R. v. Jackson, 2015 ONSC 3519

CITATION: R. v. Jackson, 2015 ONSC 3519

COURT FILE NO.: CR-14-90000357-0000

DATE: 20150601

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Kerry Benzakein, for the Crown

- and -

JAIDEN JACKSON

Christopher Murphy, for the Defendant

HEARD: Monday, May 25, 2015,
at Toronto, Ontario

Michael G. Quigley J.

Reasons For Judgment

1Jaiden Jackson was initially charged in the indictment in this case with possession of crack cocaine for the purposes of trafficking and one count of common assault.

2These charges arose on September 20, 2013, when Mr. Jackson was arrested in a Walmart store located at the Scarborough Town Center. He was charged with theft, though that charge is not before this Court. However, in a search incident to arrest conducted by Walmart security officers, a number of items were found in his possession. It is agreed by the Crown and counsel for the defence that these items included 1.8 g of marijuana, 15.43 g of crack cocaine, two cell phones, $153 in Canadian currency, a package of gum, identification cards, lip balm, and two sets of keys.

3The Crown advised at the commencement of the trial that the assault charge would be withdrawn. Mr. Jackson then re-elected to trial by judge alone. On the basis of those facts, and having re-elected and been arraigned on the charge of possession of cocaine for the purposes of trafficking, he pleaded not guilty to that charge, but guilty to the lesser but included offence of possession of crack cocaine. The agreed facts were read into the record. Having heard those facts and inquired into the matter, I accepted Mr. Jackson's plea to the lesser but included offence of possession of crack cocaine as voluntary. The question was whether the Crown could prove the greater offence.

4Thus, there was only one issue in this trial. The only element that remained to be proven by the Crown in respect of the charge that Mr. Jackson possessed cocaine for the purposes of trafficking was whether his possession was for the purposes of trafficking.

5Crown counsel offered the evidence of Detective Constable Tiffany Castell in support of its position that “possession for the purpose” had been made out. She was to be the only witness to testify on a voir dire to have her and her testimony accepted as expert, testimony that counsel agreed would apply for the purposes of trial as well.

6As Doherty J.A. observed, at para. 75 of R. v. Abbey,¹ the four controlling criteria relative to the admissibility of expert opinion evidence as identified in R. v. Mohan² have achieved an almost canonical status in the law of evidence. No judgment on the topic seems to be complete without reference to them. The criteria are (i) relevance, (ii) the necessity of the evidence to assist the trier of fact, (iii) the absence of any exclusionary rule relative to the evidence, and finally, (iv) a properly qualified expert. The proposed opinion of the expert must be logically relevant to a material issue that is before the court.

7However, Doherty J.A. also distinguished between legal and logical relevance. The expert evidence must be logically relevant to a fact in issue. If so, the court must determine legal relevance. Legal relevance refers to probative value, and the necessity that the evidence sought to be introduced be sufficiently probative to justify its admission. The distinction between logical and legal relevance does not alter the admissibility criteria established in Mohan, nor does it affect the underlying principles governing the admissibility inquiry. As Justice Doherty stated at para. 85 of Abbey:

I separate logical from legal relevance simply to provide an approach which focuses first on the essential prerequisites to admissibility and second, on all of the factors relevant to the exercise of the trial judge’s discretion in determining whether evidence that meets those preconditions should be received.

8In this case, it was proposed that the expert proffered by the Crown would provide testimony based upon her experience for some three years and 2 months as an undercover police officer on the Toronto drug squad relative to quantities of drugs possessed by individuals, and whether particular quantities were likely possessed for personal consumption or use, or rather for the purposes of trafficking. It was the Crown’s position that the evidence to be provided by the police officer would provide the evidential foundation upon which I would be asked to conclude beyond a reasonable doubt that the purpose for the possession of 15.34 g of crack cocaine by this accused was to traffic in it, rather than for his personal use and consumption.

9D.C Castell is a member of the Toronto Police Services who has acquired extensive experience and training in the drug culture and operated as an undercover member of the drug squad for TPS for over three years.

10Constable Castell was offered as an expert based upon her street-level experience, combined with enhanced and specialized knowledge that she has gleaned from the five or six courses that she has taken as part of her training relative to (i) undercover work, (ii) the preparation of search warrants, and (iii) practices and procedures that need to be followed by drug investigators. She has also attended the advanced undercover officer’s course. She has been recognized and previously testified as an expert before our courts. She has also attended other symposia to enhance her ability to testify as an expert before our courts, including receiving training regarding expert evidence: what expert evidence is, how to prepare a resume of her qualifications as an expert, how to prepare expert reports, and how to testify before the court as an expert.

11In the course of the voir dire, I learned that D.C. Castell had purchased drugs on over 100 instances during her three year and two month assignment as a member of the TPS drug squad, in her capacity as an undercover police investigator. She provided no evidence, however, of ever having sold drugs to a purchaser in a reverse sting operation. Her evidence was that in 70 to 80% of the drug purchases that she engaged in, she would be purchasing smaller to medium quantities of illicit drugs from street-level vendors.

12While D.C. Castell’s credentials are obviously significant, I became concerned in the course of the voir dire regarding the purpose for which her testimony was sought to be introduced at this trial. Plainly, the Crown intended that her testimony provide an evidential foundation, based on her experience in purchasing drugs from street-level vendors, that the purpose of Mr. Jackson’s possession of 15 g must be for trafficking. That is, stated another way, that possessing a quantity of 15 g is inconsistent with personal use, and thus necessarily would lead the court to conclude that the possession of that quantity of cocaine must be for the purposes of trafficking. Such a conclusion was presumably intended to serve as the foundation for the court to be satisfied beyond a reasonable doubt that the “purpose” element of the offense was made out and that a conviction could safely be entered against the accused.

13However, given the absence of other evidence consistent with drug trafficking, and given the fact that there was no search of the accused’s personal residence to find evidence consistent with and supportive of the existence of trafficking, I became concerned as to the evidential value that Crown counsel believed would be satisfied and provided by the expert testimony of D.C. Castell.

14I raised the issue with the parties in the absence of D.C. Castell. At the end of this discussion, on agreement of counsel, I left the court for a period of time to permit the two of them to consult given the issues that I had raised. To reiterate, I expressed concern about the evidentiary value and sufficiency of the evidence that was to be offered by Detective Constable Castell in all of the present circumstances, regardless of her qualifications as an expert or whether she was accepted as such on the tests articulated in Mohan.

15In the result, and with a view towards minimizing unnecessary use of court resources, Crown and defence counsel agreed to follow a procedure consistent with the direction provided by Finlayson J.A. at paras. 31-33 of R. v. Kutynec,³ albeit in a reversed context. Crown counsel provided me with a succinct list of the evidence that she anticipated would be elicited from D.C. Castell if she was to be accepted as an expert and have her evidence accepted in its entirety. She did so on the basis that that evidence, as listed, would in the Crown’s view provide the evidential foundation that would permit me to find that the “purpose” element of the offence of possession for the purposes of trafficking is met to the criminal standard. However, it was then agreed that I would hear and receive submissions from both counsel on that list. After hearing those submissions, if in my view that evidence revealed no basis, or only an equivocal basis, upon which the evidence relative to purpose could give rise to a conviction of possession for the purposes of trafficking, then the inquiry would proceed no further and an acquittal would be entered.

16Crown counsel summarized her best case as follows:

(i) 15.34 g of crack cocaine found in the possession of the defendant was a large amount equivalent to between 125 and 187 individual portions or hits;

(ii) that the wholesale value of that 15.34 g of crack cocaine was between $600 and $800;

(iii) that each hit would be sold for approximately $20;

(iv) that accordingly, if all of those separate hits were to be sold on an individual basis, the 15.34 g of crack cocaine would have a street value after resale of approximately $3,000;

(v) that there was no evidence seized from the defendant or associated with him that indicated personal use by him;

(vi) that there was no indication in the evidence of any methods of distribution of crack cocaine and no observations were made consistent with that. For example, the defendant was not found in possession of baggies or other forms of packaging that could be used for the purposes of packaging individual or multiple hits of crack cocaine that might be sold to street purchasers;

(vii) that individual users of crack cocaine “very seldom purchase beyond the quantity of several hits,” that is, based on the expert’s evidence it would be exceptionally unusual for a street-level purchaser to purchase up to a half ounce of crack cocaine;

(viii) that evidence would be provided in the Health Canada experts certificate that the crack cocaine in question that was in the possession of this defendant had been cut with an agent giving rise to dilution in strength;

(ix) given that the accused was also found in possession of a small quantity of marijuana, D.C. Castell would also have testified that people sometimes ingest crack cocaine by sprinkling small quantities of it in a marijuana cigarette; and finally,

(x) that sometimes a distributor of crack cocaine will not put pieces in individual packaging, but will instead merely chip off of a single piece in the rough quantity sought to be purchased by a purchaser, and not have any debt lists or additional packaging materials in his possession.

17At its core, the Crown’s position was that it is “a very large quantity of crack cocaine,” totaling some 125 “servings,” as she described them. In her submission, that quantity was inconsistent with personal use and could only give rise to the conclusion that the purpose for its possession must have been trafficking. Nonetheless she also acknowledged that the other evidence of personal use versus possession for sale was equivocal. Mr. Jackson was not found to be in possession of any scales, or debt lists, or extensive quantities of money, or a crack pipe. In the Crown’s submission, those absences of evidence do not permit any particular inferences to be drawn, and in the absence of such evidence, the only reasonable inference is that the purpose of the possession must have been trafficking.

18I disagree. Abbey, at paras. 74-79, describes the inquiry that I am required to engage in as I determine whether to admit the expert evidence. However, I am not to receive expert evidence on matters upon which I am capable of reaching conclusions having regard to the totality of the evidence. The reason is simple. If the matter is such that I am capable of reaching a conclusion on the whole of the evidence without the opinion of the expert, then plainly the necessity test is not met, and in addition, the tests of legal and/or logical relevance may also not be met.

19Defence counsel made reference to the decision in R. v. Mulaj⁴ as being directly on point. In that case, in a search incident to arrest, police authorities found 4 g of crack cocaine on the person of the accused. The Crown sought to qualify a police officer to offer an expert opinion on various drug-related matters at the accused’s trial, including, as in this case, possession for the purposes of trafficking in crack cocaine. While defence counsel in that case accepted the officer’s expertise in certain areas, he challenged the admissibility of his evidence relating to patterns and rates of consumption by heavy or binge users and inferences to be drawn from the absence on the accused’s person of any tools that might be used for consumption.

20After questioning whether the officer’s experience in that case was sufficient and satisfactory to enable him to furnish expert evidence on the disputed subject matters that were before the court, Roccamo J. observed that his evidence relative to consumption patterns of other users with whom he happened to have had contact had relatively low evidential value and did not provide a reliable indicator from which the inference could be drawn that the accused intended to traffic as opposed to consume. Further, the officer had conceded that maximum consumption rates of users vary over time and may vary from time to time. As such, in the trial judge’s view, to permit the expert to opine on the ultimate issue based on such borderline criterion had high potential to cause prejudice to the accused. The judge concluded that while the officer could testify about his own experience, derived from his actual observations, he could not elevate those observations to the level of an opinion that would have general application from user to user.

21However, as in this case, there was an absence of other indicators of a trafficking purpose. At paras. 51-53 of Mulaj, Roccamo J. stated as follows:

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.

22One of the problems with the case being presented in this way is that, as defence counsel notes, it raises the prospect of the case being proven without the criminal standard being met and potentially shifting the burden of proof and thereby imposing a tactical burden on the accused to tender evidence, expert or otherwise, to refute the opinion of the Crown “expert.” This is a prospect that cannot be permitted to occur.

23The point is made by examining some of the items in the listing provided by the Crown. In particular, point (viii) states that “individual users of crack cocaine “very seldom purchase beyond the quantity of several hits,” that is, based on the expert’s evidence, it would be exceptionally unusual for a street-level purchaser to purchase up to a half ounce of crack cocaine.” (my emphasis)

24However, the very language of the point indicates that while personal users may purchase such quantities only seldomly, the real and reasonable possibility of users purchasing such quantities remains within the realm of possibility. It remains a reasonable inference. It is a particularly reasonable inference in circumstances where the accused is not in possession of any of the paraphernalia that one would expect to find associated with a person who is trafficking in narcotics, including packaging materials.

25So if the evidence of the expert were to be admitted, the highest evidential case outlined by the Crown indicates that this accused was not in possession of any packaging materials as one would normally expect to see in trafficking cases. I would be left with the “expert” opinion relative to usage, and the low likelihood that I would be in possession of any other information or evidence supportive of a trafficking intent. There would be no additional evidence of trafficking and no additional evidence that would distance this accused from trafficking.

26Defense counsel put forward another case where even more connectors were present, and yet the court was still unable to conclude beyond a reasonable doubt that the purpose of the accused in holding the drugs was to traffic in them. In R. v. Patrick,⁵ Conlan J. was not satisfied beyond a reasonable doubt that the accused was trafficking, even though there was a strong suspicion, based upon his possession of a gym bag containing four ounces of cocaine, eight grams of marijuana, a digital scale, packaging and $3,000.

27In my view, the issue in this case is a simple one. This accused was found in possession of 15.34 g of crack cocaine. The only evidence that the possession of that cocaine was for the purpose of trafficking is proposed to be derived from the expert opinion of the police officer, based upon her experience and perhaps 100 transactions over the course of more than three years, in which she concludes that one would not normally expect to see personal users of crack cocaine in possession of the quantity that was present in this case. That said, it is not an egregious quantity, one which could never possibly be held for personal use. As such, there is more than one reasonable inference that can be drawn from the expert evidence, even if admitted. There are two reasonable inferences that can be drawn, even though one of them may be applicable most of the time.

28In a case of circumstantial evidence like this, where all of the elements of the offence are admitted except the purpose for which the illicit drugs were possessed, and where that element must be proven beyond a reasonable doubt if the accused is the be convicted of that offence, a conviction may be entered only where the inference arising from the evidence is the only reasonable inference that may be drawn. In this case, there is more than one reasonable inference that can be drawn.

29I agree with Crown counsel but it may well be likely or probable that Mr. Jackson possessed that quantity of crack cocaine for the purposes of trafficking in it, but probable or likely guilt is inadequate under our law. The burden is only discharged when the Crown proves beyond a reasonable doubt that the crime has been committed, or in this case, that the particular element in issue has been satisfied to the criminal standard. In my estimation, based upon the Crown’s assessment on the highest evidential value of its case, I cannot be satisfied beyond a reasonable doubt that the purpose of the possession of the crack cocaine was for trafficking. As such, the charge must be dismissed. The accused is found guilty of simple possession of crack cocaine pursuant to his plea at the commencement of this trial.

Michael G. Quigley J.

Footnotes

1. 12009 ONCA 624, 97 O.R. (3d) 330.
2. 21994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36.
3. 3(1992), 1992 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), [1992] O.J. No. 347.
4. 42014 ONSC 4405, [2014] O.J. No. 3500.
5. 52015 ONSC 1498, [2015] O.J. No. 1463.