Court File and Parties
Ontario Court of Justice
Date: 2014-11-26
Court File No.: Central East - Newmarket 4911-998-12-05329-04; -05
Between:
Her Majesty the Queen
— and —
Yuk Yuen Lee and Hong Zhen Li
Before: Justice D.S. Rose
Heard on: November 4, 5, 6, and 7, 2014
Ruling on Admissibility of Expert Witness
Released on: November 26, 2014
Counsel
C. Shirtliff-Hinds, M. Guirguis — counsel for the Crown
R. Wellington — counsel for the accused Hong Zhen Li
The accused Yuk Yuen Lee — on his own behalf
ROSE J.:
Introduction
[1] Mr. Lee is charged with Production of Marihuana (x2), Possession of Marihuana for the Purpose of Trafficking (x2), Trafficking Marihuana and Theft of Hydro. Hong Zhen Li is co-accused with Mr. Lee on some of those charges, namely Possession of Marihuana for the Purpose of Trafficking, Production of Marihuana and Trafficking Marihuana. The trial commenced on November 3, 2014 and has proceeded continuously through to November 7, when the Crown applied to have D.C. Robinson of the York Regional Police Force qualified as an expert to give expert opinion evidence. This is a marihuana case and the proposed area of qualification is:
Methods of consumption; methods of distribution, including production, possession and trafficking; pricing; concealment and packaging of marihuana; subculture, including associated street terminology; and method of marihuana production.
[2] Similarly, the Crown seeks to have the report of D.C. Robinson admitted as evidence on the trial. That report is Exhibit 2 on this voir dire. Conversely, Mr. Wellington, counsel for Ms. Li, and Mr. Lee himself oppose the Crown's motion, chiefly on the basis of bias. They argue that D.C. Robinson is from the same police unit as the principal police investigators, and has himself conducted surveillance prior to the execution of the search warrants in this case, which lead to the production charges now before me. Therefore, they claim, he should not be permitted to give an expert opinion in this trial.
Factual Background
[3] During the course of the trial the Crown called numerous police witnesses from the York Regional Police Force who investigated three locations relevant to this case: 434 Birchmount Road; 7275 Rapiston Court in Mississauga; and 527 Carlton Road, Markham. The Carlton Road address plays less of a significant role in this ruling.
[4] D.C. Robinson is a member of York Regional Police, and also a member of the same unit that investigated the two production facilities in evidence at this trial. He testified that he became involved in the investigation on May 21, 2012, when he went to 434 Birchmount to make static observations. On May 22, 2012 he started obtaining "tombstone" information for that address, meaning utility and ownership information for that building. He went to 434 Birchmount again on the evening of May 28, 2012, with another officer, to walk its perimeter. At that time he smelled the odour of marihuana emanating from the building. He heard blowers at 434 Birchmount too. On June 2, 2012 he again went to 434 Birchmount to observe the vehicles parked there, and follow them as they left that location. He followed one of them, a Brown Montana minivan with licence plate BERB 778, from 434 Birchmount ultimately to 7275 Rapiston Court.
[5] On June 8, 2012, D.C. Robinson went to 7275 Rapiston Court and observed blowers on the building, and that some of its windows had an orange hue, though they were mostly covered up. He put that together with the smell of marihuana coming from the building and surmised that it contained a marihuana grow op.
[6] On June 12, 2012, D.C. Robinson was again at 7275 Rapiston Court making observations, but cannot recall what he saw. On June 13, 2012, he was at 7275 Rapiston when he saw a Blue Honda Odyssey with licence plate BHYJ 826 leave the building and proceed to a business called Princess Auto. The male driver entered Princess Auto and was then identified as the accused before the court, Yuk Yuen Lee.
[7] On June 14, 2012, Detective Robinson opened a storage locker containing either one or two garbage bags which had been seized by D.C. Byard from a dumpster. He was unclear in his evidence if the locker had one or two bags in it. Byard gave evidence that the bag(s) had been deposited there by the accused, Hong Zhen Li. Detective Robinson opened and processed the bag(s). He found that the bag(s) contained a total of 11.1 kg of marihuana clippings and some items consistent with marihuana production, namely fertilizer, rubber gloves and growing blocks.
[8] On June 25, 2012, he went back to 7275 Rapiston and heard blowers operating.
[9] On June 26, 2012, D.C. Robinson went to 527 Carlton Road when that residence was the subject of a search warrant. Ultimately he went to 434 Birchmount Road, which had also been the subject of a search warrant. He assisted in the dismantling of the marihuana production facility that was found there. On June 27, 2012, D.C. Robinson attended at 7275 Rapiston to assist with the dismantling of the marihuana production facility found there. On June 28, he was back again at 434 Birchmount to complete the dismantling of that marihuana production facility.
[10] I outline D.C. Robinson's involvement in the investigation not to determine how much or how little of his evidence on the trial proper I accept, but simply to highlight the nature of his involvement in this case aside from being a proposed expert witness.
[11] I consider it relatively uncontroversial for purposes of this ruling that both 434 Birchmount Road, and 7275 Rapiston Court were ultimately found to contain very large marihuana production facilities. The evidence so far in this trial includes pictures (for example Exhibits 25 and 45), which depict several thousand plants at each location. For purposes of this ruling, there is a common sense inference available from the evidence so far that each location had a large scale marihuana grow operation. I am not rendering judgment on the ultimate verdict, but merely situating the proposed expert evidence in the context of the trial so far.
[12] D.C. Robinson authored a report dated October 7, 2014. That report opines the following:
i. That the marihuana production facility at both 434 Birchmount Road and 7275 Rapistan Court in Mississauga were for a commercial purpose, and not for personal consumption (para. 5a, paras. 21, 23, 24);
ii. Pricing and distribution of cannabis marihuana (paras. 5b, 11 – 18, 25);
iii. The marihuana production facilities were both high level and sophisticated (para. 9);
iv. "Investigating officers" attended at 434 Birchmount Road on May 28, 2012 and detected an odour of marihuana (para. 10e);
v. Personal Consumption of Marihuana (paras. 19 – 20); and
vi. Rooms within both industrial units were constructed for the sole purpose of cultivating marihuana (paragraph 22).
The Objection
[13] Mr. Lee himself, and Mr. Wellington on behalf of Ms. Li, have argued that the opinion evidence of D.C. Robinson should not be received at this trial because he is biased. The claim is chiefly grounded in the evidence heard thus far, that D.C. Robinson did field investigation of both 434 Birchmount and 7275 Rapiston well in advance of any search warrant application. The argument continues to assert that in that investigation he formed his own opinions, which cannot be separated from his expert opinions. Put another way, the defence claims that he is biased because he is a police officer who is giving an opinion on the results of his colleagues' investigation and, for that matter, his own. Generally speaking, the concern that a proposed expert is biased mirrors many examples of miscarriages of justice because of the lack of an independent and impartial expert.
Principles
Legal Test for Admissibility
[14] In R. v. Mohan, the Supreme Court set a four-part test to govern admissibility of expert opinion evidence. These are: necessity; relevance; absence of an exclusionary rule; and a properly qualified expert. More recently, the Ontario Court of Appeal restructured the Mohan test in R. v. Abbey, to determine threshold reliability of expert evidence considering the four Mohan factors. This initial stage in the analysis is rule-based, based on the four factors from Mohan. At a second stage, the Court exercises its gate-keeping function to perform a cost-benefit analysis. This gatekeeper function allows the trial judge to exercise a residual discretion to exclude evidence which may potentially harm the trial process. Caution is required insofar as the expert opinion must not be allowed to "swallow…the fact finding function of the court…."
Bias – A Threshold Issue or a Weight Issue?
[15] Other criminal cases have considered bias and impartiality on the part of a proposed expert witness, but that body of case law, in this jurisdiction, is not as deep as one might expect. In R. v. Docherty, Justice Wein found that a defence psychiatric expert should not be admitted because an otherwise qualified expert was too biased. That expert was the father of one of the defence counsel, and that fact was not disclosed in the proposed expert report. According to Wein J., the rules on admission of expert testimony are "predicated on impartiality." The witness' relationship to the defence lawyer created an apprehension of bias, as well as the possibility of a subconscious bias, both of which rendered the expert and his report inadmissible.
[16] In R. v. L.K., Justice Trotter delineated expert impartiality on the one hand, and expert independence on the other. The common ground between the two is the "…compromising lack of objectivity and potential partisanship…" of the proposed expert. In L.K., the expert was proposed by the Crown to give evidence before the jury on the issues surrounding the disclosure of, and harm suffered because of, sexual abuse. The proposed witness, Dr. Coolbear, was apparently so argumentative during the voir dire, and so hostile to the defence, that she was not admitted as an expert. Trotter J. found that the witness' lack of independence posed a serious risk to overwhelm the fact finding mission of the jury due to the combination of the expert's aura of prestige and her lack of independence.
[17] In R. v. Van Bree, Justice Annis held that the apprehension of bias is a "…scalable standard." The proposed expert testimony will be inadmissible at trial if a reasonable person would infer that there was a potential, or that it was likely or probable, or that it was strongly suggestive, that the proposed expert would testify with partiality and a lack of objectivity so as to favour one party over another. He applied that test in the case before him as one reason to exclude a proposed police expert witness' testimony that the accused's possession of a relatively small amount of Oxycodone was for the purpose of trafficking. Annis J. did allow the expert to testify before the jury about the general culture, and indicia, of drug trafficking.
[18] More recently, in R. v. Natsis, Justice Kozloff of this Court conducted an exhaustive review of the jurisprudence, concluding that even where the proposed expert opinion meets the four part test in Mohan, the trial judge nonetheless retains a residual discretion, as gatekeeper, to exclude such evidence where the bias or impartiality "…is so tainted by bias or partiality as to render it of minimal or no assistance."
[19] This is not the first time that the admissibility of a police drug expert has been challenged for bias. For example, in R. v. Clouden, the proposed police drug expert was a member of the same police unit which investigated and arrested the appellant. That expert testified that the Appellant possessed the controlled substance for the purpose of trafficking. The Appellant had argued that the trial judge erred in admitting such testimony, but the Appeal was dismissed because the Alberta Court of Appeal found that the trial judge didn't require expert evidence to come to a finding that 1 kg of cocaine was not for personal use. This, they found, was a "common sense" finding. As such, the issue of bias was not addressed by that Court. Inferentially, it appears that the Court of Appeal seems to have found that there are some areas of police drug witness evidence which are so commonsensical as to not require expertise.
[20] Two recent appellate decisions about the reception of experts in drug cases are of considerable guidance. In R. v. Sekhon, the Supreme Court found that the trial judge erroneously allowed an expert to testify that, in his opinion, those importing controlled substances are never blind to the fact of the illegal nature of what they carry into Canada. Recently, in R. v. Singh, the Ontario Court of Appeal found that the trial judge erred in receiving expert evidence that the accused was: associated with organized criminal elements; must have known about the large amount of cocaine he was attempting to smuggle into Canada; and that he was not telling the truth about his lack of knowledge concerning the contraband. The expert had other opinion evidence to give in Singh, namely the general nature of how commercial vehicles are used by organized crime groups to transport large amounts of contraband across the border, and the general role of drug couriers within those groups. He also had evidence to give concerning normal trucking practises. These last three areas of evidence were not objectionable.
[21] The Court in Singh identified those portions of the expert witness' "case-specific" opinions, which went to the core, pivotal issues at trial, namely whether the accused knew that he was carrying drugs across the border. Those opinions, according to Cronk J.A., were within the knowledge of the trial judge and required no opinion. Furthermore, such opinions would allow usurpation of the role of the trier of fact, which in Singh was a judge sitting without a jury. Sekhon and Singh share the common attribute of an expert giving case specific testimony which directly undermines the defence of no mens rea.
Principles Applied
[22] I find that the evidence of D.C. Robinson passes scrutiny under the four part Mohan test. The evidence of how a marihuana production facility functions, and how the product is priced, is necessary insofar as it will allow me to appreciate the technical facts in the case. While the evidence in the case so far does disclose two marihuana production facilities, there are other aspects of that evidence which require explanation, which is available through an expert. This is more than merely helpful to me as the trial judge; it is relevant to the charges before the court insofar as it advances a fact being advanced in the case, namely the nature of the operations seized at both locations, and the commercial value of each location. In that regard it will provide a more complete picture. There is no exclusionary rule. The list of cases where police officers have given expert testimony is extremely long. I agree with Justice Annis' comment that "The jurisprudence is replete with cases supporting the conclusions that police witnesses may give expert evidence in criminal matters, including the trafficking of drugs." Lastly, D.C. Robinson has attended many specialized courses and seminars regarding the proposed area of opinion evidence. From his professional duties and course of continuing education, he passes the test of being expert in the field.
[23] To be clear, there is a lack of independence on the part of D.C. Robinson as an expert in this trial, because of his close relationship to the police witnesses who have already testified. I am, however, mindful that much of his proposed testimony is not case specific as it has been presented. Rather, it is proposed that he opine about more general issues such as methods of consumption, distribution, possession and trafficking, pricing and packaging of marihuana and marihuana sub-culture. In that regard, his proposed area of expertise is fairly consistent with those portions of the drug experts' testimony in Singh and Sekhon, which were properly admitted. My analysis of the costs and benefits of this evidence leads me to conclude that much of the evidence is not very controversial in the context of this trial, nor pivotal. Much of the evidence is only barely beyond the realm of common sense, but nonetheless something which I as a trial judge lack, namely intuitive knowledge of drug production, trafficking and possession methods, and pricing. Subject to two specific portion of DC Robinson's report, in my view, there is little possibility that this evidence will overwhelm the trial, or usurp my role as the trier of fact.
[24] Where the report at paragraph 10(e) refers to "investigating officers" smelling marihuana, D.C. Robinson is presumably referring to himself, given his testimony before me at this trial. The report is misleading insofar as this paragraph is drafted in the third person and not the first person. The failure to identify in the report observations made personally by the author does not assist me. He will not be allowed to opine concerning any facts which he himself observed prior to the execution of the search warrant. In other words, D.C. Robinson may use as a factual foundation for his opinion his observations gathered during the take down of both production facilities at 434 Birchmount and 7275 Rapiston Road, but nothing gathered before then at either of those locations. Obviously, paragraph 10(e) of the report will also be excluded from the trial.
[25] I am also uncomfortable with D.C. Robinson giving an opinion regarding the exclusivity of the marihuana production facility as outlined in paragraph 22. That paragraph approaches a case specific opinion which might potentially undermine a pivotal aspect of the defence. Furthermore, what was located at 434 Birchmount and 7275 Rapiston appears to be of little controversy in the trial, and therefore there is no need for an expert opinion to explain what physical items were or weren't found at each address. I say this without knowing what the defence is, and mindful of the fact that Mr. Lee is unrepresented. A cost benefit analysis of the opinion in paragraph 22 leads me to exclude it.
[26] I must say in passing that the wisdom of having a police officer give an opinion about the work of his close colleagues is unclear to me. Nor is it clear to me why a police force would offer a drug expert in a case on which he himself has done primary investigative work. York Region is situated adjacent to other similarly large municipalities, each with its own police force, and in a province which has its own provincial police force. I would have thought that the preferred method of having experts testify in drug cases is to use experts from forces outside the one which conducted the principal investigation. There may well be cases where the proposed drug expert testimony is so contentious that the police officer's function within the investigative unit renders the opinion inadmissible because of partiality and/or lack of independence. But this is not that case.
[27] I therefore find that D.C. Robinson may give expert testimony regarding the proposed opinion in the report, without paragraph 10(e) or 22, and generally about areas relevant to the trial within his expertise as outlined at paragraph 1 of this ruling.
Released: November 26, 2014
Signed: "Justice D.S. Rose"
Footnotes
[1] See R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 52; The Goudge Inquiry into Pediatric Pathology in Ontario; The Report of the Kaufman Commission on Proceedings involving Guy Paul Morin.
[3] 2009 ONCA 624
[4] R. v. Abbey, 2009 ONCA 624 at para. 73
[5] R. v. Abbey (supra)
[6] R. v. Docherty, 2010 ONSC 3628
[7] R. v. Docherty (supra) at para. 11
[8] R. v. L.K., 2011 ONSC 2562
[9] R. v. L.K. (supra) at para. 15
[10] R. v. Van Bree, 2011 ONSC 4273, [2011] O.J. No. 3259 (S.C.J.)
[11] R. v. Van Bree (supra) at para. 106
[12] R. v. Natsis, [2014] O.J. No. 4821 (O.C.J.)
[13] Per Carmen Alfano Family Trust (Trustee of) v. Piersanti, 2012 ONCA 297, O'Connor, A.C.J.O. at para. 110 et seq.
[14] R. v. Clouden, 2012 ABCA 175, [2012] A.J. No. 583 (C.A.)
[15] R. v. Sekhon, 2014 SCC 15
[16] R. v. Singh, 2014 ONCA 791
[17] Laskin J.A. dissented
[18] R. v. Singh (supra) at para. 37
[19] R. v. D.D. (supra) at para. 47
[20] R. v. Van Bree (supra) at para. 36
[21] "22. In my opinion, these industrial units were being used for the purpose of production of cannabis marijuana. Rooms within these units were constructed for the sole purpose of cultivating marijuana."