COURT FILE NO.: 13-5203

DATE: 2014/07/22

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

OLIVIER NAWEJ MULAJ
Respondent

Alexandre Kaufman, for the Public Prosecution Service of Canada

Meaghan Thomas, for the Respondent

HEARD: June 26 and 27, 2014 at Ottawa

EXPERT WITNESS RULING

toscano roccamo J.

[1] On January 23, 2013, Olivier Nawej Mulaj was charged with a number of drug-related offences, including trafficking and possession for the purpose of trafficking in crack cocaine.

[2] In a search incidental to his arrest, 4.3 grams of crack cocaine were found on Mr. Mulaj. A further 1.6 grams were found on his co-accused, Michael Placide, who sold an additional 1.4 grams of crack cocaine to an undercover officer prior to his arrest that same evening.

[3] On June 26, 2014, following a blended voir dire, and in reasons provided orally, I dismissed Mr. Mulaj’s application for the exclusion of the drug-related evidence. Mr. Mulaj’s application was based on allegations of unlawful arrest and unlawful search and seizure, contrary to ss. 8 and 9 of the Canadian Charter of Rights and Freedoms.

[4] The Crown now seeks to qualify Detective Norm Redmond of the Ottawa Police Service’s (OPS) Drug Unit to offer expert opinion on various drug-related matters.

[5] The defence accepts Detective Redmond’s expertise insofar as it relates to the pricing, packaging, distribution and general effects of consumption of crack cocaine. However, the admissibility of his evidence is challenged in relation to matters concerning patterns and rates of consumption, and inferences to be drawn from the absence, on Mr. Mulaj’s person, of any tools for consumption. The defence’s objection is based on its assertion that Detective Redmond is not properly qualified to testify on these matters.

THE DISPUTED EVIDENCE

[6] The Crown has tendered an Expert Evidence Report in relation to Mr. Mulaj and his co-accused, which I attach as Appendix “A” to this ruling. The report summarizes the substance of evidence the Crown proposes to offer at trial through Detective Redmond.

[7] In square brackets, the Crown has identified those parts of the report which the Crown agrees should be deleted, as they offer opinion on the ultimate issue for my determination, namely whether the 4.3 grams of crack cocaine found on Mr. Mulaj were for his own consumption, or whether they were on his person for the purpose of trafficking. In addition, the Crown agrees that Detective Redmond’s opinion is inaccurate insofar as it suggests that the crack cocaine seized from both accused in the total amount of 7.3 grams should be considered to be in the possession of Mr. Mulaj. Finally, the Crown agrees that any inferences which may be drawn from the use of cellphones should only be made as against the co-accused, Mr. Placide.

[8] The disputed evidence of Detective Redmond relates to the part in his report entitled “ADDITIONAL EVIDENCE OR FACTORS THAT HAVE CONTRIBUTED TO MY OPINION.” Specifically, the evidence is found at pages 3-5 of that report, as follows:

Consumption Crack Cocaine:

Based on my experience, training, and discussions with other officers in the field, I find crack cocaine users generally buy crack in small amounts when purchasing the product for personal use. Typically, I expect a user to either purchase, or be in possession of no more than an ‘8-ball’ (approximately 3.5 grams) of crack cocaine at one time. I also find heavy users often resort to selling a portion of their crack cocaine purchases to finance and maintain their costly habit. When searching a heavy user I would expect to find evidence of crack cocaine use, namely items such a homemade or city issued pipe, or a lighter or something similar to facilitate the smoking of the drug.

Based on my training and experience I offer the following:

Heavy user (binge use):

1 gram of Crack Cocaine produces 10 ‘hits’

1 hit every 10 – 30 minutes

35 hits per day

3.5 grams per day

[9] In particular, the defence takes issue with the last part of the above portion of the report, which sets out the consumption patterns of a “heavy or binge user”.

[10] In addition, the defence objects to a portion related to the absence of drug paraphernalia on Mr. Mulaj, as follows:

• Tools for consumption: From my years of experience working patrol in the Vanier and Byward Market area, and having daily contact with users of crack cocaine in and around the homeless shelters, I often found these users to have pipes to consume their drugs. These pipes were either glass pipes issued by the city, or hand crafted rudimentary pipes made of beer cans, medical inhalers etc. In this case the accused persons both have a quantity of crack cocaine on their persons however they have no means to consume it. This leads me to believe that the crack was meant for sale and not consumption.

THE DEFENCE’S POSITION

[11] The defence objects to the admission of this evidence on the basis that it lacks relevance, is unnecessary for my assistance, and amounts to anecdotal evidence not tendered by a properly qualified expert. In addition, the defence argues that recent authority following the Supreme Court of Canada’s decision in R. v. Sekhon, 2014 SCC 15, [2014], 367 D.L.R. (4th) 601, favours exclusion of this kind of evidence on the facts of this case, in that its probative value is outweighed by its prejudicial effect. The evidence also invites propensity reasoning and it shifts the burden of proof away from the Crown.

THE CROWN’S POSITION

[12] The Crown argues that the logical relevance of this kind of evidence has been recognized in other cases, albeit cases decided before Sekhon. On the other hand, the Crown recognizes that findings of guilt in previous cases, based to some extent on the admissibility of this kind of evidence, is irrelevant to the guilt or innocence of the accused in the case at bar. However, the Crown urges me to admit the opinion evidence as indicia of possession for the purposes of trafficking, along with other evidence on which I may decide the ultimate issue. The Crown argues that any frailties found in the evidence can be offset by clearly delineating the scope of Detective Redmond’s evidence, and that these frailties should go to weight, and not admissibility.

[13] With due regard to the assistance offered by Detective Redmond, whose expertise I have recognized in a previous case on the very matters which the defence concedes lie within his expertise, I decline to admit the contested evidence for the reasons which follow. However, I do not wish to be taken as espousing the exclusion of such evidence in all cases. Evidentiary issues must be decided on the particular facts of each case, in accordance with the governing principles.

The Evidence

[14] Detective Redmond’s curriculum vitae is attached as Appendix “B” to this ruling. The CV sets out his formal and related professional education, as well as his experience as a member of the OPS since January of 1998. It also sets out his related case experience, which is noteworthy. In addition, it sets out the publications that Detective Redmond has read, no one of which specifically relates to cocaine or crack cocaine. Finally, the CV reflects that Detective Redmond has been qualified as an expert in four cases, including one heard by me in October 2013. In only one of the four cases, R. v. Lavigne and R. v. Longo, heard by the Ontario Court of Justice on February 27, 2014, one week after the release of the Supreme Court’s decision in Sekhon, did the detective give evidence on “whether the substance found in the accused’s home was possessed for the purpose of trafficking or for personal use.” Although, in that case, both accused were convicted for possession for the purpose, I have not been informed of the facts of that case, whether there is an appeal pending, or whether the nature of the evidence sought to be tendered in the case before me is on “all fours” with that in Lavigne and Longo.

[15] Cross-examination on the substance of Detective Redmond’s CV confirmed that the only education pertinent to the subject of consumption patterns for crack cocaine was received as part of a week-long Expert Witness Symposium he attended in December 2012. He went to another such program in May 2014. He advised, however, that little to no time was spent on the subject of consumption patterns of crack cocaine users, and minimal to no time was spent on the subject of trafficking in crack cocaine. A two-week course he attended in October 2011 on Undercover Operators devoted no part to consumption patterns and mainly focused on trafficking patterns related to a number of drugs. A rudimentary two-week course he attended on Drug Investigation in February 2008 covered about one hour of instruction on patterns of consumption and trafficking in crack cocaine. He received similar exposure on the subject at the Advanced Patrol Training Course he attended in February 2007.

[16] However, as the Supreme Court held in R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at para. 35: “[t]he admissibility of [expert] evidence does not depend upon the means by which that skill was acquired,” so long as the evidence goes beyond the ability and understanding of the trier of fact and is otherwise admissible.

[17] As one would expect, Detective Redmond’s “on the ground” experience is the main source of his knowledge on patterns of consumption of and trafficking in cocaine. This knowledge was acquired primarily through his contact with the homeless or low income users in the area of the Byward Market and in Vanier, as part of the Lowertown Foot Patrol, between August 2003 and 2005. Between October 2005 and November 2007, he had similar, though less frequent, contact with users as part of the OPS Patrol Services. In the past five years, as part of the OPS Drug Unit, he has not had much contact with users. He works at a higher level in undercover surveillance operations. His knowledge is also gained from the cultivation of confidential informants and from the “debriefing” of potential informants at cellblock. He conceded that there is no way to confirm the information that confidential informants provide with respect to subject matters of concern before me.

[18] Detective Redmond admitted that he has not personally, nor in concert with others at the OPS, collected data or carried out any empirical study of consumption patterns. He has not consulted data from other police forces or from addiction experts in arriving at his opinion. He does not possess scientific training on matters related to the consumption of crack cocaine, such as medicine, pharmacology, toxicology or addictions. He has never consulted any peer-reviewed publications on consumption patterns or trafficking patterns related to crack cocaine.

[19] In response to my queries, Detective Redmond candidly agreed that he cannot furnish any evidence with respect to the absolute numbers of users he has had contact with, although these are in the hundreds. He is likewise unable to break these numbers down into percentages of the three main categories of traffickers that he described: street level traffickers, mid-level traffickers or high-level traffickers. Nor can he break down the three kinds of users that he has seen, which he described as the casual, moderate and heavy binge users. His prime contact has been with heavy users.

[20] Detective Redmond is unable to make predictive statements in respect of persons he has met for the first time.

[21] He has not had prior involvement with the investigation leading to Mr. Mulaj’s arrest, or with Mr. Mulaj personally.

GOVERNING PRINCIPLES

[22] I draw from the summary of applicable case law on the subject of expert evidence furnished by the defence.

Legal Principles – Mohan

[23] As set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, the admission of expert evidence depends on the following criteria 1) relevance, 2) necessity in assisting the trier of fact, 3) the absence of any exclusionary rule, and 4) a properly qualified expert.

[24] The “relevance” criterion requires the Court to conduct a cost/benefit analysis, weighing the probative value of the evidence against its prejudicial effect.

[25] As for the “necessity” criterion, if on the proven facts, a judge or jury can form their own conclusions without the help of an expert, then the opinion of an expert is unnecessary. The expert cannot usurp the function of the trier of fact.

[26] Put another way, in order to be necessary, the evidence must provide information which is likely to be outside the experience and knowledge of a judge and jury. The evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical or specialized nature.

[27] Trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges – including those in judge alone trials – have an ongoing duty to ensure that expert evidence remains within its proper scope.

[28] It is not enough to simply consider the Mohan criteria at the outset of the expert’s testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must strive to ensure that, throughout the expert’s testimony, the testimony remains within the proper boundaries of expert evidence. If evidence is admitted, a cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries is essential.

[29] The trial judge must ensure not only that an expert stays within the proper bounds of his or her expertise but also that the content of the evidence itself is properly the subject of expert evidence.

The Police Officer as an Expert Witness - Sekhon

[30] The leading case with regards to expert testimony tendered by a police witness is the Supreme Court’s decision in Sekhon. In Sekhon, the accused had been caught transporting narcotics in his vehicle as he crossed the U.S.-Canada border. At trial, the accused’s defence was that he had not been aware that there were narcotics hidden in his vehicle. The Court considered the appropriateness of expert testimony tendered through a police witness in support of the proposition that the accused had indeed known that the drugs were hidden in the vehicle which he was driving across the border. The court stated that the expert testimony in relation to the accused’s knowledge was not necessary because determining whether Mr. Sekhon knew about the drugs is not beyond the knowledge and expertise of the judge, and it is certainly not a matter that is technical or scientific in nature.

[31] The Court went on to consider the inherent dangers of admitting anecdotal evidence based on a police expert’s past experiences stating that, while such evidence may have superficial attractiveness, it is highly prejudicial to the accused.

[32] The Crown bears the onus of proving the mens rea of an offence beyond a reasonable doubt. To require an accused to call evidence to refute the anecdotal opinions of an expert on the ultimate issue of guilt or innocence would undermine this fundamental tenet of our criminal justice system.

[33] In R. v. Jacobs, 2014 ABCA 172, the Alberta Court of Appeal applied Sekhon and found that the trial judge had erroneously admitted expert evidence tendered by a police witness. Of particular note is the Court’s finding that the police expert’s evidence in relation to consumption patterns of casual drug users had no discernible benefit and was highly prejudicial to the accused.

[34] I would be remiss in failing to note the considerable body of case law canvassed on this subject by Durno J. in R. v. Pham, 2013 ONSC 4903, 300 C.C.C. (3d) 111. In Pham, Durno J. allowed a police officer to testify on consumption patterns of heroin users; the officer’s knowledge came from his “hands on” and specific experience, as well as from training he had acquired, beginning with RCMP basic training in 1992 as reflected in a CV attached to the decision. The police officer had been recognized as an expert in no less than 36 cases before Pham. At paras. 62-79, Durno J. found the evidence pertaining to methods and rates of consumption admissible insofar as it rested on the expert’s own observations of users in his capacity as a police officer; he did not allow the expert to opine as to the physical and pharmacological effects of heroin. It cannot be ignored, however, that the quantity of drugs seized in that case approached 70 grams of heroin, and approximated a 4.5 months’ supply for a heavy user.

[35] At paras. 16 and 29 of Pham, Durno J. listed the cases he considered in addressing the admissibility of the contested evidence before him, without reviewing each in detail.

[36] In addition to those listed by Durno J., I would add others. First, in R. v. Klassen, 2003 MBQB 253, 179 Man. R. (2d) 115, the Court concluded, at para. 26, that “… a lay person cannot become a reliable expert by conducting numerous casual conversations with drug users or traffickers.” In R. v. Petavel, 2006 BCSC 1931, a police officer was qualified to testify as to the methods and quantity of consumption of cocaine, particularly because of his special training in addition to his “on the street” experience. Similarly, in R. v. Murphy, 2010 ONSC 109, a police officer was qualified to give expert evidence on the behaviours associated with drug trafficking specifically related to the storage of drugs and drug-related paraphernalia, and on the connection between loaded handguns and drug traffickers, matters which the Court concluded the officer was well-qualified to address and which lay outside of the experience of the jury. Further, in R. v. Jackman, 2008 ABPC 213, 452 A.R. 164, at para. 11, the Court permitted a police officer to provide opinion evidence pertaining to the habits of drug users, including the observation that cocaine users never possessed more cocaine than they can use in any one “run”, and that needles in the apartment were indicative of intravenous drug use, an observation which I would conclude requires no particular expertise beyond that of the trier of fact. Finally, in R. v. Bryan (2003), 2003 24337 (ON CA), 175 C.C.C. (3d) 285 (Ont. C.A.), the Court upheld the decision of the trial judge allowing a police officer to give evidence in generic terms about the indicia that point to a possession of cocaine for the purpose of trafficking as opposed to for personal use; however, the Court also noted that the accused had raised no challenge as to admissibility before the trial judge.

[37] The varying results in the case law pertaining to the admissibility of the kind of evidence that the Crown seeks to admit in the case before me, are noteworthy. However, I agree with the explanation offered by Durno J., at para. 30 of Pham, where he said:

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.

[38] At paras. 56 to 60 of Pham I note that Durno J. permitted the police officer to offer evidence on the behaviours of heroin drug users, while at the same time precluding him from opining about the physical and pharmacological effects of heroin. In doing so, Durno J. considered the Supreme Court’s decision in R. v. Grant, 1982 33 (SCC), [1982] 2 S.C.R. 819, where, in allowing police officers to testify about the ability of drivers to operate a motor vehicle while impaired by alcohol, the Supreme Court drew from the comments of Lord MacDermott L.C.J. in his dissent in Sherrard v. Jacob, as follows:

…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 property understands the relevant facts…the guidance of an expert is unnecessary.

[39] At para. 60 Durno J. went on to find that:

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.

[40] The expert in Pham was not called upon to consider how consumption patterns might vary for unknown users or whether modest quantities of cocaine might reflect indicia of heavy use or trafficking from one person to the next.

[41] The two-step inquiry required of trial judges in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at paras. 74-78, necessarily contemplates differing results on the admissibility of disputed evidence. After the first step in the inquiry, if the evidence meets the Mohan criteria, the trial judge must fulfill a gatekeeper function by undertaking a cost/benefit analysis to determine whether the evidence is sufficiently beneficial to the trial process to warrant its admissibility. To do so, at para. 78-87 the Court in Abbey determined that trial judges must, through the exercise of discretion, weigh competing considerations pertinent to relevance and reliability.

[42] It may be questioned whether the Supreme Court’s reasoning in Sekhon, at paras. 49-50, invites even more stringent gatekeeping, as the Court refused to admit the expert’s opinion with respect to “blind” drug couriers, an opinion based on the expert’s experience as a police officer. Although the Court determined the disputed testimony to be logically relevant, the evidence was held not to be legally relevant as it was insufficiently probative. Specifically, the Court noted that the guilt or innocence of the accused persons whom the expert had encountered in the past was irrelevant to the guilt or innocence of Mr. Sekhon. At para. 50, the majority agreed with the dissent judgment of Newbury J.A. where she pointed out:

Anecdotal evidence of this kind is just that – anecdotal. It does not speak to the particular facts before the Court, but has the superficial attractiveness of seeming to show that the probabilities are very much in the Crown’s favour, and of coming from the mouth of an “expert”. If it can be said to be relevant to the case of a particular accused, it is also highly prejudicial.

[43] Furthermore, at para. 50, the majority also reasoned that admitting this kind of evidence ran contrary to the Crown’s burden of proving the mens rea of an offence beyond a reasonable doubt.

[44] At paras. 58-60 of Jacobs, the Alberta Court of Appeal not only referenced the Supreme Court’s caution in Sekhon at para. 50 against the inherent dangers of anecdotal evidence, but it also observed the additional concern raised early on in R. v. J.-L.J., 2000 SCC 51, [2000] 2 SCR 600, at para. 37; and repeated in Mohan, at para. 24; and in Sekhon, at paras. 45-46; that, the closer the expert opinion comes to rest on an ultimate issue in dispute, the more a trial judge must scrutinize its probative value against its prejudicial effect.

[45] In my opinion, the analysis in Jacobs offers very persuasive direction for the exercise of my discretion in this case.

Application of the Principle

[46] Detective Redmond’s evidence in relation to the consumption patterns in crack cocaine is anecdotal in nature, and largely relates to knowledge which he acquired over two years as part of the Lowertown Foot Patrol core in which he served in nine years ago. The Crown has not satisfied me, given Detective Redmond’s somewhat dated exposure to users, coupled with his lack of related education or consultation with related fields of expertise, that he is qualified to opine on consumption patterns pertinent to the accused in this case, nor on whether such consumption evidence might vary according to the accused’s tolerance, weight or health. In short, I am not satisfied that Detective Redmond’s considerable experience would qualify him to furnish evidence on the disputed subject matters.

[47] My concerns related to qualifications do not end the matter. I am similarly unpersuaded that the evidence sought to be tendered is legally relevant or even necessary.

[48] I am further concerned about Detective Redmond’s evidence given the quantum of cocaine found on the accused at the time of the arrest. The evidence with respect to consumption patterns of other users with whom Detective Redmond has had contact in the past is of relatively low value as indicia from which I should infer whether the accused before me intended to traffick, as opposed to consume, 4.3 grams of crack cocaine. As discussed above, in Pham, where the expert was qualified, a significantly higher amount of cocaine had been discovered. In this case, the relatively smaller amount of cocaine discovered limits the probative value of Detective Redmond’s evidence with respect to whether this amount is an indicia of trafficking. In this regard, I note that Detective Redmond had conceded that maximum consumption rates vary from user to user, and a user’s maximum consumption may even vary over time. To allow an expert to opine on the ultimate issue based on such borderline indicia has a high potential for prejudice.

[49] Given its proximity to the ultimate issue of mens rea for the offence of possession for the purpose of trafficking, I am unpersuaded that Detective Redmond’s evidence is sufficiently probative to meet the necessary threshold for admission.

[50] That said, I see no reason to preclude him from speaking to his actual observations of consumption by users, so long as he does not seek to elevate his observations to suggest any general rule of thumb that would have application from user to user. In my opinion, without more education or support from related fields of expertise, this area of discussion is beyond Detective Redmond’s qualifications. Such evidence would suggest the “superficial attractiveness” that Newbury J.A. is said to have properly rejected in Sekhon, at para 50.

[51] I have also concluded that Detective Redmond’s proposed opinion as to the absence of any tools for consumption found on the person of Mr. Mulaj, offered up as indicia of possession for the purpose of trafficking, is entirely unnecessary and therefore fails to meet at least one of the Mohan criteria. This is the kind of evidence on which I require no expert guidance. It is a matter on which I can draw my own conclusions based on the totality of the evidence. Further, its probative value is of little benefit to the trial process. To afford it easy admission would, in my opinion, be to assist in relieving the Crown of its burden of proof. As such, it fails to survive the Abbey inquiry.

[52] I should add that, although this is not a jury trial that carries with it any risk that the expert will usurp the fact-finding mandate of the trier of fact, I am nevertheless unsatisfied that the proposed evidence on consumption patterns in this case, and the absence of tools for consumption is sufficiently beneficial, legally relevant, or necessary.

[53] Finally, without knowing what additional evidence I might receive in this case, inclusion of this type of evidence might well unduly “tip the balance”, shifting the burden upon the accused to tender evidence, expert or otherwise, to prove his innocence.

CONCLUSION

[54] In summary, Detective Redmond is not qualified to give the evidence noted in the following areas:

• At page 3, under “Consumption Crack Cocaine”; and

• At pages 4-5, under “Tools for Consumption”, and in particular, the last two sentences in that paragraph.

Madam Justice Giovanna Toscano Roccamo

Released: July 22, 2014

COURT FILE NO.: 13-5203
DATE: 2014/07/22

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN
Applicant

– and –

OLIVIER NAWEJ MULAJ
Respondent

EXPERT WITNESS RULING

Toscano Roccamo J.

Released: July 22, 2014