ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-G30392
DATE: 2012/10/30
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
JAMES CULLEN SARSFIELD
Defendant
Roderick W. A. Sonley, and Margaret Jarmoc, for the Crown
Jeffrey Langevin, for the Defendant
HEARD: October 25, 2012
REASONS FOR decision on ADMISSIBILITY OF EXPERT OPINION EVIDENCE
Kane J.
ADMISSIBILITY OF EXPERT OPINION EVIDENCE
[ 1 ] A voir dire was held on October 25, 2012. The Crown seeks an order that Corporal Gray of the RCMP be qualified as an expert to provide the following opinion evidence:
The witness’ opinion as to what level of cocaine trafficking do the items seized by police on November 5, 2009 displayed in photographs in exhibit 3 at pages 41, 42, 43, 44, 45, 46, 65, 66, 68, 69, 71, and 72 reflect? What are the grounds for that opinion?
The witness’ opinion as to what level of cannabis marijuana trafficking do the items seized by police on November 5, 2009 displayed in a photograph at page 39 of exhibit 3 reflect? What are the witness’ grounds for that opinion?
The witness’ opinion whether the level of concentrate of the cocaine bricks or kilos, including the test results thereof together with the packaging thereof, as reflected in the photographs at pages 53 to 62 of exhibit 3, indicate such bricks were in their original imported pre-cut state or whether such product had already been cut or diluted with a cutting agent? What are the grounds for that opinion?
The witnesses’ opinion as to whether the guns, teasers other weapons walkie-talkies, and bullet proof vest in the photographs at pages 29, 36, 84, 94, 99 100 and 101 of exhibit 3 have any role in the business of drug trafficking? What is that role? What are the grounds for that opinion?
The witness’ opinion as to whether there are recognized code words or jargon used in the drug trafficking world common to and indicative of what drug is being referred to? What are the grounds for that opinion? (hereinafter referred to as the Issue(s))
SECTION 657.3(3)
[ 2 ] The report of the expert does not identify the above as the five opinions he is to provide expert evidence about nor state the grounds for those opinions as required under this section. The defence did not request an adjournment to conduct the cross-examination or provide information in compliance with this section.
[ 3 ] The drugs in the indictment against the defendant are cocaine and cannabis marijuana.
[ 4 ] The parties filed an agreed statement of admissions at the commencement of this trial which includes the following:
- That the quantity of the controlled substances seized is sufficient to establish possession for the purpose of trafficking is admitted.
DEFENCE POSITION
[ 5 ] The defence objects to this witness being recognized as an expert to provide opinion evidence on the above questions on the basis that:
(i) The witness as a police officer is biased towards the prosecution and against the defence and lacks objectivity in the areas it is proposed he testify about.
(ii) The subject of the opinions for which he is presented do not meet the relevancy or necessity criteria under R. v. Mohan , 1994 80 (SCC) , [1994] 2 S.C.R. 9.
R. v. Mohan
[ 6 ] The Supreme Court in R. v. Mohan , supra , outlined four criteria for the admissibility of opinion evidence by an expert. Those criteria are that:
(1) the evidence is relevant to some issue in the case;
(2) the evidence is necessary to assist the trier of fact;
(3) the evidence does not contravene an exclusionary rule; and
(4) the witness is a properly qualified expert.
RELEVANCE
[ 7 ] As to relevance to an issue, the Supreme Court in Mohan stated:
18 Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. … Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is whether its value is worth what it costs. … Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability . … (Emphasis added)
19 There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. …
NECESSITY
[ 8 ] As to necessity, the Supreme Court in Mohan stated:
21 In R. v. Abbey , supra , Dickson J., as he then was, at p. 42:
… An expert’s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. “An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary.”…
22 This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word “helpful” is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information “which is likely to be outside the experience and knowledge of a judge or jury”: as quoted by Dickson J. in R. v. Abbey , supra . As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher (Village of) v. Smith , 1931 1 (SCC) , [1931] S.C.R. 672, at p. 684, this Court, quoting from Beven on Negligence (4 th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible, “[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge”. …
[ 9 ] The following is an excerpt on necessity from Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 3rd ed. (Markham, Ont.: LexisNexis Canada, 2009).
§12.57 In R. v. Mohan , the Supreme Court held that opinion evidence must be necessary in the sense that it provides information “which is likely to be outside the experience or knowledge of a judge or jury”. … However, necessity should not applied too strictly. In R. v. Abbey , Dickson J. (as he then was) stated that if on the proven facts a judge or jury can form their own conclusions without the assistance of a person with special knowledge or expertise, the opinion of the expert is unnecessary.
§12.60 In R. v. D. (D.) , 2000 SCC 43 () , [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44 (S.C.C), Justice Major, writing for the majority of the seven-judge panel, held that opinion evidence that is merely helpful or might reasonably assist the jury did not satisfy the necessity threshold. His Honour held that expert evidence is necessary when the fact-finder is apt to come to a wrong conclusion without expert assistance or where important information is unavailable without the assistance of experts. In R. v. J. (J.-L) , the full Court affirmed that the necessity criterion and the proffered expert evidence must be more than merely helpful ─ it must be necessary in the sense that the subject matter or information is likely beyond the experience or knowledge of the fact-finder and that the opinion evidence is necessary to enable the fact-finder to appreciate a matter in issue due to its technical nature.
§12.66 There is no bright line to determine when a subject matter falls within the normal experience of a particular trier of fact or becomes common knowledge thereby rendering expert evidence unnecessary. In R. v. F. (D.S.) , O’Connor J.A. stated:
There is no exact way to draw the line between what is within the normal experience of a judge or a jury and what is not. The normal experiences of different triers of fact may differ. Over time the subject matters that come within the normal experiences of judges and juries may change. … In the end, the court in each case will be required to exercise its best judgment in deciding whether a particular subject matter is or is not within the normal experience of the trier of fact.
Thus, the trial judge, acting as gatekeeper, must determine whether the proffered expert evidence is necessary to assist the particular trier of fact understand the issues or whether the trier of fact is unlikely to form a correct judgment about the matter if unassisted by expert opinion evidence.
OPINION ON ULTIMATE ISSUE
[ 10 ] The Supreme Court in Mohan stated the following:
There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial’s becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.
These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue. Although the rule is no longer of general application, the concerns underlying it remain. In light of these concerns, the criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue.
ANALYSIS
[ 11 ] Issues numbered 1, 2, and 5 meet the relevancy test in that they relate to issues in this trial. The same is not the case for Issues 3 and 4.
(a) Issue 3
[ 12 ] Certificates of analysis and the potency of the cocaine seized are already in evidence. Issue 3 does not relate to whether the defendant was a party to a conspiracy, was in possession of cocaine to traffic or trafficked in cocaine. The defence admits that the cocaine seized in the Wall apartment was for the purpose of trafficking.
[ 13 ] Whether the purity level of the cocaine is at 92% or 75% will neither assist not is it needed to ensure this jury is not misled or risks making an incorrect decision on the issues before it. The central question before this jury is whether the defendant was involved in an agreement to and the packaging, distribution and sale of cocaine and marijuana. The proposed evidence under Issue 3 does not meet the relevancy test and may not be introduced through this witness.
(b) Issue 4
[ 14 ] Use of the weapons, their ownership or possession is not in issue. The purpose of the guns, teasers, protective vests and knives are not related to the issues of conspiracy, possession to traffic or trafficking upon which the jury must decide.
[ 15 ] Issue 4 is not relevant to the issues in this trial. In addition, it does not meet the necessity test, as even absent personal experience with illegal drugs, any jury in this day and age is familiar from the regular stream of news reports with the association and use of violence and the illegal drug industry. Weapons found by police in the Wall apartment and the Saikaley home were introduced or shown to this jury. Expert opinion evidence as to these weapons and the common use of weapons in the trafficking of drugs is not needed or already known. The necessity test for Issue 4 is not met. Such evidence will not be permitted through this witness.
DEFENCE OBJECTION AS TO BIAS AND INDEPENDENCE
[ 16 ] This Court appreciates the concern of the defence as to what may be considered to be underlying “industry bias” of long tenured police officers seeking qualification to give opinion evidence for prosecution. One can only imagine the level of investment in officer hours and the cost to a yearlong investigation as in this case. Even a police officer from another district or force may feel some pressure to not, by their evidence, cause harm to an investigation and prosecution commenced by fellow police officers. The proposed expert knows that the investigating officers concluded there was sufficient evidence to recommend prosecution. Some subjects of such evidence are more problematic than others. This witness was not asked to comment upon the need of an expert so recognized to remain objective. The underlying concern expressed by the defence is not baseless.
[ 17 ] In Carmen Alfano Family Trust (Trustee of) v. Piersanti , 2012 ONCA 297 , the Court of Appeal stated:
106 Courts have taken a pragmatic approach to the issue of the independence of expert witnesses. They have recognized and accepted that experts are called by one party in an adversarial proceeding and are generally paid by that party to prepare a report and to testify. The alignment of interest of an expert with the retaining party is not, in and of itself, a matter that will necessarily encroach upon the independence or objectivity of the expert's evidence.
107 That said, courts remain concerned that expert witnesses render opinions that are the product of their expertise and experience and, importantly, their independent analysis and assessment. Courts rely on expert witnesses to approach their tasks with objectivity and integrity. As Farley J. said in Bank of Montreal v. Citak , 2001 12419 (QC CQ) , [2001] O.J. No. 1096, "experts must be neutral and objective [and], to the extent they are not, they are not properly qualified to give expert opinions.”
109 The report of the Goudge Inquiry, Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General: 2008), at p. 503, noted the importance of expert witness independence, quoting the principles described by the Court of Appeal of England and Wales in R. v. Harris and others , [2005] EWCA Crim 1980, at para. 271:
(1) Expert evidence presented to the court should be and seen to be independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
(2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate.
110 In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert's evidence rather than as a matter of the admissibility. Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency.
111 That said, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. In reaching such a conclusion, a trial judge may take into account whether admitting the evidence would compromise the trial process by unduly protracting and complicating the proceeding: see R. v. Abbey , 2009 ONCA 624 , 97 O.R. (3d) 330, at para. 91 . If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has a discretion to exclude the evidence.
[ 18 ] These principles of law apply equally to experts in a criminal trial. The level of independence or lack of bias should not be lower in a criminal trial.
[ 19 ] On this voir dire this witness showed some independence from the prosecution. When asked what drug the letter O refers to, Officer Gray indicated that he was unable to say. He also was unable to identify a brand name in the marketing of cannabis marijuana or whether Blue Mist was such a brand name. While these answers relate to qualification of the expert, they also were an opportunity for this witness to exaggerate his level of knowledge for the benefit of the prosecution which did not occur.
COST BENEFIT ANALYSIS
[ 20 ] This is not a relevant consideration in this case.
QUALIFICATIONS
[ 21 ] The Court is satisfied that the lengthy experience of this officer in the area of drug enforcement and the training and courses he has taken over the years relating to drug enforcement and the drug trade are sufficient on an experience basis to accept his opinion evidence on the Issues 1, 2 and 5.
[ 22 ] Based on the above analysis, the officer is accepted as an expert to give opinion evidence on Issues 1, 2 and 5.
[ 23 ] The following conclusions are included for clarity purposes even though not contained in the Issues:
(c) Hashish
[ 24 ] Although not contained in the above issues, the witness in his report and in his evidence on the voir dire , expresses an opinion as to the origins and value of hashish being another drug seized on November 5, 2009. As the defendant is not charged in relation to this drug, any evidence by this witness as to hashish fails the relevancy test under Mohan . Testimony as to hashish does not relate to an issue in this trial, is not therefore probative and is prejudicial to the defendant. For clarity, the witness may not provide expert or opinion evidence as to hashish.
(d) Ultimate Opinion Evidence
[ 25 ] The final paragraph in the report of this witness states that in the author’s opinion, the defendant was in possession of cocaine, marijuana and hashish for the purpose of trafficking. Appropriately, the Crown is not seeking to have this witness testify to that opinion. I note in any event that no grounds for that opinion are cited in the author’s report.
(e) Where Are Drugs Grown And Imported From
[ 26 ] This evidence is not relevant to the Issues in this prosecution and is not needed to assist the jury on the issue before them. It is not therefore admissible.
(f) Hierarchy Among Drug Traffickers
[ 27 ] There is an abundance of evidence in this case as to the actions of Mr. Saikaley and Mr. Wall. There is a lot of evidence as to the defendant being at work and his telephone communications with other people including Mr. Wall. The evidence of Mr. Sarsfield, heard so far in the trial, does not place him in the Wall apartment where the drugs were found on November 5, 2009 and where, it is argued, that the packaging and preparation of drugs for sale to the consumer took place.
[ 28 ] There is evidence which this jury may interpret of Messrs Saikaley and Wall dealing directly with consumers which is one of the roles alleged against the defendant. The offered evidence on general hierarchy within the trafficking of illegal drugs is not of assistance to or needed by this jury to decide these charges. It may not be led.
Kane J.
Released: October 30, 2012
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Crown – and – JAMES CULLEN SARSFIELD Defendant
REASONS FOR decision ON ADMISSIBILITY OF EXPERT OPINION EVIDENCE
Kane J.
Released: October 30, 2012