ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F) 2004/12
DATE: 2014-11-18
B E T W E E N:
HER MAJESTY THE QUEEN
Christopher Walsh, for the Crown
- and -
HERBERT GUSTAVO ABUGATTAS-OSORIO
Shane Martinez, for the Respondent
HEARD: October 30, 2014
RULING RE: EXPERT WITNESS
Lemon J.
THE ISSUE
[1] As part of its case, the Crown seeks to admit the opinion evidence of Constable Aaron Sheedy, with respect to the area of “pricing and value of cocaine through Pearson Airport”.
[2] This motion was argued while the jury waited for the next witness. After hearing argument, I ruled that Constable Sheedy could give opinion evidence for written reasons to follow. These are those reasons.
BACKGROUND
[3] Mr. Abugattas-Osorio is charged with importing cocaine into Canada on January 23, 2012.
[4] Constable Sheedy has been employed with the RCMP since June 2002. His curriculum vitae sets out his experience and training relating to narcotics, controlled drugs and restricted drugs. His curriculum vitae and report were entered as exhibits on the voir dire.
[5] In this case, his opinion was based on his own experience along with attendances at courses and seminars. His opinion appeared to rely heavily on ongoing discussions with other officers about the price of cocaine over his 12 years with the RCMP.
LEGAL PRINCIPLES
[6] The most recent discussion of expert evidence comes from R. v. Sekhon, 2014 SCC 15, 367 D.L.R. (4th) 601.
[7] There, Moldaver J. stated, at paras. 43-47:
Requirements for Expert Opinion Evidence
As set out R. v. Mohan, 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.
With respect to the “relevance” criterion, Mohan states that the judge must conduct a cost-benefit analysis to determine “whether its value is worth what it costs”. The cost-benefit analysis requires the judge to balance the probative value of the evidence against its prejudicial effect.
As for the “necessity” criterion, Mohan holds that “[i]f on the proven facts a judge or jury can form their own conclusions without help, then the opinion of [an] expert is unnecessary” (p. 23, quoting Lawton L.J. in R. v. Turner, [1975] 1 Q.B. 834, at p. 841.) The Court went on to note that the concern “inherent in the application of this criterion [is] that experts not be permitted to usurp the functions of the trier of fact” (p. 24).
Given the concerns about the impact expert evidence can have on a trial – including the possibility that experts may usurp the role of the trier of fact – 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. It is not enough to simply consider the Mohan criteria at the outset of the expert’s testimony and make initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert’s testimony, the testimony remains within the proper boundaries of expert evidence.
POSTIONS OF THE PARTIES
[8] The Crown submits that Constable Sheedy’s evidence meets the Mohan requirements.
[9] The defence objects to the admissibility of this evidence for a variety of reasons. While Mr. Martinez agrees that the evidence is relevant, he submits that the evidence may improperly influence the jury beyond its probative value. More importantly, Constable Sheedy has acknowledged that this is an emerging area of expertise and Mr. Martinez says that I should be concerned about the reliability of the figures. Finally, and most importantly, the defence submits that Constable Sheedy is not a properly qualified witness. None of his related experience is set out in his curriculum vitae and he has received no qualification from his own organization. The defence submits that “a sincere belief and interest does not make an expert”.
ANALYSIS
[10] In this case, I was satisfied that this evidence is relevant. The Crown intends to rely upon it to submit to the jury that cocaine valued at between $59,500.00 and $187,000.00 would not be left in the possession of an unknowing courier. The Crown argues that the value of the cocaine is an important consideration for the jury in the circumstances of this case.
[11] In this regard, see recently R. v. Bryan 2013 ONCA 97 at para.11:
In addition to the factors detailed at paragraph 30 of his reasons, the trial judge observed that the quantity and value of the seized drugs made it inconceivable that the drugs would be casually entrusted, by an admitted drug dealer, to someone who did not know what was in the vehicle. We agree.
[12] I am content that the evidence is necessary; the jury would not otherwise know the value of almost 1.7 kilograms of cocaine. The principle defence is one of knowledge. The evidence of value will not be of an inflammatory nature such that its prejudicial value is outweighed by its probative value. On a cost-benefit analysis, Constable Sheedy’s evidence will take little time to provide to the jury.
[13] While, Constable Sheedy agreed in cross-examination that the evidence was from an “emerging area of expertise”, that was a foolish answer for him to give. This is not an area of “novel science” that sometimes bedevils the consideration of expert evidence. Rather, it was simply his opinion of the price of cocaine after 12 years of investigating drugs and drug importation.
[14] The defence does not argue that there is any exclusionary rule at play.
[15] The real issue is whether Constable Sheedy is a properly qualified expert.
[16] Although Constable Sheedy’s curriculum is virtually silent with respect to this area, his evidence on the voir dire was as follows.
[17] He was with the Federal Enforcement Section at Pearson airport from 2002 until 2008. There, he investigated drug importation through Pearson airport. He investigated all types of importation including passengers, cargo, mail and couriers. He processed hundreds of drug exhibits and spoke with about 80 people who were investigated as couriers. He occasionally spoke with some of those about pricing. The majority of that time he spoke with them about cocaine pricing.
[18] Between December 2008 and May 2014, he was also involved in investigations related to cocaine. Over 2010 and 2011, he had two confidential sources who spoke with him about pricing and valuation of cocaine.
[19] He also received information from other police agencies. Drug pricing was a common conversation topic. He was involved with wiretaps relating to buying and selling of cocaine in the greater Toronto area. This was related to all weight levels.
[20] As part of an ongoing investigation, he read text messages and Blackberry messages relating to pricing at both the kilo and ounce level. Sometimes the messages were coded and other times they were very explicit.
[21] He also read other police sources regarding pricing and intelligence reports from the RCMP. He reads the United Nations Office of Drug and Organized Crime statistics with respect to drug pricing and information from the the United States’ CIA.
[22] With all of that background, Constable Sheedy has the necessary “special or peculiar knowledge through study or experience” related to the matters on which he was asked to testify.
[23] Accordingly, I was satisfied that Constable Sheedy could give opinion evidence in the area of pricing and value of cocaine through Pearson Airport.
Lemon J.
Released: November 18, 2014
COURT FILE NO.: CRIMJ(F) 2004/12
DATE: 2014-11-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
HERBERT GUSTAVO ABUGATTAS-OSORIO
EXPERT EVIDENCE RULING
Lemon J.
Released: November 18, 2014