WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

Court File No.: Toronto Region, Old City Hall Court YW14156701

Between:

Her Majesty the Queen

— and —

T.A.

Before: Justice Kathleen J. Caldwell

Heard: November 3rd, 2015

Reasons for Judgment released: November 6th, 2015

Counsel:

• Mr. Dean Sgouromitis — Counsel for the Crown
• Mr. David Maubach — Counsel for the defendant

Judgment

K.J. Caldwell J.:

[1] The Crown wishes to call Detective Constable Nelson Barreira as an expert witness on covert, coded and street language in order to assist in understanding two wiretaps that form the basis of the Crown's case against Mr. A.. Mr. A. is charged with conspiracy to commit robbery.

Finding

[2] I find that D/C Barreira is qualified to give such expert evidence.

The Issues

[3] Mr. Maubach argues that the officer is not a properly qualified expert as required by the fourth branch of the R v Mohan test. More specifically, he argues that the officer cannot give impartial evidence and, furthermore, that he does not have the necessary qualifications to testify as an expert in the proposed area.

The Law

Bias and Impartiality

[4] The most recent SCC statement of law on expert evidence is the unanimous decision of White Burgess Langille Inman v Abbott and Haliburton authored by Justice Cromwell. The decision falls within the civil realm but impacts equally on the criminal realm as highlighted by the intervener status of the Ontario Criminal Lawyers' Association and the Attorney General of Canada.

[5] Justice Cromwell reiterates the four Mohan criteria: (1) relevance, (2) necessity, (3) no applicable exclusionary rule, and (4) the expert must be properly qualified. Even if all of these criteria are satisfied, the judge possesses a residual discretion to exclude evidence if its probative value is outweighed by its prejudicial effect. A cost-benefit analysis is done to make such a determination. The Ontario Court of Appeal in R v Abbey placed further emphasis on the latter gate-keeping function, dividing the process into two steps. The first involved an assessment of the four Mohan criteria outlined above. The second step involved the overall cost-benefit, gatekeeper analysis. Justice Cromwell explicitly endorsed the Abbey process.

[6] Expert independence, impartiality and lack of bias were the primary focus of the decision, however. The Court first questioned whether such concerns need to be addressed at the admissibility stage or if they are only relevant to the weight given to the expert evidence. If these concerns affect admissibility, then are they part of the threshold requirement for admissibility or do they fall under the judicial discretion to exclude as per Abbey or both? Finally, what is the nature of bias that justifies exclusion?

[7] The Court held that the issue of bias must be dealt with at the threshold stage and was not an issue that simply affected the weight to be given to the evidence.

[8] Further, such concerns are part of the fourth branch of the admissibility test, namely, whether the expert is properly qualified. The expert has an obligation to the Court to be impartial, independent, and lacking in bias. A biased expert, one who is lacking in these qualities, is not a properly qualified expert as such an expert cannot satisfy its duty to the Court to be impartial.

[9] Concerns regarding independence and impartiality also, however, come into play in the second step of the Abbey framework, the gatekeeping/residual discretion to exclude stage. Justice Cromwell held that the four threshold requirements of Mohan, including the absence of bias aspect of the expert's qualifications, are "part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence".

[10] The decision placed considerable focus on the nature of the bias that would trigger exclusion. Justice Cromwell acknowledged that virtually every expert is paid by the party calling the expert. Payment alone is not sufficient to ground a successful challenge for bias; something more is required.

[11] Apparent bias is not relevant nor is it relevant if a reasonable person would view the expert as biased. The test is subjective – is there a relationship or interest that causes the expert to be unable or unwilling to fulfill his or her duty to the court to be independent, impartial and unbiased?

[12] Examples of such lack of partiality in past cases are: expert was the party's lawyer in another proceeding, expert was the father of one of the lawyers, expert was a party to the litigation.

[13] Finally, the test is not onerous. Once the proposed expert has testified that he is capable of executing his duties impartially, it falls to the opposing party to show that there is a "realistic concern" that the expert cannot comply with his duty to be unbiased and independent.

Qualifications Apart from the Bias Issue

[14] Justice Watt describes the necessary expert qualifications as follows:

The party who tenders the witness as an expert is required to demonstrate that the witness has acquired a special knowledge of a particular topic by formal study, practical experience, or both, which extends beyond that of the trier of fact. The competence of the witness to give expert evidence, or to be qualified as an expert, does not depend on how the skill was acquired, only that it has been gained.

[15] Justice Charron has stated, "Opinion evidence can only be of assistance to the extent that the witness has acquired special knowledge over the subject matter that the average trier of fact does not already have. If the witness's "special" or "peculiar" knowledge on a subject matter is minimal, he or she should not be qualified as an expert with respect to that subject".

[16] Finally, deficiencies in an expert's opinion go to weight, not admissibility.

Application to D/C Barreira's Proposed Evidence

[17] I find that D/C Barreira's evidence should be admitted.

[18] First, there is no dispute that his evidence meets the first three prongs of the Mohan inquiry. It is relevant as it is directed to the primary issue in this trial. It is necessary in that the wires in question are very difficult, if not impossible, to understand without assistance. Finally, there is no exclusionary rule barring admission.

[19] I turn then to the fourth branch of the test, the officer's qualifications. I will deal first with his qualifications in the context of bias and, secondly, with his qualifications in terms of knowledge.

[20] The obvious question is whether the officer is capable of satisfying his duty to the Court to remain independent and impartial given that he is a police officer and clearly the police are heavily involved in the prosecution. Applying the analysis as outlined by Justice Cromwell in White Burgess, I find that the officer is so qualified. I draw an analogy to expert payment. Simply because an expert is paid by one of the parties does not result in exclusion; similarly, the mere fact that the witness is a police officer, without more, does not result in exclusion. To exclude for that reason alone would be to apply an objective test.

[21] The officer has testified that he understands his duty to the Court and he is prepared to execute that duty in a fair, unbiased, and impartial manner. In light of such testimony, the burden shifts to the defense to show a "realistic concern" that the officer cannot perform his duty to the Court. I find that such a realistic concern has not been established. The officer listened to wires as the project was ongoing and works in the same building as the officers directly involved in the investigation. He testified, however, that he did not proffer an opinion before charges were laid, he was not involved in the laying of charges, and he did not discuss his analysis of the wires with other officers involved in the project. I find that there is no realistic concern that this particular officer will not be able to execute his duty fairly and impartially.

[22] The officer was aware of the nature of Mr. A.'s charge before he proffered his expert opinion. Mr. Maubach contended that this fact would have biased the officer, affecting his interpretation of the wires. If this were the case, however, virtually all experts would be disqualified on the basis of bias, as it is only logical to assume that most if not all experts are aware of the nature of and issues in the case in which they are called to testify.

[23] Further, I find that the officer is qualified in the sense that he possesses special knowledge acquired predominantly through experience. He has worked as a police officer in Toronto for thirteen years in various capacities – primary response, major crime, field intelligence and, for the past three years, with the Guns and Gangs Task Force. Over the past eight years, since leaving primary response, he has spoken with numerous accused persons, witnesses and confidential sources. Those individuals possessed knowledge of street, covert and coded language and, to varying degrees, imparted knowledge to the officer over time. Frankly, it simply makes sense that the officer would have come to learn street terminology through working for Guns and Gangs, Intelligence and Major Crime particularly in 12 Division which, according to the officer, has a high prevalence of street gangs.

[24] Further, the officer has reviewed numerous YouTube videos, plus Instagram and Facebook postings involving such language. He has spoken with numerous other officers to build upon his knowledge.

[25] I find that the officer possesses the requisite knowledge to provide expert testimony.

[26] Further, I find that the Crown has satisfied the second step of the test as outlined in Abbey and as approved in White Burgess et. al. Given the high degree of relevance and necessity, I find that the cost-benefit analysis favours admission.

[27] For all of these reasons, I qualify the officer as an expert in the area of street, covert and coded language. Any residual issues regarding the extent of his knowledge go to weight.

Released: November 6th, 2015

Signed: K.J. Caldwell