Court of Appeal for Ontario
Date: 2022-05-16 Docket: C66565
Before: Simmons, Miller and Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Narmatha Satkunananthan Appellant
Counsel: Mark C. Halfyard, for the appellant Xenia Proestos, for the respondent
Heard: March 21, 2022 by video conference
On appeal from the conviction entered by Justice Thomas A. Bielby of the Superior Court of Justice, sitting with a jury, on May 30, 2018.
Simmons J.A.:
Introduction
[1] Following a jury trial, the appellant was convicted of possession of oxycodone for the purpose of trafficking. While conducting a search of the appellant’s boyfriend’s vehicle, police found 180 Percocet pills in a gym bag that the appellant acknowledged was hers. The pills were in a ziplock bag that was inside a grocery bag. As described by a police witness at trial, Percocet is a prescription drug that contains 325 mg of acetaminophen and 5 mg of oxycodone. [1]
[2] The appellant testified at trial and denied that the pills were hers. She said she left the gym bag in her boyfriend’s vehicle about two weeks before police found the bag and did not know the pills were in the bag.
[3] The appellant’s boyfriend was not called as a witness at trial. However, there was evidence before the jury that he had a criminal record for drug offences, including an importing offence for which he had served a lengthy jail sentence.
[4] The appellant raises two issues on her conviction appeal.
[5] First, the appellant submits that the trial judge erred in permitting a police officer to give the opinion that possession of the Percocet pills was for the purpose of trafficking.
[6] Second, the appellant submits that the trial judge erred in instructing the jury, in response to a defence closing submission, not to speculate about the Crown's failure to call the appellant's boyfriend as a witness.
[7] In the particular circumstances of this case, I agree that the trial judge erred in permitting the police officer to give the opinion that possession of the Percocet pills was for the purpose of trafficking. Further, I would not apply the proviso as requested by the Crown to dismiss the appeal.
[8] Both Crown and appellant’s counsel submitted that, if we acceded to the appellant’s submissions, rather than allowing the appeal and ordering a new trial, this would be an appropriate case in which to substitute a guilty verdict for the included offence of possession of oxycodone pursuant to s. 686(1)(b)(i) of the Criminal Code, R.S.C., 1985, c. C-46. However, appellant’s counsel also submitted a sentence that would not give rise to a criminal record may be appropriate in this case. Section 686(3) would permit this. In the circumstances, I would order counsel to provide written submissions on the appropriate disposition and sentence for the included offence within 10 days of the release of these reasons.
Background
[9] On February 5, 2016, the appellant was a front seat passenger in her boyfriend, Robert Bennett's, Jeep when police pulled it over for a traffic violation. Police impounded the vehicle because Mr. Bennett's driver’s licence was suspended, and because he was subject to a probation order prohibiting him from being in the front seat of a vehicle unless he was validly licenced to drive. He was also subject to a weapons prohibition. On searching Mr. Bennett, police found two cellphones and some cash.
[10] While conducting an inventory search of the vehicle, the police found a gym bag, which the appellant acknowledged belonged to her, on the back seat of the Jeep. The police officer who found the bag testified that the gym bag was partially open and that, after checking the appellant’s wallet that was inside the gym bag, he saw a double ziplocked bag containing a number of pills inside an open grocery bag. He seized the pills but not the gym bag. No other drug paraphernalia or indicia of trafficking was found in the Jeep.
[11] Police ultimately determined that there were 180 pills in the ziplock bag. A single pill submission to Health Canada tested positive for oxycodone.
[12] The appellant testified at trial and explained that she put the gym bag in the vehicle on January 20, 2016 after a work-out. Because she had been away or working in the intervening period, she did not see the appellant or the gym bag again until February 5, 2016. Mr. Bennett picked her up on that day so the two could have lunch before she went to work.
[13] The appellant testified that she put her wallet on top of the gym bag when she got in the Jeep because it was too big to fit in her coat. She said that the pills were not hers and that she did not know they were in the gym bag. Although she had been prescribed prescription painkillers several years before when she had her wisdom teeth removed at age 15 or 16, she had not otherwise used prescription painkillers.
(1) Did the trial judge err in permitting a police officer to give the opinion that possession of the 180 Percocet pills was for the purpose of trafficking?
(a) The evidence
[14] At trial, the Crown applied to have Sergeant Harris of the Peel Regional Police Service qualified as an expert to give opinion evidence about drugs containing oxycodone, in particular, with respect to street value, terminology, packaging, distribution, patterns of use, and trafficking. The appellant challenged Sergeant Harris’ expertise and also challenged the need for expert evidence.
[15] Following a voir dire, the trial judge found that Sergeant Harris had significant experience with drugs such as cocaine but less experience with prescription drugs. Nonetheless, the trial judge accepted that Sergeant Harris had gained experience in relation to the use of illegally obtained prescription drugs, their value, and the manner of their distribution through conversations and debriefings with police officers, users of prescription medications, confidential informants, and accused persons.
[16] Ultimately, the trial judge qualified Sergeant Harris to give opinion evidence about the value of the seized pills, the source of such drugs on the street and the packaging used, and whether other paraphernalia was required for their use. The trial judge stipulated that the officer’s expertise did not extend to dosages or consumption rates. However, the trial judge permitted the officer to “provide an opinion as to the charge of possession for the [purpose] of trafficking based on the quantity seized, assuming all 180 of the pills contained oxycodone, their packaging and their value.”
[17] Before the jury, Sergeant Harris acknowledged that his previous experience in giving expert evidence had been primarily in relation to cocaine, crack cocaine, marijuana and methamphetamine. Further, on one previous occasion, he had been deemed not to be an expert in prescription-related drugs, specifically oxycodone. However, he confirmed that he felt qualified to give evidence about the value of oxycodone-type drugs, how they get on to the street, and packaging.
[18] Sergeant Harris explained that prescription drugs like Percocet usually make their way onto the illicit street market through pharmacies, either through fraudulent or unused prescriptions, or break-ins. Unlike, for example, powdered drugs, there is no specific packaging for prescription drugs. He had seen them in prescription bottles with the stickers taken off, in plastic bags, or just loose in people’s pockets. He could not give a specific number of Percocet pills that would indicate a person was a dealer. He had seen traffickers in possession of pills in the high hundreds to thousands and he had also seen traffickers with smaller amounts, in the low hundreds.
[19] Concerning value, he noted that Percocet contains 325 mg of acetaminophen and 5 mg of oxycodone. Street-level oxycodone is valued at one dollar per milligram, so 5 mg would have a street value of about $5 per Percocet pill. However, if purchased in bulk, the price could go as low as $2.50 per Percocet pill. So, 180 Percocet pills would be worth between $450 and $900 if sold on the street, depending on whether they were sold individually or in bulk.
[20] Sergeant Harris testified “there is no reason for a person prescribed an actual prescription to carry around their bottle without the actual bottle in itself.” In his view, “transporting 180 pills in a Ziploc bag does not make sense for someone who is getting them legally.”
[21] When asked if he drew any conclusions based on the facts of this case, Sergeant Harris stated, “180 Percocets is a large amount of Percocets”, worth between $450 to $900. Had they been obtained legally he would have thought they would remain in the prescription bottle with a name on it and not be in a ziplock bag. Further, in his experience, users (as opposed to traffickers) would generally carry with them only the number of pills they needed while away from their safe storage location for fear of losing their supply, being mugged, or being investigated by the police. In his opinion, having “180 Percocets in a Ziploc bag in a vehicle” was for the purpose of trafficking.
(b) The admissibility issue
[22] The appellant does not take issue with Sergeant Harris’ evidence about pricing and how illegally obtained prescription pills end up on the street. However, she submits that the trial judge erred in permitting Sergeant Harris to give opinion evidence concerning whether the possession in this case was for the purpose of trafficking as opposed to for personal use. Particularly given the paucity of evidence of any other indicia of trafficking, the officer should not have been allowed to give evidence going to the ultimate issue.
[23] The Crown responds that the real issue in this case was whether the appellant knew the drugs were in the bag and therefore was in possession of them. The appellant testified at trial and denied she knew about the pills. Defence counsel at trial devoted little attention to the question of whether possession was for the purpose of trafficking. His main argument concerning the need for expert evidence was that the jury did not require an expert to tell them that possession of prescription pills obtained without a prescription is illegal. However, there was no real issue at trial about whether the pills were legally obtained. The issues were whether the appellant knew the pills were in the bag and whether, if the jury found possession, it was for the purpose of trafficking.
[24] The Crown submits that Sergeant Harris’ evidence concerning the quantity and value of the pills, the manner of packaging them, and users’ fear of losing their supply or detection was relevant to the issue of whether possession was for the purpose of trafficking. The trial judge made no error in qualifying Sergeant Harris to give that evidence because it was beyond the knowledge of laypeople. His opinion that possession was for the purpose of trafficking was rooted in this evidence, and it was entirely proper for him to give it.
[25] I agree that Sergeant Harris’ evidence concerning the quantity and value of the seized pills, how street drugs are packaged, and users’ fears about losing their supply was relevant to whether possession for the purpose of trafficking was established and that such evidence was properly admitted. However, I do not agree that it was appropriate for Sergeant Harris to go further and give his opinion that, based on this evidence, the possession of the pills was for the purpose of trafficking.
[26] In the circumstances of this case, the latter opinion was not only not necessary, it created a risk that the jury would not critically consider both the evidence that was in front of them along with the absence of evidence.
[27] Opinion evidence is presumptively inadmissible. It may be admitted only where the party tendering it can show:
i) the evidence is logically relevant; ii) the evidence is necessary to assist the trier of fact; iii) the evidence is not barred by another exclusionary rule; and iv) the witness is a properly qualified expert.
[28] Assuming the proffered evidence meets these preconditions, the trial judge retains a residual discretion to exclude the evidence where the probative value does not exceed the prejudicial effect. See R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-25; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 43-48; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 16-25.
[29] In this case, the Crown’s evidence relevant to the issue of whether the pills were possessed for the purpose of trafficking was straightforward and easy to understand. It pertained to the quantity of pills, their value, how street pills are packaged, [2] and Sergeant Harris’ experience concerning the quantity users would typically carry with them at any time. Based on Sergeant Harris’ evidence concerning these matters, it was open to the Crown to invite the jury to draw the inference that possession was for the purpose of trafficking. The jury did not require opinion evidence to assist them in assessing what inferences were available from this straightforward evidence.
[30] What should not be overlooked, however, is the failure of the Crown to adduce admissible expert evidence about dosages or consumption rates, evidence which would have been highly relevant to the nature of the possession. Although Sergeant Harris testified about consumption rates during the admissibility voir dire, the trial judge did not permit him to give this evidence at trial because it exceeded his expertise.
[31] In these circumstances, in my view, Sergeant Harris should not have been permitted to give the opinion that possession of the pills was for the purpose of trafficking based on the evidence he was permitted to give. It was for the jury to determine whether that inference should be drawn taking account of the straightforward evidence he gave as well as the absence of evidence of dosages and consumption rates.
[32] In this regard, I note that, as part of his summary of the defence position in his jury instructions, the trial judge pointed out that Sergeant Harris did not provide evidence about consumption rates to help the jury understand whether 180 pills was for personal use or for the purpose of trafficking. However, in the face of an experienced police officer’s stated opinion that possession of 180 pills in a ziplock bag was for the purpose of trafficking, I consider that there was a real risk that the jury may simply have accepted that opinion without critically considering the impact of the absence of evidence concerning dosages and consumption rates. In my view, the question of the proper inference to be drawn from both the evidence and the absence of evidence relevant to the issue of possession for the purpose of trafficking was an issue uniquely for the jury to assess.
(c) Does the curative proviso apply?
(i) The positions of the parties
[33] The Crown submits that, even if the trial judge erred in the circumstances of this case by permitting Sergeant Harris to opine that 180 Percocet pills in a ziplock bag was for the purpose of trafficking, this court should rely on the curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal because no substantial wrong or miscarriage of justice resulted.
[34] The Crown may rely on the proviso where the error is harmless or trivial or where the evidence in the case is so overwhelming that a conviction was inevitable: R. v. Samaniego, 2022 SCC 9, at para. 65, citing Sekhon, at para. 53.
[35] In this case, the Crown concedes that its case against the appellant was not overwhelming. However, the Crown submits that any error in admitting Sergeant Harris’ opinion was harmless because the conclusion that the appellant’s possession of 180 Percocet pills in a ziplock bag was for the purpose of trafficking was both inevitable on the evidence and a matter of common sense. The Crown contends that an inadmissible expert opinion that is a matter of common sense does not give rise to a miscarriage of justice.
[36] Beginning with the inevitability of the verdict, although Sergeant Harris was not permitted to testify about dosages or consumption rates, as noted, he did explain that, in his experience, users (as opposed to traffickers) would generally carry with them only the number of pills they needed while away from their safe storage location out of fear of losing their supply, being mugged or being investigated by the police. Even without evidence about consumption rates, the Crown submits that, viewed in the context of this evidence, the jury would inevitably have concluded that the appellant’s possession was for the purpose of trafficking. One hundred and eighty Percocet pills is a sufficiently large quantity of prescription painkillers to allow for the conclusion, as a matter of experience and common sense, that no one could consume that many pills over a brief period. Juries’ decisions are presumptively rooted in common sense.
[37] Further, the Crown submits that if any portion of Sergeant Harris’ opinion was inadmissible, it is because that part of his opinion was unnecessary. The Crown points out that the rationale for the necessity criterion is related to a concern that the jury may be overwhelmed by evidence from a person with impressive qualifications and mistakenly conclude that person’s opinion is entitled to more weight than their own: Mohan, at para. 23.
[38] Here, the Crown submits there was no such danger for three reasons: i) the non-scientific nature of the evidence; ii) Sergeant Harris’ concession that his experience with Percocet pills was more limited than his experience with other drugs; and iii) the trial judge’s clear instructions that the expert’s qualifications did not enhance the value of his evidence. In the circumstances, the Crown asserts that the jury was well-equipped to critically assess the limited, impugned evidence.
[39] Finally, the Crown says that the expert’s opinion that the appellant’s possession was for the purpose of trafficking was amenable to cross-examination and submissions that would have urged the jury to reach a contrary conclusion. The Crown submits that the appellant did neither. That, says the Crown, supports the conclusion that the evidence was not central to the case, that it was consistent with common sense and that there was no prejudice through the admission of the evidence.
[40] The appellant responds that the burden of demonstrating a harmless error is onerous. The error must be so minor or so irrelevant to the ultimate issue at trial or so clearly non-prejudicial that no reasonable jury could possibly have rendered a different verdict if the error had not been made. The Crown must show that the error could not have impacted the verdict or prejudiced the appellant: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-35; R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at para. 118.
(ii) Discussion
[41] I would not apply the proviso in all the circumstances of this case.
[42] As a starting point, I reject the Crown’s submission that Sergeant Harris’ evidence about patterns of use made a finding that the appellant’s possession was for the purpose of trafficking inevitable. Sergeant Harris testified that, in his experience, users would carry with them only the number of pills they felt they needed before returning to their safe storage place. No doubt the explanation he gave for what he had experienced as the common behaviour of users made sense. However, on its face, his evidence in that respect did not suggest that users would not generally have a relatively large supply of pills. Nor did his evidence lead inevitably to the conclusion that no user would ever carry a larger quantity of pills than they required within some relatively short period of time.
[43] Second, while I acknowledge that there is undoubtedly some number of Percocet pills that would make a finding of possession for the purpose of trafficking inevitable as a matter of common sense, in the absence of admissible evidence about dosages and consumption rates, I am not persuaded that 180 is that number. Without admissible evidence about dosages and consumption rates, the inevitability of such a conclusion is, in my view, speculative.
[44] As I have said, as part of his summary of the defence position in his jury instructions, the trial judge pointed out that Sergeant Harris did not provide evidence about consumption rates to help the jury understand whether 180 pills was for personal use or for the purpose of trafficking. I do not view it as inconceivable that, in the absence of Sergeant Harris’ opinion that the possession of 180 pills in a ziplock bag was for the purpose of trafficking, a juror could have a doubt about that issue based on this identified absence of evidence.
[45] Finally, I cannot accept that the Crown has demonstrated that the appellant was not prejudiced by the admission of Sergeant Harris’ opinion that the appellant’s possession was for the purpose of trafficking.
[46] First, Sergeant Harris’ evidence was the only evidence addressing the element of the offence of possession for the purpose of trafficking.
[47] Second, while the trial judge gave the jury standard instructions on assessing expert evidence, in his instructions on this element, the trial judge told the jury that Sergeant Harris’ evidence was “most important”. In his summary, the trial judge also omitted the officer’s qualification that, in his experience, users would carry with them only the number of pills they required.
[48] I accept that the appellant’s position and submissions at trial were focused on whether she knew about the drugs and was therefore in possession of them. However, even though the jury rejected her evidence on that issue, the Crown still had the onus of proving possession for purpose of trafficking beyond a reasonable doubt. Sergeant Harris’ opinion was central to that issue. Since I am not persuaded that, in the absence of evidence of dosages and consumption rates, a conclusion that possession of 180 Percocet pills in a ziplock bag was inevitable, I cannot be satisfied that the admission of his opinion did not prejudice the appellant or that it was a minor or trivial error. As I have said, in my view, there was a real risk that in the face of Sergeant Harris’ opinion that possession was for the purpose of trafficking that the jury may not have critically considered the impact of the absence of evidence concerning dosages and consumption rates.
[49] Given my conclusion on this issue, it is unnecessary that I address the appellant’s second ground of appeal.
Disposition
[50] Based on the foregoing reasons, I would set aside the appellant’s conviction for possession of oxycodone for the purpose of trafficking. Given counsel’s agreement that a verdict be substituted and the appellant’s submission that a sentence not giving rise to a criminal record may be appropriate, I would direct counsel to provide brief written submissions not to exceed seven pages within 10 days of the release of these reasons concerning what disposition and sentence should be imposed under ss. 686(1)(b)(i) and 686(3) of the Criminal Code.
Released: May 16, 2022 “J.S.” “Janet Simmons J.A.” “I agree. B.W. Miller J.A.” “I agree. I.V.B. Nordheimer J.A.”
[1] When prescribed in larger dosages, oxycodone is not combined with other drugs. [2] I flag here Sergeant Harris’ evidence about how users of legally-obtained prescription pills were likely to transport them (see paras. 20-21 of these reasons). As noted by the Crown, there was no real issue at trial that the pills had been legally obtained. This evidence went beyond that which was necessary to assist the triers of fact. The methods by which legally-obtained prescription pill users transport their pills was surely within the knowledge of the trier of fact as a matter of human experience.