DATE: 20030522

DOCKET:C38239

COURT OF APPEAL FOR ONTARIO

ABELLA, GOUDGE AND ARMSTRONG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

David Tanovich for the appellant

(Respondent)

• and -

MARVIN BRYAN

Steve Coroza for the respondent

(Appellant)

Heard: February 25, 2003

On appeal from the conviction on May 10, 2002, imposed by Justice J.W. Quinn of the Superior Court of Justice, sitting with a jury and from the sentence imposed by Justice J.W. Quinn dated May 15, 2002.

GOUDGE J.A.:

[1] The appellant faced three charges at trial: trafficking in cocaine on July 5, 2001; possession of cocaine for the purpose of trafficking on July 18, 2001; and possession of the proceeds of crime on the same day, July 18, 2001.

[2] On May 10, 2002 he was acquitted of the first charge, but convicted of the two charges arising from July 18, 2001. He was subsequently sentenced to 12 months in prison, consecutive to the sentence he was then serving.

[3] He appealed his conviction and his sentence, both of which proceeded as prisoner appeals at the court’s Kingston sittings. The appellant was ably assisted in presenting his appeal by Mr. Tanovich.

[4] Mr. Tanovich raised three arguments on behalf of the appellant, two of which can be disposed of briefly.

[5] First, the appellant says that the trial judge erred by failing to instruct the jury that it must consider each charge separately and in particular that it must not use evidence of the events of July 5, 2001 as evidence on either of the other two charges.

[6] While this may be so, the error is not fatal because it occasioned no miscarriage of justice. I would apply s. 686(1)(b)(iii) of the Criminal Code here for several reasons. The events of the two days in question in this case, July 5 and July 18, 2001, were quite distinct and involved different witnesses. In his charge, the trial judge was careful to keep the events separate and to focus the jury on the primary witnesses for each day. Most important, however, the jury acquitted the appellant of the charge relating to July 5. In these circumstances, I do not think it can be said that the evidence from July 5 coloured the convictions relating to July 18 in any way. This ground of appeal must therefore fail.

[7] Second, the appellant seeks to argue that the search conducted of him on July 18 which resulted in the discovery of cocaine was a strip search and violated his Charter rights. The appellant relied on R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.

[8] Despite the fact that this trial post-dated Golden, defence counsel (not Mr. Tanovich) did not raise this issue at trial. As a consequence, neither the defence nor the Crown had the opportunity to elicit evidence relating to the reasonableness of the search. Thus the record before us is simply inadequate to permit a proper constitutional review. Hence I would not give effect to this ground of appeal.

[9] The appellant’s third argument is that the Crown adduced evidence from a police expert witness that was inadmissible and prejudicial, since it went to the ultimate issue the jury had to decide.

[10] The evidence was called in relation to the two charges arising from July 18, 2001. On the first of those charges, the Crown alleged that the appellant had 2.96 grams of cocaine on his person at the time of his arrest and that this was for the purpose of trafficking. On the second charge, the Crown alleged that at the time of arrest the appellant was in possession of some $1505 and that this was the proceeds of crime.

[11] The appellant’s defence to the first of these two charges was that he was not in possession of cocaine and that the police were mistaken. He did not assert that he had the cocaine for his own use or even that he was a user. His defence to the second charge was that while he was indeed in possession of the cash, there was an innocent explanation for this.

[12] As part of its case, the Crown called the police officer and qualified him to give expert evidence relating to the business of trafficking in cocaine and the proceeds received therefrom. Defence counsel consented to the witness’s expertise and objected to none of his evidence.

[13] The witness testified in generic terms about the indicia that point to a possession of cocaine being for the purpose of trafficking as opposed to personal use. He was then asked to take as a given the evidence of the Crown in this case and provide his opinion about whether the possession of cocaine on those assumed facts was for trafficking or personal use. His opinion was that there was a very strong inference that somebody in these circumstances would be in possession for the purpose of trafficking. Similarly, his opinion as related to the second charge was that a very strong inference existed that the money in the person’s possession would be the proceeds of crime.

[14] The appellant does not quarrel with the generic evidence offered by the police expert, but says that his opinion assuming the facts alleged by the Crown in this case is inadmissible as it goes to the ultimate question for the jury.

[15] I do not agree. The proper approach to the admission of expert evidence was set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. It laid out the four well-known criteria of relevance, necessity and assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert.

[16] In describing the necessity criterion, Sopinka J. made clear that there is now no general rule precluding expert evidence on the ultimate issue. At pp. 24-25, he said this:

There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.

These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue. Although the rule is no longer of general application, the concerns underlying it remain. In light of these concerns, the criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue. Expert evidence as to credibility or oath-helping has been excluded on this basis: see R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, per McLachlin J.

[17] Thus the simple answer to the appellant’s third argument is that there is no general rule excluding expert evidence in respect of the ultimate issue.

[18] Moreover, there is no challenge to the contested expert evidence on the basis of the Mohan criteria. Indeed, in the circumstances of this case, the evidence would seem to easily satisfy those criteria.

[19] Relevance, absence of any exclusionary rule and a properly qualified expert are beyond doubt. Even that of necessity would appear to be met. Given that the appellant implicitly concedes that generic evidence about the indicia of possession of cocaine is necessary to assist the jury, it is hard to resist the same conclusion when that evidence is brought down to the specifics of this case.

[20] Nor can it be argued that the move from the generic to the specific results in any significant prejudice that outweighs the probative value of this evidence, given that there was no objection from defence counsel.

[21] Thus, while it would have been better if the Crown had phrased its questions on this subject in a less leading way, we would not interfere given the absence of any objection and the fact that the Mohan criteria are met. This ground of appeal must also fail.

[22] As to sentence, there is no error in principle nor is the sentence unfit.

[23] In the result, the conviction appeal must be dismissed. Leave to appeal sentence is granted but that appeal must also be dismissed.

Released: May 22, 2003 “RSA”

“S.T. Goudge J.A.”

“I agree R.S. Abella J.A.”

“I agree Robert P. Armstrong J.A.”