Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240705 DOCKET: C68530

Miller, Favreau and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Nicholas Jenkins Appellant

Counsel: Lisa Freeman, for the appellant Erin Carley, for the respondent

Heard: April 4, 2024

On appeal from the conviction entered on February 22, 2018 by Justice Mark L. Edwards of the Superior Court of Justice, sitting with a jury.

Copeland J.A.:

Endorsement

[1] The appellant was convicted in a jury trial of three counts of trafficking (cocaine, heroin, and fentanyl) and three counts of possession for the purpose of trafficking (also of cocaine, heroin, and fentanyl).

[2] The appellant raises one ground of appeal – that the trial judge erred in law by permitting the Crown to tender the lay opinions of five police officers that the appellant’s conduct observed during surveillance was, or was consistent with, drug trafficking.

[3] I would allow the appeal and order a new trial. The trial judge erred in allowing the five surveillance officers to give the impugned opinion evidence. The Crown did not seek to qualify the five officers as experts. Thus, they could not give expert opinion evidence. In any event, the form of the evidence was impermissible even had they been qualified as experts. Nor was the opinion evidence of the five officers within the scope of lay opinion evidence permitted under the principles enunciated in Graat v. The Queen, [1982] 2 S.C.R. 819. Given the prominence of the opinion evidence in the trial and the risk of misuse of improperly tendered opinion evidence in a jury trial, I would not apply the curative proviso.

Factual background

[4] The Crown’s case was based on the following evidence.

[5] As a result of information received from a confidential informant, officers of the Barrie Police Service Street Crime Unit conducted surveillance on the appellant for a total of six days, between January 6 and 20, 2017. During the surveillance, officers observed the appellant make short stops ranging from two to thirteen minutes at various locations in the City of Barrie. Before and after these stops, the appellant would return to his residence. Except for one occasion when he was on foot, the appellant was driving his car, a Black Honda Civic, during the police surveillance.

[6] In general terms, the surveillance officers described seeing the appellant drive to various locations in Barrie, including people’s homes, gas stations, parking lots, and a Tim Hortons. When the appellant arrived at a location, on some occasions an individual would enter his car and leave within a matter of minutes. On other occasions, the appellant would stop near another vehicle. At no time did any of the surveillance officers observe money, drugs, or anything else change hands.

[7] The appellant was arrested on January 20, 2017. Officers had been conducting surveillance that day. In the afternoon, the appellant arrived at an address and parked his car. He got out and entered the back seat of a black Jeep which the officers had observed several days earlier. The police followed the Jeep to another address. When the Jeep arrived at the second address, a male came out of the house and entered the back seat of the Jeep.

[8] The police then called a takedown, shortly before 5 p.m., and arrested all the occupants of the Jeep. The appellant was seated in the back seat. A woman named Yolanda Robbins was in the driver’s seat. Her boyfriend, Greg Schell, was in the front passenger seat. Ben Armstrong, the male who entered the Jeep at the second address, was also in the back seat.

[9] At the time of the appellant’s arrest, no drugs were found on his person; however, two cell phones and approximately $1,300 bundled with a rubber band were seized from him. On Mr. Schell’s person were found .29 grams of heroin/fentanyl and .48 grams of heroin/fentanyl, packaged in separate pieces of torn grocery bag.

[10] Police obtained search warrants for the appellant’s residence and his car later on January 20, 2017. While they waited for the search warrants to be issued, they conducted surveillance on the appellant’s residence. The appellant lived in a multi-family home. He lived in the basement with Tianna Morgan, his girlfriend. [^1] The appellant’s parents lived upstairs. There was a laundry room in the basement used by all of the residents.

[11] At 6:35 p.m. on January 20, the police observed the appellant’s father, Barry Jenkins, leave the residence and get into his car. Police alerted two uniformed officers to follow the car and arrest Barry. [^2] Four minutes later, the police stopped and arrested Barry. The police searched Barry’s car. In the car, on the floor below the driver’s seat, they found a large black cannister. On later analysis, the contents of the cannister were three baggies of cocaine weighing a total of 20.5 grams and three baggies of a mixture of heroin/fentanyl/caffeine weighing a total of 22.7 grams. The cannister was not tested for fingerprints.

[12] Barry was called as a witness at trial. He testified that he found the cannister on the stairs to the basement and that he had never seen it before. He said that after hearing about the appellant’s arrest, he was on his way to the police station to surrender the cannister. However, he did not provide the officers with the cannister as soon as he was pulled over. Rather, the officers found it when they searched the car.

[13] Search warrants were executed at the appellant’s residence and car later on the evening of January 20, 2017. Nothing of significance was found in the appellant’s car. No drugs were found in the appellant’s apartment. However, police found and seized latex gloves, a respirator mask, a measuring cup with powdery residue (the residue was never tested), a torn plastic grocery bag, two cell phones, $3,780 in an envelope bearing Ms. Morgan’s name, and a digital scale.

[14] Detective Constable Justin Ford was qualified as an expert and testified at trial about the pricing of powder cocaine and heroin cut with fentanyl, the quantities these drugs are commonly sold in, methods of use of both substances, drug paraphernalia and packaging, indicia of trafficking, street terminology, and methods of operation of the drug subculture.

[15] The three counts of possession for the purpose of trafficking related to the drugs found in the cannister. The three counts of trafficking related to the alleged sale of drugs to Mr. Schell.

[16] The appellant testified. He denied any knowledge of the cannister. He said it was not his and the drugs in it were not his. He denied he was involved in trafficking drugs. He testified that the mask, respirator, and cash were related to his freelance autobody repair work. He denied knowledge of the scale.

The trial judge erred in law by admitting the impugned opinion evidence of the five surveillance officers

[17] The trial judge erred in allowing the Crown to lead opinion evidence from five surveillance officers that the appellant’s conduct they observed during surveillance was, or was consistent with, drug trafficking. In particular, he erred in finding that it was admissible as lay opinion evidence.

[18] I reach this conclusion for the same reasons as in this court’s recent decision in R. v. Nguyen, 2023 ONCA 531, 429 C.C.C. (3d) 192, at paras. 48-54. The surveillance officers’ evidence should have been limited to their factual observations during the surveillance.

(i) The impugned opinion evidence

[19] I will not summarize the opinion evidence of all of the five surveillance officers. The substance was the same for all five. Repeatedly, during the course of examinations-in-chief, after each officer explained a particular factual observation of the appellant during surveillance, Crown counsel then asked a question to the effect of: What did you make of this observation, in your experience? I extract excerpts from the evidence of three surveillance officers to provide the flavour of the impugned opinion evidence.

Examination-in-chief of DC Anthony Forrest

Q. Okay. So let me ask you about that first observation you made; the individual coming out of the home, getting into the vehicle, and getting out. You – you said you’ve been a member of the police – Barrie Police since 2008?

A. That’s correct.

Q. Have you had experience with surveilling individuals?

A. Yes.

Q. Okay. What – what do you make of this in your experience?

A. This sort of short trip like, the person’s inside for three minutes. This sort of short meet is very consistent with a drug transaction. It’s also very consistent for drug dealers and buyers to conduct their business in vehicles where they’re afforded some concealment. It’s very common.

Q. Okay. And you’ve had occasion to see that before?

A. Yes, on multiple occasions. [Emphasis added.]

Examination-in-chief of DC Brad Breedon

Q. Okay. Tell me a bit about that observation? I know you’ve been an officer in the street crime unit for two years. Did you make anything of that short interaction?

A. Yes. So from my notes, I do recall that I observed that male attend the vehicle and although I didn’t actually observe him exit the vehicle, I observed him walking away from it a couple minutes later. In my experience as a drug investigator, I believe that is consistent with a drug transaction.

Q. Why is that?

A. Because it’s uncommon for somebody to leave their house, get into somebody else’s vehicle for two minutes and then go back. [Emphasis added.]

Examination-in-chief of Sergeant David Luce

Q. Okay. Tell me about that last interaction. Is there anything you make of that?

A. Well, given the – given what I understand of the accused, and what the investigation was relating to, based on my experience, I’ve investigated hundreds of drug – I’ve conducted hundreds of drug investigations, I believe that to be a drug transaction.

Q. Why?

A. That’s my opinion.

Q. Why is that?

A. The short duration of the visit, quick in and out of the car, just not normal. We had not observed that – that vehicle come into play or into this investigation at that point in time. Those are my observations. [Emphasis added.]

(ii) This court’s decision in Nguyen

[20] In Nguyen, this court considered the same type of evidence from an officer who was not qualified as an expert to give opinion evidence. After giving evidence about surveillance observations of Mr. Nguyen, the officer testified that in his opinion what he had observed – one male picking up or dropping property off to another male – was “consistent with drug-related activity.”

[21] This court held that the trial judge in Nguyen erred in admitting the officer’s opinion evidence. The Court started with the well-established proposition that opinion evidence is presumptively inadmissible: Nguyen at para. 48, citing R. v. D.(D.), [2000] 2 S.C.R. 275, at para. 49. The opinion evidence was improperly admitted in Nguyen because it did not satisfy the admissibility requirements for either expert opinion evidence or lay opinion evidence.

[22] In relation to expert opinion evidence, there were two problems in Nguyen. First, the Crown had not established the officer’s expertise to offer the opinion he provided. Second, the opinion provided by the officer did not meet the necessity requirement for admissibility of expert evidence. The opinion that the conduct of picking up or dropping off property between two people “was consistent with drug-related activity” was not a matter that non-experts – a trier of fact – are unlikely to form a correct judgment about: see also R. v. Gill, 2017 ONSC 3558, at paras. 41-44, per Fairburn J., as she then was.

[23] This court further held that the officer’s opinion evidence – that the conduct observed was consistent with drug trafficking – did not fall within the scope of lay opinion evidence: Nguyen, at para. 53. Lay opinion evidence is admissible where a witness is “merely giving a compendious statement of facts that are too subtle or complicated to narrate separately and distinctly”: Graat, at p. 841. Where a surveillance officer gives evidence about their observations of a suspect (properly admissible), they can relate the evidence of the factual observations they made without providing the further opinion evidence that the conduct observed is consistent with drug trafficking: see also Gill, at paras 43-44.

(iii) Application to this appeal

[24] In this case, on a voir dire that occurred after the officers testified, the trial judge held that the opinion evidence of the five surveillance officers that what they observed the appellant do during the surveillance was, or was consistent with, drug trafficking was admissible as lay opinion evidence.

[25] This was an error. The evidence of the five surveillance officers should have been limited to their observations of the appellant during the surveillance (and of the people he was with, to the extent it was relevant).

[26] The opinion evidence given by the five surveillance officers in this case is indistinguishable from the opinion evidence which this court found to be inadmissible in Nguyen.

[27] First, the Crown did not seek to qualify the five surveillance officers as experts on the indicia of drug trafficking.

[28] Second, the conclusory opinion evidence given by each of the five officers was not necessary for the jury to form a correct judgment about the evidence. The jury was capable of assessing the factual observations described by the officers. In particular, the jury was capable of weighing the shortness of the appellant’s interactions with third parties as a factor that may, in the context of the evidence as a whole, be probative of drug trafficking transactions.

[29] Third, the conclusory opinion that the conduct observed was, or was consistent with, drug trafficking was not within the scope of lay opinion evidence. The jury could understand, and the officers could convey, the factual observations of the appellant’s conduct during the surveillance without the further opinion that the officers believed that the conduct was, or was consistent with, drug trafficking.

[30] To be clear, I am not suggesting that expert opinion evidence could not be led on the issue of indicia of trafficking if a trial judge was satisfied that it met the White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182 admissibility criteria. This court and the Supreme Court have recognized that expert opinion evidence may be tendered on issues related to drug trafficking, such as “chains of distribution, distribution routes, means of transportation, methods of concealment, packaging, value, cost and profit margins”, where the evidence is based on specialized knowledge outside the knowledge of a lay trier of fact: R. v. Sekhon, [2014] 1 S.C.R. 272, at para. 18; Nguyen, at para. 52. [^3]

[31] I would also emphasize that where opinion evidence is tendered on issues related to drug trafficking, it must be limited to providing the jury with evidence in general terms about the area of expertise (for example, drug pricing; trafficking quantities; methods of drug trafficking), which they may consider and, if they accept it, apply as part of their fact finding to decide what inferences or conclusions to draw from other evidence (for example, surveillance evidence). Expert opinion may not extend to conclusions or inferences to be drawn about the accused’s conduct. The inference-drawing process is part of the jury’s fact-finding role, and not the province of the expert witness. Thus, an expert providing opinion evidence about indicia of drug trafficking may not opine that the particular acts of the accused were drug trafficking or were consistent with drug trafficking. Those questions are for the trier of fact: R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330 (C.A.), at paras. 30-31, 98-102; Gill, at para. 44; Sekhon, at paras. 46 and 50; Nguyen, at paras. 50-51; David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 234.

[32] Indeed, in this trial the Crown did lead expert opinion evidence about indicia of drug trafficking. As noted above, the trial judge qualified DC Ford as an expert on this issue. The appellant does not challenge that ruling or the scope of DC Ford’s evidence. However, DC Ford’s opinion evidence about indicia of drug trafficking was properly limited to providing a list of indicia of drug trafficking, rather than a conclusory opinion that the appellant’s conduct as observed during the surveillance was, or was consistent with, drug trafficking.

[33] It is true that defence counsel at trial (not Ms. Freeman) did not object to the impugned opinion evidence from the surveillance officers when it was led by the Crown. Rather, the defence cross-examined the officers on their limited ability to see from a distance what happened when the appellant met with other people during the surveillance; their inability to see what was happening inside a vehicle or behind closed doors; and that they did not actually see anything exchanged during the meetings, and, in particular, did not observe money or drugs change hands.

[34] The defence raised objection to the admissibility of the opinion evidence of the surveillance officers in an application brought after the completion of the evidence and prior to the closing addresses. The defence argued that the impugned evidence from the five officers was opinion evidence and was inadmissible. Defence counsel at trial acknowledged that he should have objected to the opinion evidence from the five surveillance officers at the time it was tendered.

[35] I am not persuaded that this is a case where the late objection by the defence should lead the court to conclude either that there was no prejudice from the impugned evidence or that the defence made a tactical decision not to object earlier.

[36] The cross-examination by the defence about the limits on the surveillance officers’ ability to observe is routine in a surveillance-based trial and does not suggest a tactical decision. Given the nature of the error and the role of the impugned evidence in the trial I can see no tactical reason for the defence not to have objected earlier. Our jurisprudence recognizes that improperly admitted opinion evidence can be very prejudicial, particularly in a jury trial.

[37] I acknowledge that the trial judge was placed in a difficult position by the late objection by the defence. But that did not relieve him of his gatekeeping responsibility to ensure that opinion evidence only be admitted if it fell within a proper exception for either expert or lay opinion: Nguyen, at para. 54. The trial judge failed to exercise his gatekeeping function at the time the opinion evidence was tendered.

[38] It may be that had the trial judge given the jury a clear, sharp instruction to disregard the impugned opinion evidence of the five surveillance officers and to only consider the factual evidence of their observations, this could have addressed the prejudice: Sekhon, at para. 48. Unfortunately, the trial judge did not take that route. Rather, he held that the opinion evidence from the surveillance officers was admissible as lay opinion evidence. This was an error.

[39] For these reasons, I conclude that the trial judge erred in admitting the opinion evidence of the five surveillance officers that their observations of the appellant during surveillance were, or were consistent with, drug trafficking. Their evidence should have been limited to their factual observations during surveillance.

The Crown has not met its burden for the curative proviso to be applied

[40] The Crown argues that if the trial judge erred in admitting the opinion evidence of the five surveillance officers, this court should apply the curative proviso. In particular, the Crown relies on Sekhon and Nguyen, where the proviso was applied to errors involving opinion evidence.

[41] In my view, the Crown has not met its burden for the curative proviso to be applied.

[42] The Crown bears the burden to show that the error caused no substantial wrong or miscarriage of justice, in the sense that there is no reasonable possibility that the verdict would have been different if the error had not occurred. The Crown can meet this burden in one of two ways. The error must either be so minor or harmless that it could not have had any impact on the verdict or, if the error is serious, the case against the appellant must be so overwhelming that any other verdict “would have been impossible to obtain”: R. v. Van, [2009] 1 S.C.R. 716, at para. 34; R. v. Tompouba, 2024 SCC 16, at paras. 55, 74-76.

[43] I acknowledge that in Nguyen and Sekhon, this court and the Supreme Court of Canada applied the curative proviso to errors involving improperly admitted opinion evidence. Both cases are distinguishable from this appeal on the issue of whether to apply the curative proviso.

[44] Regarding the first branch of the proviso analysis, I focus on three reasons why I would conclude that the error was not harmless.

[45] First, unlike Sekhon and Nguyen this appeal is from a jury trial. The risk of misuse of improperly admitted evidence is greater in a jury trial because jurors are not legally trained: Sekhon, at para. 46; R. v. Lewis, 2012 ONCA 388, 284 C.C.C. (3d) 423, at paras. 22, 28. [^4]

[46] Thus, for the purpose of considering the application of the curative proviso, this case is more like Lewis, which was a jury trial, than Sekhon and Nguyen. In Lewis, this court emphasized, at paras. 22 and 28, the risk in a jury trial that a jury will give undue weight to improperly admitted opinion evidence. In this case, as in Lewis, the Crown phrased its questions in eliciting the impugned evidence in a manner that also elicited the experience of the officers in drug investigation surveillance. This had the effect of emphasizing the purported expertise of the officers without actually having them qualified as experts.

[47] Second, the improperly admitted evidence played a significant role in the trial. It was adduced by the Crown through five officers. By contrast, in both Sekhon and Nguyen the improperly admitted evidence came from one officer.

[48] Further, the improperly admitted opinion evidence was given prominence in the Crown’s address to the jury. Repeatedly in her closing address, when Crown counsel (not Ms. Carley) described the various surveillance observations of the officers, she concluded the description with: “Police believe this to be a drug transaction.”

[49] Additionally, the trial judge did not caution the jury about the surveillance officers’ opinion evidence. As noted above, while there is no question the opinion evidence was inadmissible, a short sharp instruction to disregard it may well have cured the prejudice. Rather than tell the jury to disregard the opinion evidence of the surveillance officers, in summarizing the police surveillance observations for the jury, the trial judge repeatedly concluded with the statement that police believed the encounter to be a drug transaction – in one case stating that the police believed this “based on their many years of experience.” Given these references and the absence of an instruction not to rely on the opinion evidence of the surveillance officers, the jury would have understood that it was appropriate for them to rely on the opinion evidence.

[50] These factors distinguish this appeal from Sekhon and Nguyen. In both of those appeals, the appellate court found the improperly admitted evidence was a small part of the trial. I do not reach the same conclusion in this appeal.

[51] Third, the fact that juries do not provide reasons for their verdict also militates against applying the proviso. Sometimes, in an appeal from a judge alone trial, an appellate court is able to conclude from the path of analysis in a trial judge’s reasons that a legal error had no or minimal impact on the analysis. That was the case in Nguyen. Based on its review of the trial judge’s reasons, this court was able to conclude “with confidence” that the trial judge gave “little if any weight” to the improperly admitted evidence: Nguyen, at para. 57.

[52] By contrast, because this appeal is from a jury trial, this court cannot look to reasons in order to discount the possibility that improperly admitted evidence played an important role in the jury’s deliberations.

[53] The Crown also argued that the properly admitted opinion evidence of DC Ford, which included some evidence about indicia of trafficking, is a factor that renders the error of admitting the opinion evidence from the five surveillance officers harmless. I disagree.

[54] The evidence of the five surveillance officers was given in the form of conclusory opinion that what they saw was, or was consistent with, drug trafficking. Even had the five officers been properly qualified as experts, this conclusory opinion was beyond what is permissible as expert evidence, as discussed at para. 31 above.

[55] By contrast, the expert opinion evidence of DC Ford on indicia of trafficking was properly limited to providing the jury with information about the types of things that can be indicia of trafficking. DC Ford did not opine that the appellant’s conduct observed by the surveillance officers was, or was consistent with, drug trafficking. Rather, the form in which DC Ford’s evidence was given properly left to the jury the task of deciding whether the observations described by the surveillance officers should be found, in the context of all of the evidence, to be trafficking.

[56] On the second branch of the proviso analysis, the evidence against the appellant constituted a reasonably strong circumstantial case, but not an overwhelming one. Two factors in particular lead me to conclude that the case against the appellant was not overwhelming. First, when he was arrested in the Jeep on January 20, 2017, following the surveillance, no drugs were found on him or in his car, which he had been in before entering the Jeep. No drugs were found in his residence. The items found in his residence no doubt had probative value on the issue of drug possession and trafficking, but this was not an overwhelming case.

[57] Second, there were live issues at trial about whether the Crown could prove beyond a reasonable doubt that the cannister containing the cocaine, heroin, and fentanyl that was seized from the appellant’s father belonged to the appellant.

[58] The fact that the Crown’s case against the appellant was not overwhelming distinguishes this case from Sekhon. In that case, the majority concluded that Mr. Sekhon’s evidence was “a contrivance from beginning to end” and that the admissible evidence in the Crown’s case was overwhelming in pointing towards his guilt: Sekhon, at para. 54-57.

[59] Finally, the fact that the appellant testified and denied that the cannister with the drugs was his and denied participating in drug trafficking is a factor weighing against applying the curative proviso. Credibility was a live issue in this trial. Although this factor is not an absolute bar to applying the curative proviso, courts should be cautious in applying the curative proviso in cases where credibility is in issue and the error may well have impacted the jury’s credibility assessments: R. v. G.F., [2021] 1 S.C.R. 801, at para. 145; R. v. B. (F.F.), [1993] 1 S.C.R. 697, 79 C.C.C. (3d) 112, at pp. 706-07, 37.

Disposition

[60] I would allow the appeal, set aside the convictions, and order a new trial.

Released: July 5, 2024 “B.W.M.” “J. Copeland J.A.” “I agree. B.W. Miller J.A.” “I agree. L. Favreau J.A.”

Footnotes

[^1]: Ms. Morgan was jointly charged with the appellant on the three possession for the purpose of trafficking counts related to the drugs in the cannister and was also found guilty of those counts. Her matter was not before the panel when we heard the appellant’s appeal. [^2]: I refer to the appellant’s father as Barry because he has the same last name as the appellant. [^3]: I note as well that in some circumstances, an officer’s belief/opinion about the nature of conduct may be admissible as narrative to provide context for investigative decisions by the officer. However, in those circumstances the opinion evidence is not admissible for the truth of its contents and a limiting instruction on the use of the evidence is required. The Crown did not make the argument in this case, either at trial or on appeal, that the surveillance officers’ opinion evidence was in the nature of investigative hearsay. [^4]: I do not suggest there is no risk of misuse of improperly admitted evidence in a judge alone trial. However, in a judge alone trial, an appellate court has the benefit of reasons for judgment which can also inform whether improperly admitted evidence was misused by a trial judge.