ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-1056-00
DATE: 20130731

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANH TUYET THI PHAM

CAROLINE CARRASCO, for the Public Prosecution Service of Canada
CAROLYNE KERR, for the Offender

HEARD: March 12 and 13, 2013

EXPERT WITNESS RULING

DURNO J.

[1] Anh Tuyet Thi Pham pled guilty to importing 68.1 grams of heroin into Canada. The Crown contends, as an aggravating factor on sentence, that the heroin was to be trafficked by Ms. Pham. Ms. Pham says the heroin was for her own use.

[2] The Crown seeks to qualify Royal Canadian Mounted Police (RCMP) officer Rodney Gray as an expert witness. Ms. Kerr, on behalf of Ms. Pham, objects to the admissibility of some of the evidence the Crown seeks to introduce through this officer submitting that he is not qualified to testify in the disputed areas.

The Disputed Evidence

[3] The Public Prosecution Service of Canada (PPSC) has filed an outline of the areas in which they seek to have the officer qualified to give opinion evidence, as well as Corporal Gray's curriculum vitae and his report of proposed evidence. The curriculum vitae, with list of case list of prosecutions in which he had given expert evidence, is Appendix “A” to these reasons and the officer's report is Appendix “B.” The proposed areas of qualification are as follows with the disputed areas underlined:

Nature of heroin and opium and its effects, methods of consumption; methods of distribution, including importation and hierarchy in drug organizations, production, pricing and concealment and packaging of heroin and opium; associated street terminology; and the habits and behaviours of users of heroin.

[4] The portions of the report that are relevant to this ruling are set out below with the contested areas underlined:

a. Injection: A heavy user will consume from 2 points to 5 points per day, depending on the purity of the heroin and the tolerance of the user. One point is 1/10 gram or 100 milligrams - a relatively small amount of powder. Five points represents ½ gram of heroin.

b. A user who consumes ½ gram of heroin per day is unable to have any other functionality in life, and this use is temporary; after a few days of this level of use, the user would either die or be forced into reduction through using an alternate substance (hydromorphone, codeine, methadone)

c. Other methods of use for heroin are smoking and snorting. Snorting is very unusual because the drug loses its "rush" factor and the euphoric stage is subdued. The user does not get much return for the investment. Smoking is more common, however, there is a tendency for the drug to be wasted during the smoking process. The high cost of heroin is enough to make a user think twice about letting his investment, literally go up in smoke.

d. The quantity of heroin seized (70 grams) represents a four and a half month supply for a heavy user. It would be unrealistic to suggest that a heavy user at this consumption rate would be fully functioning after a few days. (70 grams x 2 = 140 days divided by 30 days = 4.5 months.)

e. A user will not negotiate on the price based on the purity of the heroin. Users take what they get and use appropriate measures of caution during the injection stage to ensure their safety and prevent an overdose.

f. Pham demonstrated symptoms of a central nervous system depressant user. She could have used heroin or another opiate based substance prior to the trip to Canada and [was] feeling the physical symptoms associated with that activity, including reduced heart rate and breathing rate, lower body temperature and lower blood pressure. All of the paraphernalia found can be associated with heroin use. The glass pipes, aluminum foil, and rock like forms of heroin are consistent with the equipment needed to smoke heroin. The needles, razor blades, and filter cotton are consistent with the equipment needed to inject heroin.

g. Heroin users never carry a supply of heroin with them. Heroin users will generally have either drugs, or money, but not both. If they have money, they will buy heroin. If they have an excess of heroin, they will sell it in order to buy higher quality heroin. Their world revolves around maintaining a daily and uninterrupted supply of heroin so that they do not have to face withdrawal.

h. The value of the heroin seized if sold at the point level was $21,000, if sold at the gram level was $17,500, and if sold at the ounce level was $8,750.

i. In my opinion, all of the heroin seized and subsequently reviewed in this report was imported and in the possession of the accused for the purpose of trafficking. It would be sold "as is" and could be sold at any of the above mentioned weight levels.

[5] As a result of counsels' discussions, the following evidence the PPSC seeks to introduce is also contested and underlined for consistency:

j. Corporal Gray confirms his opinion that how the particular heroin was cut in this case suggests it's for the purpose of trafficking and that given the proportion of heroin and caffeine, 53, 54 and 44 percent, one would not smoke it, as a lighter would not yield sufficient heat to achieve the euphoric effects of heroin. Rather, one would inject the heroin, which tested as hydrochloride.

k. Corporal Gray indicated that it is suspect that the amounts located on Ms. Pham's person in the amount of two grams, and that if Ms. Pham had used it, it would not be exactly two grams.

The Test for the Admissibility of Expert Evidence

[6] Because expert evidence is presumptively inadmissible, the party tendering the evidence must establish, on a balance of probabilities, the admissibility of the evidence. R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal refused 2010 S.C.C.A. 125, at par. 71. According, it is for the PPSC to establish Corporal Gray’s expertise in the contested areas.

[7] The starting point in dealing with the admissibility of expert evidence is the Supreme Court of Canada's decision in R. v. Mohan 1994 SCC, [1994] 2 S.C.R. 9. Four criteria determine the admissibility of expert evidence: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule and a properly qualified expert. There is no dispute that the contested evidence qualifies under the first three criteria. It is the last criteria that is at issue in this ruling, a properly qualified expert. To be admissible, the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify. at para. 27.

[8] Justice Doherty provided further assistance in approaching the admissibility of expert evidence in Abbey. The inquiry is not conducted in a vacuum. Before making a ruling on admissibility, the trial judge must determine the nature and scope of the proposed expert’s evidence. In doing so, the judge sets out not only the boundaries of the proposed expert’s evidence, but also the language in which the opinion may be proffered. Overreaching by experts is probably the most common fault leading to reversals on appeal. at para. 62.

[9] Doherty J.A. distinguished between the evidence given by non-expert and expert witnesses. The experts "take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material." The trier of fact must then decide whether to accept or reject the expert’s opinion as to the appropriate factual inference.

[10] Finally, in Abbey, the Court identified a two-step approach. First, the party seeking to have the evidence admitted must demonstrate the existence of the four Mohan criteria using a rules-based analysis. Second, the trial judge fulfils the gatekeeper function by conducting a cost-benefit analysis in which the judge must decide whether expert evidence that meets the criteria is sufficiently beneficial to the trial process to warrant its admission. at para. 76 and 78. Unlike the first rules-based analysis, the second step involves an exercise of judicial discretion.

[11] On the gatekeeper determination, the judge finds whether the expert evidence despite meeting the Mohan criteria, should nevertheless be excluded because it is not sufficiently beneficial to the trial process to warrant its admission given the potential harm to the trial process that may flow from its admission. It is a case-specific cost-benefit analysis that goes beyond truisms about the risk inherent in expert evidence in general and coming to grips with those risks as they apply to the particular circumstances of the specific case. at para. 92. It involves a consideration of the extent to which the proffered opinion evidence is necessary to a proper adjudication of the facts to which the evidence is directed. at para. 93. The trial judge determines whether the evidence is worthy of being heard by the trier of fact but not whether the evidence should be accepted and acted upon by the trier of fact. at para. 89

[12] The trial judge identifies and weighs competing considerations to decide whether on balance those considerations favour admission or exclusion of the evidence. Abbey, at para. 79. Included at this stage is an expanded consideration of relevance, the first Mohan criteria. Mohan dealt with logical relevance, whether the existence or non-existence of a fact would be more or less likely with the evidence than without. Legal relevance is a factor in gatekeeping - whether the evidence is sufficiently probative to justify its admission despite the prejudice that may flow from it. at para. 82. Finally, the necessity of assisting the trier of fact, one of the Mohan criteria, is addressed as part of the second stage.

[13] The benefit side of the evaluation requires considering the probative value and the significance to the issue(s) to be determined. Probative value includes an assessment of the reliability of the evidence as it relates to the subject matter of the evidence, the methodology used by the expert in arriving at his or her opinion, the expert’s expertise and the extent to which he or she is shown to be impartial. at para. 87.

[14] The costs side addresses the various risks inherent in the admissibility of expert opinion evidence. Those risks were described by Binnie J. in R. v. J.-L.J. 2000 SCC 51, 2000 2 S.C.R. 600, as consumption of time, prejudice and confusion. The most important consideration is that a jury would be unable to make an effective and critical assessment of the evidence. Doherty J.A. continued at para. 90:

… The complexity of the material underlying the opinion, the expert's impressive credentials, the impenetrable jargon in which the opinion is wrapped and the cross-examiner's inability to expose the opinion's shortcomings may prevent an effective evaluation of the evidence by the jury. There is a risk that a jury faced with a well presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury: J.-L.J.I, at para. 25.

[15] Caution must be exercised that the expert will usurp the fact finding function of the trier of fact. Unnecessary and excessive resort to expert evidence can also give a distinct advantage to the party with the resources to hire the most and best experts - most often the Crown. at para. 91.

[16] In determining the admissibility of the contested evidence I have considered the authorities relied upon by counsel and do not propose to review each of them in detail. Rice v. Sockett (1912), 1912 561 (ON SCDC), 27 O.L.R. 410 (H.C.), R. v. Mohan 1994 80 (SCC), [1994] 2 S.C.R. 9, R. v. Russell (1994), 1994 336 (ON CA), 95 C.C.C. (3d) 190 (C.A.), R. v. McIntosh (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), R. v. D.S.F. (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), R. v. J.J. 2000 SCC 51, [2000] 2 S.C.R. 600, R. v. Klymchuk (2005), 2005 44167 (ON CA), 203 C.C.C. (3d) 341 (Ont. C.A.), R. v. Munro 2006 BCSC 1937, R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330 (C.A.), R. v. N.O. 2009 ABCA 75, [2009] A.J. No. 213 (C.A.), R. v. Sarsfield [2012] O.J. No. 6045 (S.C.J.), R. v. Siles [2013] A.J. No. 289 (Prov. Ct.), R. v. Saikaley, 2013 ONSC 1854.

[17] In addition, I have considered R. v. Mathison, 2008 ONCA 747 where the defence sought to qualify a licensed pharmacist to give opinion evidence on the general physical and cognitive effects of carbon monoxide poisoning. The Crown agreed he could give evidence on the physical effects as they were well established in the literature and the Crown’s forensic toxicologist had already testified to those effects. The trial judge ruled he could give evidence on the physical effects and on the effects on Mathison’s blood pressure medication but not on neuropsychiatric or cognitive effects of carbon monoxide poisoning. Mathison was convicted and appealed contending the pharmacist should have been permitted to testify about the cognitive effects and on whether Mathison suffered from them when he caused his wife’s death.

[18] The Court of Appeal disagreed upholding the trial judge’s ruling that the pharmacist held no degrees in medicine, psychiatry, psychology or toxicology; carbon monoxide poisoning was within the discipline of forensic toxicology; carbon monoxide was not a drug; the pharmacist had published no articles on the effects of carbon monoxide, he had no formal training in carbon monoxide poisoning and had not conducted any research in the area; and although he had participated in the treatment of five to ten persons suffering from carbon monoxide poisoning, he had always been a member of a treatment team with other professionals, including medical doctors.

[19] The appellant submitted the witness was qualified because he had extensively reviewed the medical literature on the effects of carbon monoxide poisoning. The Court of Appeal agreed with the trial judge’s ruling that this alone did not qualify the witness. The trial judge wrote:

In my opinion, it is inappropriate to find a witness to be a properly qualified expert where the source of the proposed expertise comes from reviewing literature -- albeit with a facility that most of us would not have -- but in respect of a subject matter that is outside the field of that witnesses' (sic) education and training. In particular, the bulk of the opinion letter deals with neuropsychiatric problems attributed to carbon monoxide and purports to qualify or bolster as being reasonable the reports made by Mr. Mathison to this witness in respect of neurological or behavioural aspects, which in my opinion, are not within Dr. Rosenbloom's sphere of expertise in the ordinary sense.

[20] The Court of Appeal also agreed with the Crown’s submission that if it were otherwise courts would be obliged to qualify as experts witnesses who could not offer a real opinion of their own on any given subject but could only point to what they had read.

[21] The Crown places reliance on the Court of Appeal judgment in R. v. Russell (1994), 1994 336 (ON CA), 95 C.C.C. (3d) 190 where the trial judge had refused to qualify a defence expert witness in the area of repressed memory because he would not qualify a witness as an expert unless the witness had some experience either as a clinician or some articles written by him with respect to the particular subject. The Court of Appeal ordered a new trial finding the trial judge erred in not qualifying the witness. In doing so, the Court noted the witness was familiar with some of the literature and had attended a seminar on the subject of repressed memory. As the Supreme Court held in R. v. Marquand (1993), 1993 37 (SCC), 85 C.C.C. (3d) 193 at p. 224, "The admissibility of expert evidence does not depend upon the means by which that skill was acquired."

[22] I am not persuaded the case assists the PPSC's application. First, it was admitted that the proposed witness was an expert in the field of memory. Repressed memory was at least closely related to his area of expertise. Second, the effect of the ruling was to leave the Crown's expert evidence on repressed memory unanswered. Third, the reason he was not qualified was found to be flawed. Fourth, the Supreme Court went on to say that the witness must be sufficiently experienced in the subject-matter at issue.

[23] In R. v. Selles (1997), 1997 1150 (ON CA), 116 C.C.C. (3d) 435 (C.A.), the Court of Appeal noted the minimal standard that must be met by expert’s citing R. v. Beland (1987), 1987 27 (SCC), 36 C.C.C. (3d) 481 (S.C.C.) at p. 491, in which McLachlin J. cited with approval the following comment from R. v. Marquad (1995), 1993 37 (SCC), 85 C.C.C. (3d) 193 (S.C.C.) at 224, “the only requirement for the admission of expert opinion is that the expert witness possess medical knowledge and experience going beyond that of the trier of fact.”

[24] When determining whether a witness is qualified to give evidence in the proposed area, that he or she has never previously been qualified in the area sought is not a bar to admissibility, R. v. Melaragni (1992), 1992 12764 (ON SC), 73 C.C.C. (3d) 348 (Ont. Ct. Gen. Div.), nor is the fact that another expert might be more qualified. R. v. Peng (2009), O.A.C. 154 at para. 20

[25] Ms. Kerr also raised issues regarding the witness’ credibility because of the accuracy issues that arose with Corporal Gray’s list of cases in which he had contributed expert evidence. It would be a rare case where credibility issues arose at the qualifications hearing given the issues to be determined. In R. v. L.S. (1999), 1999 3002 (ON CA), 133 C.C.C. (3d) 493 the Court of Appeal examined the trial judge's refusal to qualify a doctor whose evidence Her Honour had found to be evasive, vague and hard to follow, clearly leaving the trial judge with a negative impression of the witness. After concluding the trial judge had failed to consider that the witness was a highly qualified forensic psychologist of long standing with considerable experience, the Court noted that the concerns raised by the trial judge about the extent of his experience and the focus of his involvement as well as the manner in which he testified were all issues that would go to the weight to be accorded his evidence, rather than to the threshold issue of his qualifications.

[26] Turning next to police expert witnesses, the authors of Prosecuting and Defending Drug Offences, (Canada Law Book Inc.), Aurora, examine two cases where police officers were permitted to give expert evidence outside legitimate legal boundaries. In R. v. Rose (2001), 2001 24079 (ON CA), 153 C.C.C. (3d) 225 (Ont. C.A.) the Court held the fact the officer had been involved in six crack cocaine purchases formed no basis to qualify him as an expert is assessing whether the accused was more likely the purchaser or seller. The question did not relate to an identifiable field of expertise. As such, the officer's opinion was irrelevant and highly prejudicial.

[27] In R. v. Fougere (1988), 1988 7117 (NB CA), 40 C.C.C. (3d) 355 (N.B.C.A.) 355 at pp. 356-8, the Court held a police officer was permitted to give his interpretation of jargon used in intercepted private communications but not the inferences to be drawn from the conversations.

[28] The authors provide a list of "some" of the areas which courts have accepted as being within the proper scope of police drug experts, including techniques used by people in the drug trade to mask their operations or avoid detection, the significance of weights and values of drugs, the significance of drug purity, methods of drug production and methods of drug use. While the authors have provided a non-exhaustive list, it does not include pharmacology, the effects of the drug on behaviour or whether ingesting a certain amount of the drug would be fatal.

[29] There are police expert witnesses with extensive experience in drug cases including in their role as undercover officers and dealing with agents and informants have been qualified to give expert opinion evidence on consumption, including dosage, the amounts consumed by a heavy user, that most heavy users are unemployed, whether the weight is consistent with trafficking as opposed to personal use, coded language and jargon, packaging and prices. R. v. Pimmentel [2004] O.J. No. 1052 (S.C.J.). See also: R. v. Lucas [2009] O.J. No. 5330 (S.C.J.), R. v. Bennett [2010] O.J. No. 6152 (C.J.), R. v. Woods [1995] O.J. No. 4432 (Prov.Div.), R. v. Hui [1988] O.J. No. 1881 (C.A.), R. v. Cross 2005 ONCJ 350, R. v. Medeiros [2001] O.J. No. 5664 (S.C.J.)

[30] The admissibility of an expert's evidence is a case-specific determination. That another police officer in another court has been qualified to give evidence in an area disputed in this case, while instructive, is not determinative. R. v. Siles, [2013] A.J. No. 289 (Prov. Ct.), R. v. Munro, 2006 BCSC 1937, R. v. N.O. 2009 ABCA 75, [2009] A.J. No. 213 (Alta. C.A.) Similarly, that the same officer has been qualified to give expert evidence in previous cases, while most instructive, again, is not in itself determinative. This particularly, arises where the witness was not qualified in the contentious areas of evidence being considered. R. v. Saikaley, 2013 ONSC 1854 at para. 7. Finally, that the witness believes he or she is qualified to give evidence in the disputed area is not determinative.

[31] In summary, the following non-exhaustive list of factors assist in determining whether a tendered expert witness is qualified:

• the manner in which the witness acquired the special skill and knowledge upon which the application is based;

• the witness' formal education (i.e. degrees or certificates);

• the witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons);

• the witness' membership and participation in professional associations related to his or her proposed evidence;

• whether the witness has attended additional courses or seminars related to the areas of evidence in dispute;

• the witness’ experience in the proposed area(s);

• whether the witness has taught or written in the proposed area(s);

• whether, after achieving a level of expertise, the witness has kept up with the literature in the field;

• whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whether the previous evidence was contested;

• whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and

• 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.

The Qualification of the Expert Witness

[32] Corporal Rodney Gray’s police career with the RCMP started in British Columbia in November, 1992, where he was stationed until he was transferred to Toronto in 2005. After receiving his BA in music and his Master of Music degree in performance he joined the RCMP. His basic training involved some lectures and drug recognition including heroin. While in British Columbia he dealt with "literally hundreds of clients in a drug capacity through vehicle stops, contacts, through calls contacts just in the community and through patrolling and policing." He came into contact with numerous controlled substance users and traffickers. There was a proliferation of people using drugs as the trafficking and use of heroin and cocaine was a real issue in the community. He came into contact with persons under the influence of heroin, at least one drug user a day and often many. He knew many of them and would make a point of going and talking to them to find out what was going on.

[33] He attended courses where the pharmacology of heroin was discussed "to a degree" but he was not a scientist. They were given the molecular structure but the discussion was the purity of the drug, what it was, the effects it has on the human body in relation to consumption, pricing, and purity.

[34] He also used "sources" and agents who were drug users. He talked to them about how they took their heroin, that some were employed and functioning in the community holding jobs. He gained a lot of insight into what these persons' days were comprised of and their use of heroin including not trusting themselves enough to have a quantity of drugs on them for fear of overdosing. He had extensive experience in the packaging of heroin. Through interviewing "clients," researching the topic and providing information to other officers, he gained a real understanding of the business model for the drug trade hierarchy. Through his involvement with heroin user sources he learned of their habits and behaviours as well as the terminology used in the drug subculture.

[35] The officer was able to tell when someone was under the influence of heroin from his training and experience having seen people after they took heroin. He had been to four expert witness workshops where various drugs including heroin were discussed. The presentations included the pharmacology of the drugs, the rates and methods of consumption, the methods of consumption, and the purity. He testified the "information was provided by forensic toxicologists, … medical people, but you know, mostly forensic toxicologists who were able to provide this evidence." Later, he said the information all came from one forensic toxicologist from the RCMP forensic laboratory and from a Toronto Police Service officer. The forensic toxicologist was the one who informed him about the chemical compounds, the molecular structure, purity, the effects on the human body and the prices. While pharmacological material was discussed at conference, it was not presented by a pharmacologist.

[36] With regards to the effects of drugs, he learned everything by either talking to people or reading books, "getting in contact with some sort of media." He talked to user traffickers, interviewed accused persons and talked to other officers who came into contact with "several clients who are drug users and traffickers." He read forensic journals and periodicals as well as books produced by other drug agencies such as the Drug Enforcement Administration in the United States (DEA) and Canadian law enforcement books. He had probably read medical journals but had no notes of doing so. He also browsed the internet cautiously. He kept up to date with the United Nation's Office on Drugs and Crime that releases an annual report. He watched interviews and documentaries on television and film. He "just [takes] every opportunity to try to stay up-to-date and figure out what's going on." He wanted to learn everything about opium and become an expert in it.

[37] With respect to the list of 37 cases in which he had given opinion evidence, he said that that he testified in the majority of the cases listed. The list was an accurate reflection of his opinion evidence. He had given evidence in court in over thirty cases including having been qualified to give opinion evidence in relation to heroin four times and opium once. He had never been ruled unqualified to give evidence.

[38] He was cross-examined extensively in relation to his curriculum vitae including the contested areas. He had prepared reports for 23 drug cases. His own list of areas of expertise listed methods of consumption did not include the effects of heroin on users, the habits of users or the pharmacological effects of drugs. When asked if it was a new area, he said he had talked about it as an expert in court. Before coming to Ontario, he had never given evidence concerning heroin or opium although when he first gave evidence in a cocaine trial he felt he did a good job. He "would have been ready to do that if it was a heroin trial as well." He just did not have the opportunity to do so.

[39] He had been qualified to give evidence on how morphine affects the physicality of the brain and noted that information was "fairly well documented." One source was the latest DEA literature, not from users. He had never been qualified as an expert in an importing case where the importer was a user.

[40] When it was pointed out that some of his entries on his list of cases were inaccurate, he denied that he was trying to mislead. He later, said his list was "not a very good state of affairs."

[41] On the second day of his evidence, the officer brought a green folder to the witness box. While neither defence counsel nor the court noticed it the day before he said he had had it in the witness box with him. The file contained a report prepared for a recently completed heroin case, an article from a medical journal on ways of treating heroin injectors, a power point and his notes from one of the courses he had taken dealing with heroin, and a list of the heroin cases in which he had been involved. He was questioned about some of the contents of the medical article and had no idea what the excerpts meant. There were significant portions of the article he did not understand. He had refreshed his memory as to withdrawal symptoms of heroin users from the power point and his notes from a 13 years old document.

[42] He testified that he did not have a great memory. When asked to list cases he had been involved with it put him in a difficult spot and he really felt quite stupid. The notes were to jog his memory. Since his memory is short, he brought the items to read. That he had the article just went to continuous learning, trying to get more facts into his mind and making them stay there. He could not remember everything although he could hopefully know more than anyone else in the courtroom about the drug. He could not know everything when it comes to heroin.

[43] He said he had looked up the article on heroin to help him. He was always looking for more information on these topics. It was difficult because his main source of information still came from people that are using these substances. The book-learned material is somewhat useful in clarifying some factual information. He tried to collect his information from talking to people and reading books. With heroin he really relied on talking to users about what the reality is. While reduced breathing and heart rates as well as lower body temperature and blood pressure were observations, he could not diagnose those conditions. Nor could he say a reduced heart rate was due to a specific condition.

[44] He agreed that caffeine, a cutting agent, was identified in the heroin seized. When challenged on his evidence that caffeine was used to cut heroin hydrochloride at the street level by injectors, he said he learned that by seizing heroin from users and traffickers, and by talking to traffickers and users. The vast majority of his contacts were with injectors. He had also dealt with about twelve heroin users outside of his employment as a police officer. He was asked how many were wealthy. While he never inquired, he would have been surprised if any had over $50,000 in their bank account as the offender does.

[45] In re-examination, he said he had not included pharmacology under his areas of expertise because it was included under methods of consumption. Methods and rates of consumption are linked to basic body pharmacology. His knowledge of pharmacological issues in relation to rates of consumption and ingestion of drugs is basic. He could also talk about blood stream, veins, arteries, capillaries, the routes the blood takes to the heart including the liver and that the liver detoxifies the blood which eventually went to the brain. The object of drug intake was to get the drugs to the brain. He could not testify what happens to the human body at the cell structure level.

The Positions of Counsel

[46] Ms. Carrasco submits evidence of the nature of heroin and its effects is "standard fare for this kind of expert." This officer has the knowledge based on his practical experience as well as the workshop training, and keeping up to date through reading. He has dealt with many heroin users and the nature of heroin is a very basic issue about which he is knowledgeable because of his background. In order to give that evidence he has to have an understanding of the nature heroin. He has that knowledge.

[47] The PPSC describes the officer as "very curious about these things and is going beyond the confines of his knowledge base." He has a deep interest in heroin and opium. At the seminars he has attended the toxicologist provided an understanding of the pharmacology of heroin. While he is not a medical doctor, a toxicologist or an addictionologist, he knows certain things about heroin. His curriculum vitae notes intensified research through reading forensic journals and periodicals, discussions with drug lab staff, police officers and police agents.

[48] As regards the effects of heroin on users, he has been on the street talking to users. He has observed them under the influence of heroin, functioning under the influence of heroin and in withdrawals. It is like a layperson being able to give evidence regarding a person being under the influence of alcohol. This officer has been doing heroin investigations, talking to the people and seeing the effects. He has unique and extensive experience. From his discussions with heroin users he knows the methods and rates of consumption and rates as well as that users do not trust themselves to have a quantity of drugs on them for fear of overdosing.

[49] Ms. Kerr submits Corporal Gray is not qualified to give evidence in the contested areas. In the alternative, she argues that applying the gatekeeper function the contested evidence should be excluded. That the officer has taken some courses at which a toxicologist lectured in this area to let him understand the components of his job does not make him an expert in relation to how frequently a user uses, users' ability to function nor does it qualify him to explain the symptoms displayed by the offender at the airport.

[50] The offender submits the officer is not a behavioural toxicologist. Accordingly, he cannot testify about how chemicals affect people. He is not an addictionologist who would be capable of diagnosing persons with addiction disorders. Nor is he a psychologist who could evaluate and study behaviour and the mental processes behind such behaviour. While his observations of the symptoms displayed by heroin users is admissible because it is his observations, not his opinion, when he strays into what a heavy user will use per day and how a person who consumes half a gram of heroin is unable to function, that the user would die or be forced into reduction through the use of alternative substances and the reasons users do not smoke heroin are areas in which he is not qualified to testify.

[51] Ms. Kerr submits the officer cannot testify that the manner in which the seized heroin was cut precludes smoking, that heroin addicts never carry both drugs and money, if they have excess heroin they would sell it, and the process of an addict becoming an addict. In the contested areas, the officer is a student, not an expert. What he is doing it taking information that was a portion of a workshop presentation and repeating it. It is like a university class where the professor teaches on a given subject for 45 minutes and the students have some knowledge of the issue but are not experts. For example, his views on what degree of "cuttable" heroin can be smoked were apparently taught to him somewhere by a toxicologist. That does not make him an expert, it makes him a very good student or a very good parrot of the information he has received.

[52] Ms. Kerr accepts that police officers have to have some working knowledge of what heroin is and the cutting agents used to assist in seizing items and to give evidence regarding pricing. That does not mean an officer is an expert in the pharmacological make-up of heroin or its effects on behaviour. Corporal Gray's inability to understand a lot of the medical article regarding the heating temperatures of heroin, an issue that went directly to his opinion that the heroin seized cannot be smoked and must be sold, shows his lack of qualifications. If he cannot explain the methodology, he is not qualified to give the conclusion as his expert opinion.

Analysis

[53] This ruling deals only with admissibility. Is Corporal Gray qualified to give evidence in the contested areas? At times, the arguments drifted over the admissibility-weight line. As with any expert evidence, that contested evidence is admitted does not remove the trier of facts’ duty to assess the weight to be attached to the evidence.

[54] There is no dispute that Corporal Gray is qualified to give opinion evidence in some areas of drug prosecutions. He has been so qualified in the past. However, being an expert in relation to drugs does not mean that he is competent to give evidence in relation to all aspects of drugs. As Doherty J.A. noted in Abbey, "a cautious delineation of the scope of the proposed expert evidence" and strict adherence to those boundaries, if the evidence is admitted, are essential. The judge must identify "with exactitude the scope of the proposed opinion that may be admissible." at paras. 62 and 63.

[55] Ms. Carrasco submitted that with the officer's experience with heroin users that he is qualified to give opinion evidence in a similar way that a lay person can give opinion evidence regarding the symptoms of alcohol impairment. His experience dealing with heroin users puts him in the same category as lay persons who are familiar with the indicia of alcohol consumption.

[56] I am not persuaded the analogy is of assistance. First, the observations the officer has made of persons under the influence of heroin is not expert evidence. A lay witness can say he or she observed certain symptoms. That is what a lay witness does with indicia of alcohol symptoms.

[57] A lay person can also give opinion regarding the degree of impairment. In R. v. Graat 1982 33 (SCC), [1982] 2 S.C.R. 819, the Supreme Court of Canada held that police officers could testify that in their opinion the driver's ability to operate a motor vehicle was impaired by the consumption of alcohol. The Court concluded that non-experts could give their opinion as follows:

Before this Court counsel for the appellant took the position that although opinion evidence by non-experts may be admissible where it is "necessary" the opinions of the police officers in this case were superfluous, irrelevant and inadmissible. I disagree. It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state. This is because it may be difficult for the witness to narrate his factual observations individually. Drinking alcohol to the extent that one's ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witness to narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicated to some particular extent. If a witness is to be allowed to sum up concisely his observations by saying that someone was intoxicated, it is all the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree. I agree with the comment of Lord MacDermott L.C.J. in his dissent in Sherrard v. Jacob, supra:

I can find no good reason for allowing the non-expert to give his opinion of the driver's observable condition and then denying him the right to state an opinion on the consequences of that observed condition so far as driving is concerned [at p. 162].

Nor is this a case for the exclusion of non-expert testimony because the matter calls for a specialist. It has long been accepted in our law that intoxication is not such an exceptional condition as would require a medical expert to diagnose it. An ordinary witness may give evidence of his opinion as to whether a person is drunk. This is not a matter where scientific, technical, or specialized testimony is necessary in order that the tribunal properly understands the relevant facts. Intoxication and impairment of driving ability are matters which the modern jury can intelligently resolve on the basis of common ordinary knowledge and experience. The guidance of an expert is unnecessary.

[58] The Court also noted that in those determinations the opinions of police officers and lay persons was of equal weight. There was no special reason for preferring the police evidence over the opinions of other witnesses. Ordinary people with ordinary experience were able to know as a matter of fact that someone was too drunk to perform certain tasks such as driving a car or climbing a ladder. The fact a police officer had seen more impaired drivers than a non-police witness was not in itself a reason to prefer the evidence of a police officer over a civilian.

[59] When dealing with observations and conclusions regarding the observable effects from heroin use, there is an additional component. Unlike the impaired individual who most often has the odour of an alcoholic beverage on his or her breath, there would have to be evidence that the symptoms were as a result of heroin consumption.

[60] The observable symptoms of someone who has ingested heroin are admissible. The degree of impairment as a result of heroin ingestion would be within Corporal Gray's qualifications. However, it is in relation to how prolonged ingestion of certain amounts of heroin and the effect on the person that the analogy breaks down. Without properly acquired medical, toxicological and/or pharmalogical expertise as defined in the cases, a lay person could not testify as to the effects on the person if they continued to consume x ounces of alcohol for 5 days.

[61] Ms. Kerr argued that Corporal Gray was a student and not an expert in certain areas. I am not persuaded the terms are mutually exclusive. Many qualified experts continue to be students. Otherwise, he or she would be criticized for not keeping up with changes in the field. The question is whether he or she achieved sufficient experience and skill in the area under consideration before seeking to keep up to date.

[62] While the officer’s method of setting out his previous cases, was careless and misleading, at this stage I am not persuaded those aspects of his evidence impact on his qualifications to give the evidence. To be sure, reading the list of cases before cross-examination presented a different picture of his experience with cases than the more accurate account. However, I find, at this stage, it is a matter of the weight to be given to his opinion as opposed to admissibility.

[63] In determining whether Corporal Gray is qualified in the disputed areas, the starting point is his evidence regarding the sources of his knowledge that the PPSC submits qualify him to give the contested evidence. His main source is his dealing with heroin users and his police work. His work with users in various in various capacities as a police officer is the foundation for his knowledge. That is hands-on experience in the world of heroin users. While there has been at least one case in which a heroin user was qualified as an expert in consumption etc., R. v. Woods [1995] O.J. No. 4432 (Prov.Div.), this officer has the advantage of having spoken to numerous users. He has seen them and talked to them. He has been involved in seizures of heroin. That background provides an adequate foundation to qualify the officer as an expert in relation to the observable effects on heroin consumers, the rates of consumption, purity and uses. It also qualifies him in regard to their observable habits and what he learned about what heroin users do.

[64] Like other officers with extensive experience in drug investigations and dealing personally with drug users, he has sufficient expertise in the significance of weights and the values of drugs, the significance of the purity, as well as methods and dosages of consumption. In these areas, I am persuaded that Corporal Gray has "sufficient experience in these subject matters. His police experience in these areas is augmented by the workshops he attended and some of his own research. That someone else might be more qualified, that he has not been so qualified in the past, or that it appears in his curriculum vitae are not determinative individually or collectively. The determination is case-specific.

[65] Where problems arise is when the officer goes beyond his main sources of information, what he has learned on the street in his police and community work, and gets into areas of medicine, pharmacology, toxicology and addictionology. To use Ms. Carrasco’s terms, his knowledge base is his dealings with heroin users. The problems arise when he goes beyond his knowledge base. I am not persuaded he has sufficient experience to be qualified to give evidence in these areas. No doubt there have been some references to areas of toxicology, medicine, pharmacology and addictionology of heroin as well as other controlled substances at the workshops. However, listening to a lecture for some unspecified period of time at a workshop that dealt with the contested areas does not qualify the witness as an expert.

[66] As was the case in Mathison, that the witness with some knowledge in an area has read texts etc. does not make him or her an expert qualified to give opinion evidence in the areas in which he had read. That some of the information in these areas is "readily available" is far from the appropriate test to be applied. Otherwise, someone who has done a lot of reading in an area would be qualified if the information was readily available. Curiosity, a keen interest in and/or self-teaching does not an expert make even when other aspects of heroin are within his expertise. Having read a book, article or attended a workshop where an issue was touched upon does result in the witness being qualified to give opinion evidence in those areas.

[67] Assuming a trier of fact were to accept everything in the report, curriculum vitae and evidence to date; he or she would know more about heroin than most people and more than most jurors. That does not make that person an expert qualified to give opinion evidence on all aspects of heroin or even on the areas covered to date. Assuming that that person had had extensive exposure to heroin users and was well aware of their consumption habits when coupled with what he or she learned in this case still does not make them an expert in all the disputed areas.

[68] Turning next to the areas in contention, first, the Rate of Consumption, paragraphs 2 - 5 on page 1 of the report. I am persuaded that his police experience dealing with heroin users, from listening to intercepted private communications and from his conversation with heroin users outside of his police work provide him with sufficient personal background information to provide the general rates of consumption. This experience is supported by the courses he has attended and his own studies. It is evidence frequently given by police drug experts and his experience qualifies him to provide an opinion in this area. Subject to the gatekeeper function to be examined later, paragraph 2 on page 1 is admissible.

[69] I am not persuaded the officer can testify regarding the effects on a user who consumed one half gram of heroin per day including that after a few days that person would die or be forced into reduction through using an alternative substance. These areas involve toxicology and medicine. While he may have heard lectures on the topics neither the lectures nor any self-teaching qualifies him as an expert in these areas. It goes too far into the fields of medicine and toxicology, and beyond areas in which he is qualified to testify. The officer is not qualified to give the evidence noted in paragraph 2 on page 1.

[70] The next paragraph deals with methods of use, an area in which police expert witnesses are commonly qualified to give evidence. Bearing in mind the minimal standard noted earlier for an expert to be qualified in an area, I am persuaded the officer is qualified to give this evidence. His extensive experience with heroin users over numerous years allows him to know the methods of use. Being able to testify about the methods of use implies the costs and benefits of the methods of consuming. Subject to the gatekeeper function, I am persuaded paragraph 4 on page 1 is admissible.

[71] Paragraph 5 blends the officer's personal experience with medical and toxicological evidence. In the result, the first portion is admissible and the second is not. Having found that the officer is qualified to give an account of the daily use of a heavy user from his personal contacts and off the street learning, it is not expert evidence how long 68 grams of heroin would last a heavy user. If I am wrong in that conclusion, he is qualified to give the evidence.

[72] The second portion of paragraph 5 falls into the same areas as those excluded in paragraph 3. The officer purports to give an opinion that is effectively the same as in paragraph 3 - the effect of using one half grams of heroin a day for a prolonged period of time. I am not persuaded on this record that the officer is qualified to give what amounts to medical and/or toxicological evidence as to the effects of a prolonged period of ingestion of a given amount. Those areas are beyond his areas of expertise.

[73] Turning next to the Comments on Exhibits, at page 3 of the report, there is no issue taken with paragraphs 1 - 6 as they are well this officer’s areas of expertise, the importation and trafficking of heroin. Neither is paragraph 8 contested. It lists items seized, observations others made of the offender at the airport and her reported symptoms. The contentious paragraphs are 7 dealing with the habits of users, that they will not negotiate on the price based on purity, taking what they can get and using an appropriate measure of caution during the injection stage to ensure their safety and prevent overdose, and paragraph 9 dealing with what inferences the officer drew from the observations from the airport noted in paragraph 8.

[74] As regards paragraph 7, the habits of users, noting the minimal standard required for qualification, I am persuaded the officer’s experience with heroin users provides him a sufficient basis upon which to testify that users take precautions while ingesting heroin to ensure their safety. This is part of testifying about methods of consumption. As I read the first sentence in paragraph 7, the officer is essentially saying that when buying heroin users are not concerned with bargaining about the purity and take their own precautions when using. That is within his area of expertise from dealing with many users and is linked to the consumption. Subject to the gatekeeper function, the evidence is admissible.

[75] With regards to paragraph 9, the officer is qualified to testify that the observable symptoms are consistent with a heroin user based on the above analysis considering Graat. The same applies for the symptoms the offender reported at the airport. His personal experience permits him to give an opinion on the symptoms noted - are they consistent or inconsistent with heroin use? Where the officer cannot go is into the medical explanation for the observable symptoms. That she had a reduced heart rate is an area of the officer's report upon which the PPSC is wisely not seeking a ruling. That she had a lower body temperature and lower blood pressure are not within his areas of expertise, straying well beyond his qualifications and into medicine and toxicology.

[76] Paragraph 2 on page 3 is contested. In it the officer addressed habits of heroin users including that they never carry a supply of heroin on them, generally have either drugs or money, but not both, if they have money, they buy heroin, if they have heroin they sell it to buy higher quality heroin, and that their lives revolve around maintaining a daily supply so as not to face withdrawal. Placing a heavy reliance on the minimal standard to be met, I am persuaded the officer can give this evidence. His extensive experience with users allows him to give an opinion on how heroin users generally act with their heroin and money. This is information he would have received in dealing with heroin users for years and does not stray beyond areas in which he is qualified. Subject to the gatekeeping function, the evidence is admissible.

[77] Turning next to the two contested paragraphs contained in an e-mail to Ms. Kerr. In the first paragraph the officer notes that the particular cut of the heroin in this case suggests it is for the purpose of trafficking and that given the proportions of heroin and caffeine, (53, 54 and 44%) one would not smoke it because a lighter would not yield a sufficient heat to achieve the euphoric effects of heroin. Rather, this heroin would be injected.

[78] I am persuaded that the officer is qualified to give the evidence in both aspects of the paragraph. He has extensive experience with heroin users, heroin seized and the purposes for which it was being held, trafficked or imported. That it was cut in a way that an inference of its intended use can be drawn is within his areas of expertise. He would also be qualified to give evidence in regards to the purity of the heroin and the use to which heroin with that purity could be put from his experience with users, augmented to some extent by the courses he has taken and his own research It deals with methods of consumption that are within his qualifications. Subject to the gatekeeping function, the evidence is admissible.

[79] In the second additional paragraph, the fact Ms. Pham had exactly two grams in her possession and had previously used some of the heroin, is regarded by the officer as "suspect." Again, the evidence relates to methods and rates of consumption and is within his qualifications subject to the gatekeeping function.

[80] As regards the gatekeeper function, this is not a jury trial with the attendant risks with expert evidence noted earlier. While properly styled as a Gardiner hearing, in effect, it is a non-jury trial on a charge of possession for the purpose of trafficking with possession admitted. The issue is whether the PPSC has established beyond a reasonable doubt that Ms. Pham possessed the heroin for the purpose of trafficking. The evidence is relevant to the determination of the issue in dispute. In terms of "legal relevance," I am persuaded the evidence is sufficiently probative to justify its admission. It is necessary to enable the trier of fact to determine the issue in dispute. There are significant benefits from the evidence.

[81] What are the costs? The evidence will not be so time-consuming as to overwhelm a non-jury trial. From the proceedings to date, the offender is well-prepared to challenge of the officer’s evidence through cross-examination. Unlike most persons charged with criminal offences in this Court, Ms. Pham has resources to at least get input from other experts and or to call them. At this stage, while reliability issues may arise during the hearing, I am persuaded that the evidence is sufficiently reliable so that the cost-benefit analysis favours the officer be qualified to give the evidence.

Conclusion

[82] In summary, the officer is not qualified to give the evidence noted in the following areas:

• paragraph 3 on page 1 of the report (item 5(b) in para. 4 above );

• the second sentence in paragraph 5 on page 1 (item 5(d) in para. 4 above); and

• paragraph 9 on page 2 and over to page 3 except that the observable symptoms and those that Ms. Pham indicated were consistent with heroin use (item 5(f) of para. 5 above).

Durno J.

Released: July 31, 2013

COURT FILE NO.: CR-11-1056-00
DATE: 20130731
ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
ANH TUYET THI PHAM

REASONS FOR JUDGMENT

Durno J.

Released: July 31, 2013

COURT FILE NO.: CR-11-1056-00
DATE: 20130731

APPENDIX “A”

• CV of Corporal Gray

COURT FILE NO.: CR-11-1056-00
DATE: 20130731

APPENDIX “B”

• Corporal Gray’s Report