Court File and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20230809 DOCKET: C67922
Benotto, Miller and Paciocco JJ.A.
BETWEEN
His Majesty the King Respondent
and
Thanh T. Nguyen Appellant
Counsel: Ravin Pillay, for the appellant Ildiko Erdei and Lisa Mathews, for the respondent
Heard: May 9, 2023
On appeal from the convictions entered on June 18, 2019, by Justice Louise A. Botham of the Ontario Court of Justice.
Paciocco J.A.:
Overview
[1] Thanh Nguyen appeals his convictions of several possession for the purpose of trafficking and possession of proceeds of crime offences relating to drugs and cash found during the search of a suspected drug trafficking “stash house” located in unit #411 of 235 Sherway Gardens Road, in the City of Toronto. He argues that the verdicts are unreasonable. He makes two unreasonable verdict submissions.
[2] First, Mr. Nguyen argues that the verdicts are unreasonable because the trial judge erred by convicting him on a circumstantial case that supported reasonable inferences inconsistent with his guilt, contrary to the principles in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. He also argues, in effect, that the verdicts are unreasonable because the trial judge engaged in illogical or irrational reasoning in coming to the decision that she did.
[3] Second, he argues that the verdicts of guilt are unreasonable because of their “inconsistency” with his acquittal of possession of a firearm that was also located in unit #411.
[4] Mr. Nguyen also argues that the trial judge erred in law in admitting opinion evidence offered by a police officer whose expertise was never established that his observations of Mr. Nguyen were consistent with drug trafficking.
[5] For the reasons that follow, I would reject the unreasonable verdict arguments because they have not been made out. Although I am persuaded that the trial judge erred relating to the opinion evidence offered by the police officer, I would find this error to be harmless.
[6] I would therefore dismiss Mr. Nguyen’s appeal.
Material Facts
[7] Based on information and aided by the installation of a tracking device on Mr. Nguyen’s car, police conducted surveillance of Mr. Nguyen over a two-week period in October of 2017. During that surveillance he was observed attending 235 Sherway Gardens Road on four occasions. It is evident he did not have the means to control his entry into the underground garage where he parked, as he was seen on two occasions entering the underground parking garage by tail-gaiting other vehicles. However, there was direct and circumstantial evidence linking him to unit #411 and demonstrating that he had the means to enter that unit. This evidence included the following.
[8] On October 16, 2017, at 10:13 p.m., Mr. Nguyen was observed on video security footage taking the elevator to the fourth floor, the floor on which unit #411 was situated.
[9] On October 17, 2017, the security camera captured Mr. Nguyen taking the elevator to the fourth floor on two occasions, first at approximately 11:20 a.m., and again at approximately 2:42 p.m. On this latter occasion Mr. Nguyen was captured shortly before 3:07 p.m. getting back onto the elevator on the 4th floor in the company of Kevin Tran, who was himself linked to unit #411 during the investigation, including through his possession of a key to the unit when he was arrested.
[10] On October 23, 2017, at about 3:19 p.m., an undercover officer directly observed Mr. Nguyen entering unit #411 with a key. On that occasion he entered carrying a red reusable Roots bag. He was next seen at 4:51 p.m., entering his car in the underground parking lot, carrying a different bag, a large brown bag that he was carrying with two hands. When a search warrant was executed in unit #411 at 9:19 p.m. that same day, an identical Roots bag to the one Mr. Nguyen had been carrying when he entered the unit was found containing bundles of cash. It was located in a cabinet in the bedroom where the bulk of the narcotics were located, including in other drawers.
[11] Notably, the officer who executed the search warrant entered unit #411 using a key that was seized from Mr. Nguyen during his arrest shortly before the search. It is also noteworthy that the locks installed in the unit that Mr. Nguyen’s key accessed were not the same locks that had been installed in the unit at the time it was rented.
[12] The October 23, 2017, incident was not the first occasion where Mr. Nguyen carried a different container out of 235 Sherway Gardens Road than the container he had carried into the building. On October 16, 2017, he had a brown bag with him when he took the elevator to the fourth floor but was carrying a camouflage backpack with black straps when he subsequently exited an elevator in the parking garage.
[13] While under surveillance Mr. Nguyen had also engaged in a number of brief meetings with others, under the following circumstance.
[14] On October 16, 2017, at 8:00 p.m., a man was seen opening the trunk of Mr. Nguyen’s car on Dee Avenue, and then leaning inside, appearing to put something into the trunk. Mr. Nguyen walked up to the man and spoke to him before driving away.
[15] Immediately after this event Mr. Nguyen drove to a nearby parking lot and waited for, and then met, a different man who was driving a black Acura. He entered this man’s car, the interior lights went on, the men appeared to be looking down, and then Mr. Nguyen exited, entered his own vehicle, and drove away. It was approximately two hours later that Mr. Nguyen paid his visit to the fourth floor of 235 Sherway Gardens Road, carrying a brown bag, and then leaving with the camouflage backpack.
[16] On October 17, 2017, after again being observed at approximately 12:03 p.m. leaving with a camouflage backpack after visiting the fourth floor of 235 Sherway Gardens Road, Mr. Nguyen picked up an unknown male in a nearby Metro grocery store parking lot before driving into the underground parking lot. At 12:19 p.m., that unknown male was seen exiting Mr. Nguyen’s vehicle with a grey backpack that he was not observed to be holding when he got into the vehicle. This unknown male then got into another vehicle, later identified to be owned by Kevin Tran.
[17] The final brief meeting of note occurred on October 23, 2017. After Mr. Nguyen left the 235 Sherway Gardens Road underground parking lot at approximately 4:51 p.m., subsequent to placing a brown bag in the trunk of his vehicle, he was followed to Markham. At 6:04 p.m., he drove into an underground parking garage. Before officers could approach the vehicle, it exited the underground parking garage, and was stopped at 6:06 p.m. Mr. Nguyen, the only occupant, was arrested. When the vehicle was searched, the brown bag that he had been observed placing in the trunk before his departure from 235 Sherway Gardens Road was gone and it could not be located in the garage. Mr. Nguyen was in possession of $1,355 in cash, found in the front pocket of his pants.
[18] The search warrant for unit #411 was swiftly obtained after Mr. Nguyen’s arrest. Officers did not enter and begin the search until 9:19 p.m. that evening. During the search the police confirmed that there was no clothing and no bed in the unit, but there were two devices present for barricading the front door. The search yielded 1,450.33 grams of cocaine; 1,409.92 grams of fentanyl; 487.72 grams of heroin, 9.23 grams of heroin cut with fentanyl; and 1,010.68 grams of ketamine and methamphetamine. Most of the narcotics were located in the drawers of a large cabinet in the bedroom, along with the Roots bag of cash. A partially open grey one kilo package of what proved to be drugs was visible on an open shelf of the bedroom cabinet, and a plastic bag containing a brown substance which also proved to be drugs was photographed on a balcony step in the living room, but there was testimony that the plastic bag may have been moved before the photograph was taken. Scales and packaging materials were in the open.
[19] A box containing an operational firearm was found in a closed drawer in the living room TV stand along with ammunition. Mr. Tran was linked circumstantially to the firearm through DNA evidence, but there was no forensic evidence connecting Mr. Nguyen to the firearm.
[20] The foregoing evidence was presented at Mr. Nguyen’s trial. After P.C. Gajraj testified to having observed the October 17, 2017, meeting described in para. 14 of this judgment, the Crown asked him, “[D]id you form any opinion on, on what you had seen?” P.C. Gajraj replied:
Yeah I, I formed the opinion that it was consistent with one male picking up or dropping off property to each other. And in this, based on this investigation of what we, we – the information received, it was consistent with drug-related activity.
[21] Although the Crown had made no prior effort to qualify P.C. Gajraj to give this opinion, the Crown then determined through direct questions he asked P.C. Gajraj that P.C. Gajraj had been with the Toronto Police Drug Squad for seven and a half years and had been involved in “hundreds” of investigations. None of this testimony attracted an objection, no ruling on admissibility was made by the trial judge, and P.C. Gajraj was not cross-examined on either the opinion he gave or his related experience.
[22] The trial judge found Mr. Nguyen to have been in constructive possession of the narcotics and cash uncovered in the unit #411 search, and she found that he was in possession of the cash he had on his person at the time of his arrest. Mr. Nguyen was convicted of five counts of possession of narcotics for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C., 1996, c. 19, and of two counts of possession of proceeds of crime, contrary to s. 354(1) of the Criminal Code, R.S.C., 1985, c. C-46.
[23] The trial judge acquitted Mr. Nguyen of charges related to the firearm that was discovered in the TV stand, based on a reasonable doubt that Mr. Nguyen knew the firearm to have been in unit #411.
Issues
[24] The issues raised by Mr. Nguyen can be analysed conveniently as follows:
A. Did the trial judge arrive at an unreasonable verdict by convicting Mr. Nguyen in the face of other available innocent inferences, or by basing the verdict on illogical or irrational reasoning?
B. Are the verdicts inconsistent and therefore unreasonable?
C. Did the trial judge err in admitting opinion evidence from P.C. Gajraj?
[25] I would reject these grounds of appeal.
Analysis
A. Did the trial judge arrive at an unreasonable verdict by convicting Mr. Nguyen in the face of other available innocent inferences, or by Basing the verdict on Illogical or Irrational reasoning?
[26] Mr. Nguyen argues that the verdicts of guilt are unreasonable because the trial judge’s findings are contrary to the principles in Villaroman, as the evidence in the circumstantial case against him yielded reasonable inferences consistent with his innocence. Mr. Nguyen also identifies what he sees to be shortcomings in the evidence and the trial judge’s reasonings.
[27] Relatedly Mr. Nguyen submits that the trial judge reversed the burden in making the following underscored findings:
There is nothing in the evidence from which an inference could be drawn that [Mr. Nguyen] might have had an innocent reason to be at the unit. He was not occupying the unit as a place of residence. There was no evidence from which an inference could be drawn that anyone else was occupying that unit. So there is no basis upon which an inference might be drawn that he was there as a mere visitor. [Emphasis added.]
[28] I would reject each of these submissions. I will begin by stating the relevant legal principles.
[29] Villaroman instructs at para. 35, that accused persons should not be required to prove facts to support explanations other than guilt. They are entitled to be acquitted if there is a reasonable doubt left after considering all of the evidence. “If there are reasonable inferences other than guilt [remaining in a circumstantial case], the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”: Villaroman, at para. 35. It is a legal error for a trial judge to render a decision based on an erroneous statement or understanding of the Villaroman principles. However, even if a trial judge has not done so, a trial judge will have rendered an unreasonable verdict, contrary to s. 686(1)(a)(i) of the Criminal Code, by inferring guilt in circumstances were a reasonable jury, properly instructed and acting judicially could not have concluded on the evidence as a whole that no inferences consistent with innocence remain open. Put simply, a conviction secured in violation of the Villaroman principle is an unreasonable verdict, satisfying the test for unreasonable verdicts identified in R. v. Yebes, [1987] 2 S.C.R. 168, at pp. 185-87, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.
[30] A verdict in a judge-alone trial may also be unreasonable if the verdict is based on findings of fact or inferences that are reached illogically or irrationally, or in a manner that is demonstrably incompatible with the evidence: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 97-98, per Fish J. (dissenting on other grounds); R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 20-21, 44‑45.
[31] Mr. Nguyen does not contend that the trial judge erred in law by misstating or misapprehending the Villaroman principles. It is his position that the trial judge’s findings of guilt are unreasonable in both of the senses I have just described, specifically that: (1) the evidence was insufficient to enable a properly instructed reasonable trier of fact to find that there were no remaining inferences inconsistent with guilt, and (2) the trial judge engaged in illogical or irrational reasoning in coming to the decision that she did. I will begin with the alleged reasoning errors.
[32] The first reasoning error Mr. Nguyen identifies is the reliance that the trial judge placed on the Roots bag. He argues that it was unreasonable for the trial judge to infer that the Roots bag containing the cash discovered during the search was the same Roots bag that Mr. Nguyen was observed carrying on this way into the unit at 3:19 p.m., several hours before that search. He argues that this inference is unreasonable because reusable shopping bags are extremely common. He also suggests that an unknown person may have entered the unit, which had not been kept under surveillance between Mr. Nguyen’s last visit and the search, leaving the Roots bag full of cash behind.
[33] I would not accept these submissions. The search that resulted in the discovery of the Roots bag began approximately four hours after Mr. Nguyen was observed entering unit #411 with a similar bag. That timing, the fact that Mr. Nguyen did not have a Roots bag with him when observed leaving the building after having been in unit #411, and the descriptive match between the bag that Mr. Nguyen carried and the bag recovered in the search, enabled the trial judge to infer not only reasonably, but powerfully, that the Roots bag seized during the search was the bag Mr. Nguyen had been observed carrying into unit #411. This inference was further supported by Mr. Nguyen’s possession of a significant amount of cash when arrested later that same day, the same commodity found in abundance in the Roots bag.
[34] The second reasoning error Mr. Nguyen identifies is the trial judge’s finding that “[t]he evidence establishes that Mr. Nguyen did attend at the unit and that he had a key to the unit and therefore an ability to access it independently.” Mr. Nguyen argues that these findings are incompatible with the fact that he was not seen to be attending the unit on all four occasions he was followed to 235 Sherway Gardens Road, he had a key only on the fourth occasion, and he did not have the means to access the parking garage.
[35] Again, I disagree. The facts outlined in paras. 7-11 of this judgment provide a sound basis for the inferences the trial judge made that Mr. Nguyen had the means to access to the unit, and repeatedly did so.
[36] Finally, Mr. Nguyen argues that the trial judge erred by inferring that no one appeared to be living in unit #411, as there was furniture in the unit that could be used to socialize and watch television, as well as dishes in the sink. None of this evidence undercuts the trial judge’s inference, which was entirely reasonable given the absence of clothing in the unit, the absence of a bed in the unit, and the indicia that the unit was indeed a stash house, a place to store narcotics away from one’s own home.
[37] The balance of Mr. Nguyen’s arguments about the insufficiency of the evidence focuses on things that were missing from the evidence. He argues that these shortcomings in the evidence leave an inadequate foundation for a reasonable conviction. In his submissions he noted that no drugs were found in the search of Mr. Nguyen’s residence; he was not observed in any hand-to-hand transactions or receiving money from anyone; there was no evidence that the four cell phones found in the console of his vehicle were functional; there was no DNA or fingerprint evidence linking him to the Roots bag; and no fingerprints or DNA from him found on any of the cabinets or packing materials in unit #411, and the drugs and cash were not in plain view.
[38] I am not persuaded by these submissions. As I have explained, there was ample evidence linking Mr. Nguyen to unit #411, a place that was obviously functioning as a stash house. As I have indicated, Mr. Nguyen was linked to that unit not only through observation and strong circumstantial inferences that he visited unit #411 when attending 235 Sherway Gardens Road, but by his possession of a key to the modified lock that had been installed in unit #411, a lock change that was clearly intended to restrict those who could enter. Given his possession of a key and his repeated presence at the unit, he was clearly entrusted to be around thousands of dollars worth of drugs. The fact that this formidable case could have been strengthened even further if drugs had been found at Mr. Nguyen’s residence, or had he been seen directly engaged in hand-to-hand transactions, or if there was forensic evidence linking him to unit #411, does not establish the unreasonableness of a verdict.
[39] This evidence against Mr. Nguyen was further fortified by circumstantial proof that on at least two occasions, perhaps more, he had moved carrying cases to and from unit #411 where drugs were subsequently found, including the Roots bag containing what could fairly be inferred to be the proceeds of crime. Even leaving aside the fact that some of the drugs that were found in the unit would have been visible without opening drawers, a clear inference was available that Mr. Nguyen availed himself of access to the bedroom drawers. The Roots bag that can be linked circumstantially to Mr. Nguyen was found inside one of those drawers, and since he entered unit #411 with a key, it is unlikely anyone else was present when it was placed there. This evidence therefore supports reasonable inferences that Mr. Nguyen had knowledge and control over the drugs and proceeds kept in the stash house.
[40] I would also note that, given that all of the drugs in unit #411 were clearly part of a drug trafficking enterprise that Mr. Nguyen was participating in, it was not necessary for the Crown to prove beyond a reasonable doubt that Mr. Nguyen had actual knowledge of every particular package of drugs or each bundle of cash in order to convict him of possession of all of the drugs and bundles of cash in unit #411. His guilt of constructive joint possession of all of the drugs and proceeds would follow from proof of his involvement in the drug trafficking enterprise, coupled with his knowledge that there were drugs and proceeds in connection with that drug trafficking enterprise in the stash house. That proof was readily available.
[41] Mr. Nguyen argues that, even if an inference of constructive possession would otherwise have been available against him, it would be unreasonable to make that inference given proof that Mr. Tran also had access to the unit and may have been the one who had possession of the drugs and proceeds. The problem with this argument is that Mr. Nguyen does not have to have exclusive possession of the drugs and proceeds to be guilty. The evidence implicating Mr. Tran in no way exculpates Mr. Nguyen or compels innocent inferences. Indeed, there was evidence that they were engaged together in drug trafficking, including their presence at the unit together on October 17, 2017, a unit both of them had keys to access, coupled with the Metro parking lot meeting between Mr. Nguyen and someone who was driving Mr. Tran’s car. The trial judge explicitly considered whether the evidence relating to Mr. Tran exculpated Mr. Nguyen and reasonably found that it did not.
[42] Mr. Nguyen also argues that the evidence as a whole is consistent with him having an innocent purpose for being in the unit and the trial judge erred by failing to recognize this. I disagree. As the trial judge concluded, there was no basis for finding that Mr. Nguyen could have simply been visiting at the unit because there was no available inference that anyone lived there. There was strong evidence, including relating to the Roots bag, to link Mr. Nguyen’s presence to drug trafficking. It was not unreasonable for the trial judge to conclude that the whole of the evidence did not leave open this or any other competing inference inconsistent with guilt.
[43] In sum, this is not a case where the circumstantial evidence of Mr. Nguyen’s involvement was insufficient to enable a reasonable trier of fact to conclude that his guilt of the drug trafficking offences is the only reasonable verdict, nor has Mr. Nguyen established that the guilty verdicts on the drug trafficking and possession of proceeds charges for which he was found guilty were based on illogical or irrational reasoning.
[44] Finally, I would also reject the submission that the trial judge erred by reversing the burden of proof by making the comments I have underscored in para. 27 of this judgment. In her decision, the trial judge spoke explicitly about the Crown having to prove guilt in this circumstantial evidence case, and she correctly identified the standard of proof that applied. Moreover, when the impugned passage is read as a whole, it is clear that the trial judge based her finding that “there is no basis upon which an [innocent] inference might be drawn” not only on the absence of affirmative evidence that Mr. Nguyen had an innocent purpose at unit #411, but on affirmative evidence that he did not live there, and circumstantial evidence that no one else was occupying the unit. The underscored comments provide no basis for concluding that the trial judge reversed the burden of proof.
B. ARE THE VERDICTS INCONSISTENT AND THEREFORE UNREASONABLE?
[45] Mr. Nguyen argues that the trial judge reached inconsistent verdicts in finding him guilty of possessing the drugs and proceeds, but not guilty of possessing the firearm. He relies on the decision in R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381, at para. 8, which holds that “when the evidence on one count is so wound up with the evidence on the other that it is not logically separable, inconsistent verdicts may be held to be unreasonable.” Mr. Nguyen argues that in this case, the evidence of the contents of all of the objects in unit #411 is so wound up together that the trial judge’s verdicts are conflicting. Put otherwise, he is arguing that it was not available on the evidence for the trial judge to have convicted Mr. Nguyen of possessing the drugs and the proceeds, but not the gun.
[46] I would reject this ground of appeal. There was ample evidence supporting the finding that Mr. Nguyen was involved in the drug trafficking enterprise that was obviously being conducted out of the stash house. In the circumstances I have described his knowledge and control of the drugs and proceeds in the stash house could not seriously be questioned.
[47] The firearm, on the other hand, was the sole item of its kind in the stash house and was found inside a closed drawer of the TV console, a location different from where the drugs were stored. It bore Mr. Tran’s DNA, who had the means to enter the stash house without Mr. Nguyen. In these circumstances, the link between Mr. Tran and the firearm was obvious, but the link between Mr. Nguyen and the firearm less so. There was no evidence arising out of the surveillance or otherwise that Mr. Nguyen had a firearm in the days leading up to his arrest, and no evidence linking him to this firearm. In these circumstances, the trial judge gave Mr. Nguyen the benefit of the doubt that perhaps Mr. Tran alone was responsible for the firearm being in the drawer. In my view, her finding that the Crown had proved that Mr. Nguyen had possession of the drugs is not inconsistent with her doubt about whether Mr. Nguyen also had possession of the firearm. I would dismiss this ground of appeal.
C. DID the trial judge err in admitting opinion evidence from P.C. GaJraj?
[48] Mr. Nguyen argues that the trial judge erred by permitting P.C. Gajraj to provide expert testimony without being qualified to do so. As I will explain, I am not persuaded that the opinion he offered constituted expert evidence, but whether it was expert opinion evidence or not, opinion evidence is prima facie inadmissible. “A basic tenet of our law is that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience”: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49. In my view, whether it was an expert opinion or not, the opinion expressed by P.C. Gajraj did not satisfy the admissibility requirements of either expert opinion evidence, or lay opinion evidence. This evidence should not have been admitted.
[49] The opinion P.C. Gajraj provided did not satisfy the rule for expert opinion evidence if for no other reason than that the Crown did not discharge its obligation of establishing P.C. Gajraj’s expertise to offer the opinion he provided: R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-25; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19.
[50] Moreover, the opinion he offered arguably did not meet the necessity requirement of the admissibility test for expert evidence. As Major J. has explained, “expert evidence must be necessary in order to allow the fact finder: (1) to appreciate the facts due to their technical nature, or; (2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge”: D.D., at para. 47 quoting J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 620. It is helpful for me to repeat the impugned opinion evidence to develop the point I am making. In response to the Crown’s request for his opinion P.C. Gajraj said:
Yeah I, I formed the opinion that it was consistent with one male picking up or dropping off property to each other. And in this, based on this investigation of what we, we – the information received, it was consistent with drug-related activity.
[51] The observation that P.C. Gajraj made that the interaction he observed “was consistent with one male picking up or dropping off property to each other” was not technical, nor is it a conclusion on a matter that ordinary persons – non‑experts – are unlikely to form a correct judgment about. It is obvious that exchanges of property occur in drug transactions. It therefore takes no expertise to infer that an exchange that a drug trafficking suspect participates in is “consistent with drug‑related activity”.
[52] To be sure, it is not uncommon for expertise to be required to provide opinions related to drug trafficking. In R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, for example, an expert witness provided testimony about “chains of distribution, distribution routes, means of transportation, methods of concealment, packaging, value, cost and profit margins” (at para. 18), much of which would have required specialized knowledge beyond what may ordinarily be acquired by police officers without specific training. But I am far from persuaded in this case that the trial judge, without the testimony provided by C.P. Gajraj, could not have recognized that the transaction C.P. Gajraj described was consistent with drug trafficking. This opinion therefore could not satisfy the necessity requirement of the expert opinion rule. Quite simply, the trial judge could have formed the same conclusion from the facts C.P. Gajraj described without his opinion being shared.
[53] For the same reason I have just expressed, at least some of the opinion offered by C.P. Gajraj does not satisfy the test for the admission of lay opinion evidence. Lay opinion evidence is admissible where, in offering their opinions, witnesses “are merely giving a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly”: R. v. Graat, [1982] 2 S.C.R. 819, at p. 841. I accept that C.P. Gajraj may not have been able to fully and accurately communicate the nature of the interactions he observed without describing what the interaction looked like – “one male picking up or dropping off property to each other” – but he did not have to offer the opinion that the interaction he saw was consistent with drug trafficking to describe effectively the factual observation he had made. This case is not like R. v. Douglas, 2017 ONCA 609, at paras. 7, 12, where an officer was permitted based on ordinary experience he had acquired as a police officer to offer a lay opinion that a particular substance appeared to be crack cocaine. That officer could not have effectively communicated the likely nature of the substance simply by describing its colour and consistency. In my view, C.P. Gajraj therefore should not have offered that part of his opinion.
[54] The absence of objection by defence counsel has little effect on this ground of appeal. Given how prejudicial opinion evidence can be, trial judges are assigned a gatekeeping role: White Burgess, at para. 16. Where a witness is asked to provide an opinion without the questioning party first demonstrating the application of an exception, it is prudent for trial judges to raise the issue to ensure that inadmissible evidence is not received.
[55] Even though technically inadmissible evidence was received, the error was “so harmless or minor that it could not have had any impact on the verdict”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34. I would therefore apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code and dismiss this ground of appeal on the basis that the error has not resulted in a substantial wrong or a miscarriage of justice.
[56] This was a trial by an experienced trial judge. The inadmissible opinion was not offered by a witness of impressive credentials who the trial judge would be likely to defer to, nor was it highly technical and resistant to critical assessment. The inadmissible opinion was quite benign, offering a conclusion that the trial judge could easily understand and draw without reliance on that opinion.
[57] Moreover, it can be said with confidence that the trial judge gave this evidence little if any weight. In providing a general narration of the evidence in the case, and without specific reference to C.P. Gajraj’s opinion, the trial judge said of Mr. Nguyen, “He was also observed by various police officers to engage in conduct which they characterized as consistent with drug trafficking.” In explaining her reasons for conviction, the trial judge made no reference to this evidence or to anyone else’s opinion about what Mr. Nguyen was up to, focusing instead on his conduct proved by the Crown and drawing her own conclusions from it.
[58] I would deny this ground of appeal.
Conclusion
[59] I would dismiss Mr. Nguyen’s conviction appeal. He filed a notice of abandonment of the sentence appeal he initially brought. I would also dismiss his sentence appeal, as abandoned.
Released: August 9, 2023 “M.L.B.” “David M. Paciocco J.A.” “I agree. M.L. Benotto J.A.” “I agree. B.W. Miller J.A.”