ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CrimJ (F) 09/3778
DATE: 2013-04-22
BETWEEN:
Her Majesty the Queen
– and –
Donovan Brown
Defendant
H. Akin and J. Toews, for the Crown
D. Paradkar, for the Defendant
HEARD: April 17, 2013
ENDORSEMENT ON CROWN EXPERT WITNESS
Ricchetti, J:
[1] The Defence objected to the Crown calling Constable John Carrabs as an expert witness. The Defence was prepared to agree to admit much of Constable Carrabs’ evidence as agreed facts without calling Constable Carrabs to testify. The Crown wished to call Constable Carrabs to give viva voce evidence.
[2] Faced with this impasse, the court conducted a voir dire to determine the admissibility of Constable Carrabs' evidence.
[3] At the conclusion of the voir dire, I advised counsel that Constable Carrabs was qualified as an expert in cocaine pricing, packaging, concealment, method of distribution and street level trafficking and could give an opinion on:
a) Pricing of cocaine at the ounce to kilogram levels;
b) The significance of individual packaged bags of cocaine;
c) The significance of separating drugs from the money;
d) The significance of possessing multiple cell phones; and
e) The significance of possessing large quantities of currency.
[4] I explained to counsel that by “significance” I meant that Constable Carrabs would be permitted to testify that each of the above facts are consistent with drug trafficking and could give his reasons why each of the above facts are consistent with drug trafficking.
[5] I also advised counsel that Officer Carrabs could not provide an opinion on whether he believed the accused had in his possession cocaine for the purpose of trafficking. Because possession in law requires knowledge of what is being possessed, this would implicitly suggest to the jury Mr. Brown had the requisite knowledge the cocaine was in the black duffle bag, the central issue in this case.
[6] Whether Mr. Brown had knowledge of the cocaine in the black duffle bag is a factual determination for the jury, a factual determination upon which the jury does not need the assistance of an expert’s opinion.
[7] These are the written reasons for my ruling.
The Proposed Expert Evidence
[8] Constable Carrabs prepared an expert report. A copy is attached as Schedule A.
[9] Constable Carrabs has approximately 12 years’ experience dealing with various drug investigations. He is a member of the Major Drug Squad. He trains recruits on drug related matters. An extensive Curriculum Vitae is attached to the expert report. Constable Carrabs expanded on his training and experience. I will not repeat Constable Carrabs’ extensive qualifications and experience as the Defence did not seriously contest his expertise relating to drug matters generally. The real thrust of the Defence's challenge was the lack of experience in cocaine investigations over a kilogram and the lack of extensive experience was it relates to the separation of drugs and money. I will deal with these issues in more detail below.
[10] Constable Carrabs proposed to opine on the following issues:
a) The pricing of cocaine at the gram level to the kilogram level. Given that this is an Agreed Fact which has already been introduced into evidence, nothing further needs to be said;
b) Drug traffickers tend or it is common for them to have cocaine separately packaged for the purpose of selling. Again, there was no real issue on this area since the Defence conceded in the Agreed Facts that the quantity of cocaine in this case was for the purpose of resale;
c) Drug traffickers tend or it is common for them to separate their money from their drugs;
d) Drug traffickers tend or it is common for them to have multiple cell phones; and
e) Drug traffickers tend or it is common for them to be in possession of large quantities of currency.
[11] It is these last three areas which the Defence objected to Constable Carrabs providing opinion evidence.
[12] For the opinion evidence to be admissible, the proposed evidence must meet four basic requirements:
a) the evidence is relevant;
b) the evidence is necessary to assist the trier of fact;
c) the evidence not be subject to an exclusionary rule; and
d) the evidence be adduced through a properly qualified expert.
See R. v. Mohan (1994), 1994 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.)
Qualified Expert
[13] I am satisfied that Constable Carrabs is qualified through his training and experience to give the opinion evidence proffered.
[14] There are two problems with the Defence position.
[15] The Defence challenge really goes to the weight to be given to Constable Carrabs' evidence. I am satisfied that given Constable Carrabs' extensive experience dealing with drug investigations, drug traffickers and informants, including those involving cocaine, he has the expertise to give the proposed evidence. It is the cumulative nature of his training and experience as it applies to the proposed evidence which needs to be considered.
Relevance
[16] I am satisfied the proposed evidence is relevant and would assist the triers of fact to determine the sole issue in this case – whether Mr. Brown had knowledge the duffle bag contained cocaine.
[17] The 5.5 kilograms were packaged in approximately five - one kilogram bricks and placed in the black duffle bag. Mr. Brown was seen leaving a residence with the duffle bag in one hand and a shopping bag in another hand. Mr. Brown proceeded to his vehicle and placed the duffle bag (with the cocaine) in the front seat of the car and placed the shopping bag (with the money) in the truck of the car. Mr. Brown was found to have 3 cell phones on his person when arrested and a 4th cell phone on the center console in the vehicle. The shopping bag in the trunk contained $28,000 in cash.
[18] The proposed evidence deals with what is common behaviour among drug traffickers. This evidence is not common knowledge. The Defence suggests that much of this would be known to the jury having seen these matters on TV or heard about them on the news. This suggestion by the Defence makes little sense. It is not known what the jurors might or might not know from their media experience, whether they have the same understanding or whether the information they have is correct or "hollywood's version" on these matters. More importantly, they have been told and will be told in the final charge to disregard all media including any media regarding the subject matter of this case and decide the case solely on the evidence in the courtroom.
[19] The proposed evidence is relevant to the issue of Mr. Brown’s knowledge of the contents of the duffle bag. If the jury finds as a fact that Mr. Brown’s conduct included some or all of the attributes which Constable Carrabs’ submits is commonly seen with drug traffickers, the jury might or might not infer that Mr. Brown knew that the contents of the duffle bag contained cocaine.
Necessary to Assist the Trier of Fact
[20] This evidence is necessary to assist the trier of fact. Without this evidence, the common behaviour of drug traffickers with respect to number of cell phones used, separation of money/drugs and carrying large quantities of drugs would not be known or before the jury for them to consider. For example, how else would the jury have evidence that it is common for drug dealers to keep numerous cell phones, one for personal matters and others for different areas of the city, different persons they deal with etc.? The same can be said for the separation of money and drugs and the significance of carrying large quantities of cash.
[21] Constable Carrabs is not proposing to testify that these facts, if they existed, are conclusive of drug trafficking and nothing else. His evidence is simply that these attributes or behaviour is commonly seen with persons who traffic in drugs.
[22] I am satisfied that the proposed evidence is necessary and will assist the jury in this case.
Exclusionary Rule
[23] No exclusionary rule was suggested by Defence counsel.
Specific Issues Raised by the Defence
[24] Let me deal with the specific issues raised by the Defence.
[25] The Defence cross examined Constable Carrabs as to his experience in drug investigations involving more than one kilogram of cocaine. It is true that Constable Carrabs has only had experience with 5 prior drug investigations where more than one kilogram of cocaine was involved. However, there was no evidence that drug trafficking in cocaine involving quantities greater than one kilogram is any different that drug trafficking in cocaine involving smaller quantities. Further, there was no evidence that drug trafficking in cocaine is any different that drug trafficking in other drugs. I am satisfied that Constable Carrabs is qualified to give the proposed opinion regarding cocaine. If, after cross examination, the jury concludes that Constable Carrabs’ experience in large quantity cocaine investigations is limited and is significant, they will no doubt take that into account in determining the weight to be given to Constable Carrabs’ evidence.
[26] This is not a basis on which to exclude Constable Carrabs' evidence on this issue.
Separation of Drugs and Money
[27] The Defence cross examined Constable Carrabs on his experience with investigations where the drugs and money were separated in a vehicle. There were approximately 4 such investigations. The Defence suggests that, as a result, Constable Carrabs is not qualified to give this evidence. I disagree. Constable Carrabs testified at the voir dire that it is common for drug traffickers to keep the money and drugs apart, not just in vehicles but also elsewhere, and why they do this. Again, Defence’s focus is too narrow.
[28] If the Defence had asked whether Constable Carrabs had been involved in any drug investigations where the drugs and money were separated in a Nissan Maxima, the answer would likely have been none. That answer would not mean that Constable Carrabs' training and experience in drug investigations, including those involving cocaine, would not permit him to give an opinion on the behaviour commonly seen with drug trafficker whether or not specifically in a Maxima.
[29] Whether the jury chooses to accept Constable Carrabs' opinion evidence on the separation of money and drugs because of Constable Carrabs' limited number of investigations involving vehicles, is for the jury to decide. The Defence is free to cross examine Constable Carrabs on this before the jury. If the jury concludes that Constable Carrabs’ experience in the number of drug investigations where this separation of drugs and money and is significant, they will no doubt take that into account in determining the weight to be given to Constable Carrabs’ evidence..
Number of Cell Phones
[30] Constable Carrabs' evidence is that it is common for drug traffickers to have numerous cell phones. He goes on to give the reasons why this is the case.
[31] Constable Carrabs candidly admitted that not everyone who has multiple cell phones is a drug trafficker. He candidly admits that other person may have multiple cell phones. This concession does not minimize the relevance of Constable Carrabs' evidence which is, it is common for drug traffickers to use multiple cell phones at the same time.
[32] It simply provides the jury with a possible explanation that multiple cell phones is but one indicia consistent with drug trafficking. Whether the jury accepts that this is relevant in this case is entirely up to them.
Large Quantity of Cash
[33] Constable Carrabs' evidence is that it is common for drug dealers to possess a lot of cash. He explains that drug trafficking is a cash business. Again, he admits that there may be other explanations for carrying a lot of cash, but according to Constable Carrabs, it is common for drug dealers to carry lots of cash. Whether the jury accepts that this is relevant in this case is entirely up to them.
Cumulative Evidence
[34] A significant problem with the Defence position is that he takes each piece of Constable Carrabs' evidence separately and suggests that there may be other innocent explanations. That may be so with respect to each piece of evidence. However, at the heart of the Constable Carrabs' evidence is that, the cumulative effect of each of these facts, if accepted by the jury, tends to be consistent with a drug trafficker. This also adds to the relevance of Constable Carrabs’ evidence.
Conclusion
[35] The evidence of Constable Carrabs is admissible as described above.
Ricchetti, J.
Released: April 22, 2013
COURT FILE NO.: CrimJ (F) 09/3778
DATE: 2013-04-22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen
v.
Donovan Brown
BEFORE: Ricchetti J.
COUNSEL: H. Akin and J. Toews, for the Crown
D. Paradkar, for the Defendant
ENDORSEMENT ON CROWN EXPERT WITNESS
Ricchetti J.
DATE: April 22, 2013