Ontario Court of Justice
DATE: 2024 10 22 COURT FILE No.: Brampton – Central West 998-23-31102307
BETWEEN:
HIS MAJESTY THE KING
— AND —
MEGAN WESTON
Before: Justice A. Neil Singh
Heard on: October 21, 2024 Reasons for Judgment released on: October 22, 2024
Counsel: Rachael Ward, counsel for the Crown Miranda Brar, counsel for the accused Megan Weston
RULING ON MOHAN VOIR DIRE (EXPERT OPINION EVIDENCE)
SINGH J.:
Introduction
[1] On January 20, 2023, Megan Weston was at Toronto Pearson International Airport in Mississauga when she was arrested by members of the Canada Border Services Agency (CBSA) and later by the Royal Canadian Mounted Police (RCMP). She was waiting to board a flight to London’s Heathrow Airport when an investigation into her checked luggage resulted in the authorities locating in excess of 32 kg of cannabis concealed in cardboard game boxes and behind false linings in the baggage.
[2] The Crown has applied to have Corporal Daniel Carter of the RCMP qualified as an expert in the following areas:
(1) Canada as a source country of cannabis; (2) The United Kingdom (UK) as a recipient market of cannabis; and (3) And the pricing and value of cannabis in the UK & Greater Toronto Area (GTA).
[3] The defence opposes the admission of this evidence. A voir dire was held in a blended fashion on the understanding that if I ruled the officer’s opinion evidence inadmissible, I would disabuse my mind with respect to his evidence and afford it no weight in coming to a verdict on this matter.
[4] After deliberating on the issues in this application I have determined that the officer is qualified as an expert to provide evidence in the following discrete area:
(1) The pricing and value of cannabis in the GTA.
[5] The officer is not permitted to opine with respect to:
(1) Canada as a source export country of cannabis; (2) The UK as a recipient market of cannabis; or (3) The pricing and value of cannabis in the UK.
[6] These are my reasons:
EVIDENCE OF CORPORAL DANIEL CARTER
[7] Corporal Carter has been a member of the RCMP since February 2008. He currently oversees a team of four members at his current posting in the RCMP with the Federal Policing, Border Integrity Unit in Niagara-on-the-Lake, ON. His Curriculum Vitae was filed as Exhibit A on the voir dire.
[8] Corporal Carter was not involved in the investigation into Ms. Weston. He received information about the investigation into her from the investigative team. Based on the investigative file, he prepared an expert opinion report in relation to this matter.
[9] Corporal Carter provided evidence with respect to his experience and familiarity with the illicit cannabis trade. He detailed his training which included his initial RCMP cadet training where he was educated on cannabis at the personal use level including how it can be packaged, and what it looks like in various forms. He was also trained in standard field sobriety testing and drug recognition expert evaluations both involving education into the psycho-physiological effects cannabis has on a person and their ability to safely operate motor vehicles or conveyances.
[10] Corporal Carter detailed further formal training he undertook including two Expert Witness Symposiums, a Drug Workshop, the 11th Annual McMaster Pain Program, the Counterpoint Harm Reduction Safe Injection Site Visit, the RCMP Introduction to Cannabis Legislation training, and the Health Canada Canadian Drugs and Substances Strategy Program.
[11] With respect to knowledge that he obtained through these programs, Corporal Carter advised that he received education related to general values of cannabis in the GTA, and how prices may be affected by geography as well as the amount of cannabis purchased. He fairly conceded that the majority of his experience in Ontario, however, was at the distributor, trafficker, and exporter level.
[12] In terms of investigative experience, Corporal Carter advised that he has been involved in 400 to 450 plus investigations involving cannabis that ranged from simple possession to illicit cannabis cultivation operations. From 2018 – 2020, he was seconded to a cross-border investigative team led by Homeland Security in the United States (US). He participated in investigations related to weaknesses in the Canada-US border that were being exploited by drug traffickers to export Canadian cannabis to the US.
[13] As a result of his experience in this area, he learned that Canada has been identified as a source country for illicit cannabis. A source country is one whose illicit cannabis production exceeds what the domestic market can (or chooses to) consume and therefore has excess product available for exportation. Canadian cannabis is in high demand and sought after due to its reputation for being able to produce high-quality cannabis.
[14] Corporal Carter has also been the lead investigator, affiant, exhibits officer in various cannabis investigations. In Ontario, he is a handler of Confidential Human Sources where the main commodity being exchanged is cannabis. He is also a member of the tactical support group that is called upon to assist in the execution of search warrants. In that regard, he has been a searching officer involved in the searching, documentation, and dismantling of cannabis cultivation operations. In one instance, this involved dismantling an operation that had thousands of plants being cultivated along with approximately 5000 lbs. of illicit cannabis packaged for distribution.
[15] Corporal Carter has been involved in Part VI Intercepted Communications investigations related to the illicit cannabis trade as well. He has reviewed intercepted communications, Substantive Event Summaries, and conducted interviews in relation to cannabis investigations. From this, he has learned about the illicit cannabis market, including the pricing of cannabis.
[16] He explained his role as an expert as assisting the court in better understanding the unique factors that may affect the trade in cannabis. It was his role to assist the Court in understanding the factors unique to cannabis and to utilize his experience and knowledge to assist the Court in being aware of some of the unique nuances of the illicit cannabis trade. As the officer testified, it made no difference to him who called him as a witness, defence or Crown. It would have no impact on his opinion.
[17] With respect to the United Kingdom, the officer testified that he has been involved in investigations where Canadian cannabis is exported to the European countries, including the UK. In terms of pricing, the officer did some research and was able to determine UK price points by reviewing materials put forward by different pharmaceutical and medical groups in the UK, as well as a website that provided user reviews of cannabis pricing where cannabis consumers rate the cannabis they purchased and provided a snapshot of the price points they were able to obtain cannabis at.
[18] Corporal Carter was cross-examined on his qualifications. With respect to the pricing of cannabis, he conceded that the materials from pharmaceutical companies and clinics could form a part their marketing materials. Although he asserted that the material he utilized from a pharmaceutical company was a document that had sourcing and footnotes in it, no further information was provided regarding the pharmaceutical company or companies they were from, and whether the price points were sourced in any verifiable way.
[19] With respect to the user-based website, the officer stated he relied on a larger data set from the users to satisfy himself that he was able to determine an accurate range for cannabis pricing. That being said, there was no information as to what he meant by larger data set, or what methodology, if any he used to reduce the data into the range that he ultimately landed on. Whereas Corporal Carter had firsthand knowledge and a wealth of sources to inform his understanding of the illicit cannabis market in Canada, he did not have anything similar with respect to the UK market.
[20] During cross-examination, he confirmed there are other countries that produce cannabis and are also source countries. He confirmed he has not received any formalized cannabis training regarding exportation to other countries. He confirmed he never had any training about the UK cannabis market.
[21] He was cross-examined extensively in relation to the Government of Canada’s Legislative Review of the Cannabis Act that was entered into evidence as Exhibit #B on the voir dire. He agreed that there has been a displacement of the illicit cannabis market from the consumer side of things given the legalization of cannabis. He asserted however, that based on his experience, the illicit market from the producer, trafficker, distributor, and exporter side of things has remained robust.
POSITIONS OF THE PARTIES
[22] Ms. Ward, on behalf of the Prosecution Service, seeks to have Corporal Carter qualified to provide expert opinion evidence in the three narrow areas as detailed above. In relation to the pricing in Canada, Ms. Ward submitted she would only be seeking to rely on the officer’s opinion as to the lowest value of the cannabis at the kilogram level. She ultimately submits that the four Mohan criteria are satisfied.
[23] She argues that the evidence is relevant to the issue of knowledge. In particular, the value of the cannabis would support an inference that, due to the value of the cannabis at issue, it is an available inference that an item of such a high value would not be entrusted to someone not aware of the contents in Ms. Weston’s suitcases.
[24] Ms. Ward submits that issues such as where illicit cannabis is exported to, and the range of purchase points, are beyond the scope of the knowledge of the courts. It is only gained through specialized field work, experience and research.
[25] There is no other exclusionary rule prohibiting the receipt of the evidence.
[26] The evidence is being proffered by a properly qualified expert. She notes the Court of Appeal in Abbey, stating that scientific validity is not a condition precedent to the admissibility of expert opinion evidence. In fact, most expert evidence that is heard in our courts cannot be scientifically validated.
[27] Corporal Carter is someone who has shown to have acquired specialized knowledge in the proposed areas of evidence. He has a significant amount of experience in the field and in relation to cannabis investigations. He understands his role to be an impartial aid to the court.
[28] On behalf of the Respondent, Ms. Brar argues that the evidence should not be admitted. She submits that the evidence is particularly dangerous where the only issue is the mens rea. She agreed that while Corporal Carter has an impressive background and has relevant experience with respect to exportation to the US, he has none with respect to the UK. He relied on Google searches to inform himself about the UK market. She submitted that if there is a qualification of the officer as an expert, it should only be limited to the quantification of cannabis in the GTA at the kilogram level. She submits that the evidence of Canada as a source country and the UK pricing is neither relevant nor necessary.
LAW AND ANALYSIS
[29] Expert evidence is presumptively inadmissible. There are four threshold requirements to the admission of expert evidence:
(1) Relevance; (2) Necessity in assisting the trier of fact; (3) The absence of an exclusionary rule; and (4) A properly qualified expert
See: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para 1; R. v. Mohan, [1994] 2 S.C.R. 9 at paras 17-21
[30] The second stage requires the judge to undertake a cost-benefit analysis. The judge must balance the potential risks and benefits of admitting the evidence: R. v. Abbey, 2009 ONCA 624; White Burgess Langille Inman v Abbott and Haliburton Co, para 24.
(1) Is the Proposed Expert Evidence Relevant to a Fact in Issue
[31] The Crown submits that the evidence is relevant to the issue of knowledge. Knowledge of the cannabis has not been conceded and is, indeed contested. The Prosecution Service points to the authority of a number of cases that they submit demonstrate the relevance of this evidence.
[32] In R. v. Bains, 2015 ONCA 677 at paragraph 157, the Court of Appeal wrote:
Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself… It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container. The inferences may be available from the objective improbability that such a valuable quantity of drugs would be entrusted to anyone who did not know the nature of the contents in the means of transport.
[33] Ms. Weston was not found in personal possession of the cannabis at issue. The cannabis was concealed within the luggage behind false linings and in various board game boxes in the luggage. In that regard, the Crown’s case regarding her purported possession is circumstantial. Evidence as to the value of the cannabis is therefore relevant to the issue of knowledge.
[34] That being said, Canada as a source country and the UK as a recipient country do not appear to be relevant to the issue of knowledge. The Crown in its submissions did not connect these areas to the issue of knowledge, which is the only issue they submitted as relevant.
[35] I find that whether Canada is known as a source country and the UK as a recipient country matters not. In this case, it appears abundantly clear that cannabis in Ms. Weston’s checked luggage was being transported (at least) from Canada to the UK. Put another way, if Canada were not known as a source country, or the UK a recipient one, would it have an appreciable effect on the analysis of knowledge in this case? Surely in the circumstances of this case, the answer is no.
[36] As such, opinion evidence of Canada as a source country and the UK as a recipient country is inadmissible. The remainder of my analysis will focus solely on the valuation of cannabis.
(2) Is the Proposed Expert Evidence Necessary to Assist the Trier of Fact
[37] Expert evidence, to be necessary, must likely be outside the experience and knowledge of a judge or jury and must be assessed in light of its potential to distort the fact-finding process. Necessity should not be judged by too strict a standard. However, it is not enough to simply be helpful to the trier of fact. If, on the proven facts, a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary: See R. v. Mohan, [1994] 2 S.C.R. 9
[38] The value of cannabis is beyond the experience and knowledge of triers of fact. In that regard, as it is logically related to a relevant issue at trial, the evidence meets the standard of necessity.
(3) Is there an Absence of an Exclusionary Rule?
[39] The Crown submitted that there was no exclusionary rule and that it was her understanding that the defence was conceding this. The defence did not outright say this but made no submissions on there being an exclusionary rule. Regardless, I have found that there is no exclusionary rule barring the admission of the officer’s evidence.
(4) Is the Proposed Expert Properly Qualified
[40] In R. v. Pham, 2013 ONSC 4903, Justice Durno provided a list of factors to consider in an evaluation of whether a proposed witness is properly qualified. They are:
(1) The manner in which the witness acquired the special skill and knowledge in which the application is based. (2) The witness’ formal education (degrees and certificates). (3) The witness’ professional qualifications. (4) The witness’ membership and participation in professional associations related to his or her proposed evidence. (5) Whether the witness has attended additional courses or seminars related to the areas of evidence in dispute. (6) The witness’ experience in the proposed areas. (7) Whether the witness has taught or written in the proposed areas. (8) Whether, after achieving a level of expertise, the witness has kept up with the literature in the field. (9) Whether the witness has been previously qualified to give evidence in the proposed area(s); including the number of times and whether the previous evidence was contested. (10) Whether the witness has not been qualified to give evidence in the proposed area(s) and, if so, the reason why; and (11) Whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence.
[41] In this case I make the following observations:
(1) Corporal Carter acquired his special skill and knowledge through formal education and his vast investigative experiences in relation to the Canadian cannabis market and valuations in the GTA. (2) The officer received significant formal training that includes training in the illicit Canadian cannabis market, including valuations and price points of cannabis in the GTA. (3) The witness has significant in-the-field experience in relation to cannabis investigations, including the valuation of cannabis in the GTA. (4) The witness has not taught in the proposed areas. (5) The witness maintains his knowledge of the areas by reviewing law enforcement and drug-related websites, source debriefings regarding the drug trade in Ontario, drug trend bulletins, case law related to drug trends within Canada and north America; speaking to investigators across the country to keep up to date on drug prices and trends; materials that educate on what drives demand, pricing, packaging methods, etc. He also reviews CBSA bulletins regarding drug seizures within Canada and throughout the world; he regularly reads books and research papers covering the drug trade. (6) The witness has not been qualified in the proposed area before; he has been qualified in relation to cannabis, but according to his CV, not in relation to pricing, but rather on how much cannabis users typically consume and whether cannabis was possessed for personal use. He has not been denied qualification in this area before to my knowledge. (7) It is trite law that this area has been repeatedly identified by our courts as a proper area for expert opinion evidence. This evidence is almost exclusively provided by experienced officers with both in-field experience and on-the-job training.
[42] In relation to the UK, Corporal Carter did not acquire any special skill and knowledge regarding that market. He did searches on Google that, based on the evidentiary record before the Court are entirely unverifiable and impossible for the defence to challenge. The reports from the pharmaceutical companies cannot be relied upon as unbiased. As the officer fairly conceded, these may form a part of their marketing strategy; they are for-profit businesses. The cannabis price website is also completely unverifiable and impossible for the defence to challenge. Further, the lack of evidence as to how the officer arrived at the price points he did, and the methodology he used in getting there, is of concern to the Court.
[43] Consequently, I find that the officer is a properly qualified expert with respect to the pricing and valuation of cannabis in the illicit cannabis market in the GTA. He is not, however, a properly qualified expert vis-à-vis pricing and valuation in the UK.
(5) Gatekeeping Function – Do the Costs of the Proposed Evidence Outweigh the Benefits?
Here the trial judge must undertake a cost-benefit analysis in order to determine whether the balance in favour of the admission of the evidence: See R. v. Abbey at para 79.
[44] In other words, the trial judge must decide whether the expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.
[45] Evidence may be excluded at this stage if:
(1) The evidence would tend to usurp the duty of the trier of fact; (2) The prejudicial effect outweighs the probative value; (3) The time required outweighs its probative value; (4) The cost required outweighs the probative value; and (5) The influence of the evidence outweighs the evidence’s reliability.
[46] This is a judge alone trial. I, as the trier-of-fact will not be overwhelmed by the very narrow scope of the evidence that has met the threshold for admissibility to this point. The value of the drug may support the inference that the Prosecution Service seeks to have the Court rely upon, but I am mindful of the law surrounding circumstantial evidence as espoused in R. v. Villaroman, 2016 SCC 33. Ultimately, it may not be the only available inference. At the end of the day, I will have to be satisfied that Ms. Weston’s guilt is the only available inference on the evidentiary record. The value of the drug is but one factor to consider. This Court will not be overwhelmed by it.
[47] The probative effect outweighs the prejudicial effect. This is a judge-alone trial, the risk of prejudice is greatly reduced in such a situation. The evidence speaks solely to the estimated valuation of the cannabis, and nothing more. Similarly, I find that the influence of the evidence will not outweigh the evidence’s reliability. The evidence will be considered along with the entire evidentiary record to determine whether the Crown has met its very high burden of proof of beyond a reasonable doubt. Again, the presumption of innocence that remains with Ms. Weston cannot be reversed unless the Crown satisfies me that her guilt is the only available inference on the evidentiary record at the end of the trial.
[48] The time and cost required for the evidence is a non-factor, the Court having already received the evidence in a blended fashion, conditional on my ruling on the admissibility of the evidence.
CONCLUSION
[49] Corporal Carter is qualified as an expert to provide opinion evidence in relation to the valuation and pricing of cannabis in the GTA. His evidence in relation to Canada as a source country, the UK as a recipient country, and valuation and pricing in the UK is inadmissible; it will be disregarded by this Court and afforded no weight in its ultimate analysis on the trial proper.
Released: October 22, 2024 Signed: Justice A. Neil Singh