COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sarjoghian, 2020 ONCA 550

DATE: 20200902

DOCKET: C64912

Juriansz, Tulloch and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hassan Sarjoghian

Appellant

Mark Halfyard and Colleen McKeown, for the appellant

David Quayat, for the respondent

Heard: in writing

On appeal from the conviction entered on July 6, 2017 by Justice Michael G. Emery of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1] Mr. Sarjoghian appeals his conviction for importing opium into Canada contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1). For the reasons below, we allow the appeal.

[2] At trial, Mr. Sarjoghian denied knowing that the air compressor he had shipped to Canada from Iran contained opium in a hidden compartment. The Crown’s expert witness on drug importation and concealment, while under cross-examination, testified that, in his experience, it was “one hundred percent true in every investigation” the person who brought the shipment to Canada had knowledge of the illicit substance. He explained the importing “organization will maintain positive control of a high-value shipment at all times.”

[3] Mr. Sarjoghian appeals on the ground that the Crown expert’s anecdotal evidence of the knowledge of drug couriers ran afoul of the decisions of the Supreme Court of Canada in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 49-51, and of this Court in R. v. Burnett, 2018 ONCA 790, 367 C.C.C. (3d) 65, at paras. 75 and 80, which ruled that such evidence lacks relevance and is not probative of an accused’s knowledge. Such anecdotal evidence is highly prejudicial and therefore inadmissible.

[4] The Crown concedes that the appeal should be allowed. In this case, as in Burnett, the trial judge failed to instruct the jury to disregard the inadmissible evidence. Here, as in Burnett, “[t]he prejudice remained unabated”: Burnett, at para. 78.

[5] On this ground alone, we allow Mr. Sarjoghian’s appeal and order a new trial. We need not address the other grounds raised by Mr. Sarjoghian.

“R.G. Juriansz J.A.”

“M. Tulloch J.A.”

“M. Jamal J.A.”