respect to his professional background, Det. Margetson testified that prior to becoming the Supervisor of the Drug Squad Street Enforcement Team, he worked in 51 Division as the Supervisor of the Plain Clothes Unit for close to two years, in 2007 and 2008. While the mandate of that unit was drug enforcement, prostitution and other vice offences such as liquor and gaming crimes, the unit concentrated on drug offences as that was the most significant issue in that geographic area. Det. Margetson testified that these investigations involved surveillance operations, dealing with confidential informants, and the execution of search warrants, as well as street-level drug buys and drug projects, mostly involving crack cocaine. Det. Margetson noted that, while he was the Supervisor of the unit, he also personally conducted his own undercover drug buys for crack cocaine on three occasions.

[29] Det. Margetson testified that for more than three years between 2002 and 2005, he worked in 14 Division as a team member of the “Major Crime Unit, Vice Section.” While the mandate of the unit was the investigation of prostitution, liquor and drug offences, Det. Margetson acted as an undercover operative in a number of investigative projects, portraying himself as a crack cocaine addict, during which time he made approximately 100 drug buys.

[30] Prior to that, for more than two years between 2000 and 2002, Det. Margetson worked in the 14 Division Criminal Investigation Bureau. At that time there were areas of 14 Division that were experiencing “heavy drug activity” in relation to crack cocaine, and they were the areas where Det. Margetson and other members of the team concentrated in relation to their undercover drug purchases. There were also problems in relation to other drugs, including heroin, and some of the investigations involved such drugs.

[31] Det. Margetson testified that he first learned undercover police work during a six month period in 1998 and 1999, when he worked in the 14 Division “Plain Clothes Unit.”

[32] In terms of his own training and teaching, Det. Margetson testified that he took the “Covert Undercover Operations” training when it was first created and offered in 2006-2007, and thereafter he has participated as a facilitator, presenter and lecturer at the course when it is periodically offered. Most recently, he taught at the course in February of 2016. Det. Margetson testified that he regularly teaches courses and does drug presentations to other officers. More specifically, he regularly teaches the “street level drug investigations” section of the TPS “Introduction to Drug Investigations” course approximately three or four times a year. He has also provided a variety of lectures to different audiences in relation to topics such as synthetic or chemically manufactured drugs (e.g., crystal methamphetamine, MDMA (ecstasy) and ketamine), drug trends in Ontario, drug expert witnesses, and street level drug trafficking.

[33] Det. Margetson testified that over the course of his career as a police officer, in both an undercover and uniformed capacity, he has been involved in well over a thousand drug investigations, and has been involved in drafting search warrant materials as the affiant on approximately 75 to 80 occasions. More specifically, Det. Margetson testified that he has been personally involved in undercover drug purchases of crack cocaine or ecstasy approximately 100 times. The officer explained that he has supervised, been engaged in, or listened to interceptions, involving over 500 undercover drug buys. The officer estimated that maybe 50 of these transactions were in relation to marihuana.

[34] Det. Margetson testified that in his career as a police officer he has experience in the use, packaging, pricing, terminology, habits, modus operandi and distribution methods utilized in relation to crack cocaine. The officer explained, however, that he also relies upon information garnered from other resources, such as literature and the internet websites and chat rooms regarding many different drugs. In his evidence, Det. Margetson specifically mentioned a national “email group” facilitated by the RCMP, which permits officers from across Canada to share information about drugs, terminology, ongoing legal developments, and information from the Drug Enforcement Agency in the United States and elsewhere in the world.

[35] Det. Margetson testified that there are a number of ways to remain current in relation to the “terminology” of drug transactions in Toronto. The officer indicated that one of the best ways was to speak to confidential sources, because they use the same coded language that is used in drug transactions and, if a term is unfamiliar, they will explain its meaning. Police officers can also ask confidential sources about how best to approach drug traffickers and the language or terminology to employ to make an undercover drug purchase. Other sources of information as to current drug terminology can be gained from police agents, “crime stoppers” reports, and listening to intercepted communications between undercover operatives and drug traffickers. Det. Margetson frequently relies upon these different sources, to varying degrees, to maintain a current understanding of drug terminology. According to Det. Margetson, however, the terminology in the crack cocaine, marihuana and heroin trade has remained fairly consistent over a very long period of time.

[36] Det. Margetson testified that, in his view, his responsibility as an expert witness is to provide the court with the “best information possible,” based upon his experience and knowledge, while being fair to the accused and unbiased in his presentation of the evidence notwithstanding his position as a police officer. His duty is not to provide any false information that might be detrimental to an accused.

[37] Det. Margetson also testified that he stays current in terms of quantities and pricing of drugs as well. However, the officer testified that the pricing of crack cocaine and marihuana has remained quite consistent since approximately 1990. He agreed, however, that there are factors that may potentially impact on the price of a drug at the higher levels. Further, while acknowledging some fluctuation in prices from region to region, such prices, at least at the street level, have generally remained consistent. The officer noted, however, that the quality of the marihuana has increased significantly over that time period while its prices have remained consistent. Further, Det. Margetson has not been involved in any capacity in the police investigation in “Project Traveler,” or either of the two accused in this case.

[38] Det. Margetson has been permitted to testify in court as an expert witness on a number of prior occasions in relation to alleged drug transactions and undercover drug work, four of which relied upon lawfully intercepted private communications. In this regard, Det. Margetson has previously been qualified to provide expert evidence, in both the Ontario Court of Justice and the Superior Court of Justice, in relation to street level distribution of cocaine and marihuana, including the pricing, packaging, coded language and terminology, practices and habits of the cocaine and marihuana drug culture.

2. The Admissibility and Scope of the Expert Opinion Testimony of Det. Margetson

[39] In my view, the Crown has established that the proposed expert evidence of Det. Margetson is generally admissible. First, his testimony is clearly relevant. There is no suggestion to the contrary. Second, his expert evidence is necessary if the jury is to have any ability to understand the detailed nuances of the many lawfully intercepted private communications in this case. These conversations are almost invariably shrouded in coded and guarded language and slang. The jury would have little chance of sensibly interpreting and understanding these numerous conversations without the general assistance of someone with the expertise of Det. Margetson. Third, there is no exclusionary rule that might prohibit the admission of his expert opinion evidence. Again, there has been no suggestion to the contrary. Fourth, it is apparent that Det. Margetson is a properly qualified expert who is more than competent, based upon his many years of professional experience and training, to provide helpful assistance to the jury in relation to the topics upon which he has been tendered as an expert. There is no question that he is a well qualified expert in the street level distribution and sale of cocaine and marihuana, and is well familiar with the commonly used terminology and “street jargon” employed in the illicit drug culture. Accordingly, the tendered expert evidence of Det. Margetson meets the four accepted threshold criteria of admissibility. See R. v. Abbey, at paras. 74-76, 80-86.

[40] It is really at the “gatekeeping” step of the legal analysis where the parties join issue as to the admissibility of aspects of the proposed testimony of Det. Margetson. At this juncture, the responsibility of the trial judge is to determine whether the tendered expert opinion evidence is sufficiently beneficial to the trial process to warrant its admission, when considered in relation to the potential harm to the trial process that may flow from the admission of the evidence. In short, when the probative value of the evidence is overborne by its prejudicial effect, the evidence should be excluded. See R. v. Abbey, at paras. 76-79, 86-95.

[41] With respect to most of the proposed evidence of Det. Margetson, I have no trouble concluding that the probative value of his testimony significantly exceeds any potential prejudice that might flow from his testimony. It is apparent that Det. Margetson will be able to provide the jury with probative, reliable evidence with respect to drug trafficking techniques, prices, methods of use, strength, quantity, and packaging of these drugs when bought and sold, as well as the practices, habits and modus operandi of the cocaine and marihuana drug culture. Further, the officer will be able to provide probative, reliable expert testimony in relation to coded language and slang terms commonly used by the sellers and buyers of the drugs cocaine and marihuana. Indeed, in my assessment, his expert opinion many of these issues, especially on the issues of “terminology” and drug pricing, is essential to the ability of the jury to understand the content of the many intercepted private communications. On the other hand, the introduction of this expert testimony will bring with it little, if any, potential prejudice, provided that it is carefully introduced in the appropriate manner. In other words, the “cost” side of the balancing ledger reveals few potential problems. The evidence of Det. Margetson will not consume an undue amount of time, result in any conceivable confusion, or cause any prejudice to the accused, provided that it is adduced in the appropriate fashion.

[42] As the jurisprudence in this area of the law suggests, in relation to drug terminology, slang, jargon, and coded terms, an expert witness may properly explain the meaning of particular words or phrases commonly used by the participants in illicit drug conversations. This is relevant, helpful and probative expert evidence. However, the expert should not be asked to provide their own contextual interpretations as to the meaning of conversations. While such an expert analysis might be of some additional assistance to the jury, such evidence would run the real risk of overwhelming the jury with the opinion of the expert. The jury might well simply defer to the opinion of the expert on the ultimate issue of the meaning of the various intercepted private communications. Indeed, the jury might find it difficult to potentially disagree with the contextual interpretation of intercepted communications, laden with coded drug jargon, offered by a seasoned drug investigator with the impressive experiential qualifications of Det. Margetson. However, if the jury is provided with a helpful lexicon or glossary of the terms and phrases that are commonly employed in the illegal drug trade, and advised of any contextual factors that might influence the meaning of such terms, the jury will have all of the tools that are necessary to independently assess for itself the contextual meaning of such terms and phrases in individual conversations. In short, the jury will be provided with the benefit of the expert opinion evidence of Det. Margetson, but without the potential accompanying prejudice.

[43] Accordingly, as I have indicated, Det. Margetson will be permitted to testify as an expert witness in the areas in which he has been tendered, and may provide the jury with his opinion as to the meaning terms and phrases commonly used in the illegal drug culture, including language commonly used in the purchase and sale of cocaine and marihuana. Det. Margetson may also explain any contextual factors that may assist the jury in understanding how to interpret such terms and phrases in different contexts. Further, to the limited extent that the meanings of some terms or phrases may only properly be understood in a particular context, hypothetical questions may be put to the officer.

[44] Det. Margetson will not, however, be permitted to provide the jury with his interpretation of any of the intercepted private communications in this case, nor will he be permitted to offer an opinion as to the comparative likelihood of the term or phrase having a particular meaning in any given circumstances. Further, there are some terms (which I have already listed for the parties) that Det. Margetson will not be permitted to explain to the jury, as they are terms that are not commonly used in the illegal drug culture, and would only be interpreted by the officer in the context of their use in a specific intercepted conversation.

E. Conclusion

[45] In summary, I have concluded that Det. Margetson is an expert in the street level distribution and sale of cocaine and marihuana, and will be permitted to provide the jury with his opinion with respect to drug trafficking techniques, prices, methods of use, strength, quantity, and packaging of these drugs when they are bought and sold, as well as the practices, habits and modus operandi of the cocaine and marihuana drug culture.

[46] Det. Margetson will also be permitted to provide the jury with his opinion about coded language, guarded language and slang used by the sellers and buyers of the drugs cocaine and marihuana. In this latter regard, however, he will not be permitted to provide his interpretation of any of the lawfully intercepted private communications. Rather, he will be limited to providing the jury with his understanding of the meaning of commonly used terms and phrases in the illicit cocaine and marihuana drug culture. With this lexicon or glossary of word and phrases from Det. Margetson, and with the submissions of counsel, the jury will be able to draw their own inferences and conclusions regarding the contextual meaning of these conversations in light of all of the evidence in this case.

Kenneth L. Campbell J.

Released: April 29, 2016