Court File and Parties

Ontario Court of Justice

Date: 2019-05-14

Court File No.: Kitchener Info # 181198

Between:

Her Majesty the Queen

— and —

Joseph Dupe

Before: Justice Scott Latimer

Heard on: May 6, 2019

Reasons for Decision released on: May 14, 2019

Counsel

Kathleen Nolan ........................................................................................ counsel for the Crown

Brennan Smart ........................................................................................ counsel for Mr. Dupe

Decision

LATIMER J.:

[1] Introduction

[1] This ruling concerns a Crown attempt to qualify a peace officer as an expert witness to provide an opinion that certain factual characteristics are indicative of cocaine trafficking. The defence resisted on the basis that my gatekeeper function requires exclusion of the proffered testimony, because the fourth Mohan criteria – a properly qualified expert – had not been made out on the existing evidentiary record. Their particular concern is the officer's understanding of the role of an expert witness, which is fundamentally different from the great majority of tasks commonly performed by a police officer.

[2] At the close of submissions, I provided my bottom line conclusion that the Crown had not established a basis for admissibility, and indicated that I would provide formal reasons in the near future. Subsequently, the parties agreed to resolve Mr. Dupe's charge to simple possession of cocaine. On consent, his original plea was struck and he was re-arraigned, pleading guilty to the included offence. In the circumstances, fulsome reasons for decision are not required. What follows are brief reasons for my conclusion not to qualify the officer as an expert witness.

I. THE VOIR DIRE EVIDENCE

[3] Constable Elisabeth Cain has been a police officer for ten years. For the past two years, she has worked in the drug unit of Waterloo Regional Police Service. She has performed numerous duties in this capacity, including being involved in wiretap projects and search warrant executions, both as a searching officer and an exhibit officer. She has also been an affiant on numerous search warrants and production orders, and has acted, to a limited degree, as an undercover officer, although she was careful to advise she has not purchased cocaine in a covert capacity. I accept that her past experience has provided her with knowledge with regard to her proffered areas of expertise, such as the relevance of cocaine pricing and packaging.

[4] Constable Cain explained in her testimony that she has also participated in continuing police education, including in the particular area of drug investigations. With regard to training related to providing an expert opinion in court, she testified that it was a one-hour component of a two week course she took in July 2017. Her curriculum vitae was made Exhibit A on this voir dire. While I have not exhaustively reviewed it in these reasons, I am fully aware of its contents, having reviewed it several times.

[5] An important exchange, for this ruling, occurred in cross-examination. Mr. Smart asked Constable Cain what she understood her obligations were when coming to court to provide opinion evidence. She responded, "It was put forward to me by the Crown what they were expecting an expert opinion on". Mr. Smart asked what her instructions from the Crown were, and "what her understanding was about her role in this case". Constable Cain responded, "To offer an expert [opinion] in cocaine, method of use, quantities and pricing, drug indicia, packaging and currency". She readily agreed with defence counsel that her role in this trial was to "provide an opinion for the Crown".

[6] The Crown did not re-exam Constable Cain on her understanding of the impartial role of an expert in a criminal proceeding, nor were any questions asked in this area during direct examination. In submissions, Ms. Nolan stated that, "although I think the general concept is clear that we have to explore that the thresholds are met and that the expert is properly qualified and not partial, I don't think there is anything in law, at least that I am aware of, that says that absent express testimony and that express phrase, that 'I know my duty is to prepare an impartial report', that is fatal to the Crown in terms of exploring the threshold and making the determination [the court] has to make".

[7] Mr. Smart strongly disagreed with this submission, noting admonitions from recent appellate jurisprudence with regard to a trial judge's gatekeeper function in this particular area. His position was that Constable Cain's limited drug experience and flawed testimony render her, on this particular evidentiary record, unsuitable for qualification as an expert witness.

II. LEGAL ANALYSIS

[8] Of the four Mohan criteria, the first three [1] are readily established. What is at issue is the fourth – a properly qualified expert. As noted by Mr. Smart, this area has been the subject of recent legal attention. In 2015, the Supreme Court of Canada held that concerns about a proposed expert witness's partiality are relevant at the admissibility stage of the inquiry: see White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 45. Seven years before that, in 2008, one of the recommendations in the Inquiry into Pediatric Forensic Pathology in Ontario: Report was that experts should be required to expressly advise that they understand their overriding duty is to the court – not a party to the litigation – before being qualified to provide opinion evidence at trial: see Inquiry into Pediatric Forensic Pathology in Ontario: Report (Goudge Report) (Toronto: Ministry of the Attorney General, 2008), Recommendation 136, p. 505. A unanimous Supreme Court cited the Goudge Report in its reasons in White Burgess.

[9] Contrary to the prosecutor's submissions in this case, the law is now clear that an expert's awareness of this duty is a threshold question during the admissibility inquiry. In White Burgess, the Court stated:

I have already described the duty owed by an expert witness to the court: the expert must be fair, objective and non-partisan. As I see it, the appropriate threshold for admissibility flows from this duty…

… While I would not go so far as to hold that the expert's independence and impartiality should be presumed absent challenge, my view is that absence such challenge, the expert's attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met.

Once the expert attests or testified on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable and/or unwilling to comply with that duty… [emphasis added.] [2]

[10] I understand the inquiry on this point to operate in two stages: first, there should be admissible evidence on the voir dire that the proposed witness recognizes that their primary duty is to the court, and an express statement by them that they are willing to accept this duty during their testimony. Absent any particular challenge to such a statement, this aspect of admissibility will then be satisfied. This is where the Crown's present application runs aground. I have no admissible evidence – either direct or by inference – that Constable Cain understands this primary duty. In fairness to her, the Crown did not ask any questions in this area. When the topic was broached in cross-examination, she testified that her role was to "provide an opinion for the Crown". While it very well may be that she does understand the proper role of an expert witness, in the present circumstances (a relatively new drug officer from the same investigative unit that arrested the defendant), I am not willing to speculate on what her particular training and understanding in this area is. I leave it to future cases to explore Constable Cain's particular understanding and suitability as an expert witness in this particular area.

III. DISPOSITION

[11] The application to present opinion evidence is dismissed.

Released: May 14, 2019

Justice Scott Latimer

Footnotes

[1] Necessity, relevance, and the absence of an operative exclusionary rule: R. v. Mohan, [1994] 2 S.C.R. 9.

[2] White Burgess, supra at paras. 46-8. See also R. v. Natsis, 2018 ONCA 425, 140 O.R. (3d) 721, at para. 11.