Ontario Court of Justice

Date: February 27, 2017

Court File No.: Newmarket 16-00896

Between:

Her Majesty the Queen

— AND —

Duy Andy Nguyen

Before: Justice Joseph F. Kenkel

Counsel:

• Mr. A. Nadi — counsel for the Crown
• Ms. J. Hue — counsel for the defendant

Heard and Delivered: February 27, 2017

RULING – OPINION EVIDENCE

KENKEL J.:

Introduction

[1] Mr. Nguyen is charged with possession of Ketamine for the purpose of trafficking contrary to s.5(2) of the Controlled Drugs and Substances Act (CDSA) SC 1996 c19. The fact of possession and nature of the substance are admitted. The sole issue is whether the evidence proves the trafficking purpose alleged. The Crown seeks to qualify Constable Ryan Lidstone to give opinion evidence with regard to the methodology of drug trafficking, and the subculture of illegal ketamine use including pricing; distribution and street use. The defence submits that the Crown has failed to show the expert is properly qualified.

Opinion Evidence – The White Burgess Test

[2] Opinion evidence is presumptively inadmissible. The test for the admissibility of opinion or "expert" evidence begins with consideration of the four Mohan criteria:

• relevance
• necessity
• the evidence is not contrary to an exclusionary rule
• a properly qualified expert

See: R v Mohan, [1994] SCJ No 36. Both parties agree that the proposed evidence is relevant, necessary and that it does not offend any exclusionary rule. They disagree as to whether the Crown has proved the fourth criteria – that the witness is properly qualified to give the proposed opinion.

[3] On that point the Crown must prove that the witness has acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify – Mohan at para 27. Proof that a proposed expert witness is properly qualified includes the requirement that the expert be independent, objective and impartial – White Burgess 2015 SCC 23 at para 48, Mouvement laïque québécois v. Saguenay 2015 SCC 16 para.106.

[4] If the Crown proves the proposed evidence meets the Mohan criteria, the court must then consider whether the probative value of the evidence exceeds any prejudicial effect – is the evidence worth what it costs? – White Burgess at para 2, R v Abbey 2009 ONCA 624. Note that on this admissibility voir dire the court decides only whether the evidence is worthy of being heard, not the ultimate question as to whether the evidence will be accepted or given weight – Abbey at para.89.

Submissions of Counsel

[5] The Crown submits that through experience and training the officer has gained sufficient experience with respect to the illicit trafficking of Ketamine in this area to properly qualify him to give opinion evidence in that regard. The defence submits that the officer has limited experience with this drug and that he relies on anecdotal evidence provided by others. The officer has not conducted independent research on this topic but incorporates formal research information in his report that was provided to him in training. The defence submits that the witness should not be qualified to give opinion evidence, or in the alternative the range of his proposed evidence should be narrowed.

Analysis

[6] The evidence relevant to the officer's qualification to give the proposed opinion evidence includes:

• The officer's general police experience including four years with the Drugs and Vice Unit (as it was known then)
• Experience with all levels of drug investigation from street level transactions to major projects and importing cases as listed in his report and CV
• Personal experience with approximately 30 drug investigations involving Ketamine
• Conversations with other officers about typical use and current street prices for Ketamine
• Discussions about dosage and typical use with approximately 15 Ketamine users
• Training and education about drug trafficking including Ketamine use and trafficking
• Training and education to be a drug expert witness
• Personal research on the internet about Ketamine use
• The officer's listing in his report of the indicia of trafficking that are not present
• The fact that this officer is not involved in this investigation nor is he a member of the unit that conducted this investigation
• The officer's signed acknowledgement in his report that he is aware that an expert witness must be fair, objective and non-partisan and must stay within the defined areas of expertise

[7] This officer has testified as a drug expert in the past, including in a case involving Ketamine where his expertise was not contested – R v Jardenico 2016 ONCJ No 3575.

[8] Police officers have been qualified to give opinion evidence with respect to pricing, packaging and usage – R v Pham 2013 ONSC 4903 at para 29. The fact that the officer's experience includes anecdotal sources including reports from drug users does not preclude the admissibility of that evidence – R v Dominic 2016 ABCA 114 at para 22-23. The fact that this officer is not involved in this investigation and otherwise understands the role of an expert witness and the limits on that role is sufficient here to answer concerns about objectivity.

[9] I find the officer's training and experience provides a sufficient foundation for the proposed opinion with respect to Ketamine trafficking, prices and usage. I agree with the defence that the toxicology information regarding lethal dosing goes beyond the knowledge of this witness and the Crown has clarified they are not relying upon that portion of the research study table the witness included in his report.

Conclusion

[10] I find the Crown has proved that the proposed opinion evidence is relevant and necessary and not contrary to any other exclusionary rule. The witness is properly qualified to give opinion evidence on the focused topics identified. The probative value of that proposed evidence exceeds any prejudice.

Delivered February 27, 2017:

Justice Joseph F. Kenkel