R. v. Dexter Boyce, 2015 ONSC 4062

COURT FILE NO.: 14-90000142-0000

DATE: 20150625

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Dexter Boyce

BEFORE: Croll J.

COUNSEL: C. Greene, for the Her Majesty the Queen, Respondent

D. Embry, for Dexter Boyce, Applicant

HEARD: June 15, 2015

ENDORSEMENT

[1] Dexter Boyce (the “Applicant”) is charged with Conspiracy to Import a Narcotic and Importation of a Narcotic.

Background

[2] Three travel books were sent via FedEx from Costa Rica to a travel company in Canada. Two of the books had cocaine secreted inside; one was empty. It is alleged that the Applicant was part of a scheme to import this cocaine into Canada and had enlisted a FedEx driver to pick up the package on arrival. However, while en route from Costa Rica to Canada, the two books that allegedly contained cocaine were intercepted by officials in Panama. Those packages were seized and did not continue to Canada. The empty book arrived in Canada where it was intercepted by the Canada Border Services Agency.

[3] In Panama, the white powder in the two books seized was suspected to be cocaine. A drug-detecting canine reacted positively, and the substance was sent to the Panamanian Laboratory of Controlled Substances for analysis. The letterhead of the laboratory report indicates that it operates under the authority of the Republic of Panama, Public Ministry, Institute of Legal Medicine and Forensic Sciences, Under-Directorate of Criminalistics. A field test on the substance was positive for cocaine. Specifically, the Head of the Laboratory, a chemist named Anay Vargas Juzado, ran two non-confirmatory tests and one confirmatory test. Mr. Juzado concluded that the substance was cocaine, with a total weight of 355.86 grams (the “Panamanian Expert Report”).

Issue

[4] This matter is set down for a three week trial commencing October 13, 2015. The Applicant seeks to exclude the Panamanian Expert Report and other supporting Panamanian material that the Crown seeks to rely on at trial. The Applicant submits that the Panamanian Expert Report contains expert opinion evidence and is not admissible pursuant to the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.) (the “MLACMA”). The Applicant further submits that the Panamanian Expert Report does not comply with the requirements set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419 or with the provisions of s. 657.3 of the Criminal Code, R.S.C., 1985 c. C-46. The Applicant and Respondent Crown have agreed to be bound by this ruling regardless of whether or not I am the trial judge.

Analysis

[5] Subsection 36(1) of MLACMA provides as follows:

36. (1) In a proceeding with respect to which Parliament has jurisdiction, a record or a copy of the record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister by a state or entity in accordance with a Canadian request, is not inadmissible in evidence by reason only that a statement contained in the record, copy, affidavit, certificate or other statement is hearsay or a statement of opinion.

[6] The Applicant suggests that expert opinion evidence is not contemplated by the reference to a statement of opinion in s. 36(1). With respect, I am not persuaded by this position. Expert opinion evidence is a category of opinion evidence that is often tendered in a trial. The Applicant has provided no authority to support the exclusion of expert opinion evidence from the plain language of s. 36(1).

[7] That said, s. 36(1) does not provide for automatic admission of any documentation gathered through the MLACMA. As stated by Benotto J., as she then was, in R. v. Armour Pharmaceutical, 2007 82855, [2007] O.J. No. 5846 at para. 22:

The sections are permissive not mandatory. They do not confer automatic admissibility on inadmissible documents. The Act does not diminish but rather expands the discretion of the trial judge. It does nothing to alter her role as gatekeeper in connection with the admissibility of evidence.

[8] The Applicant submits that the evidence of the Panamanian Expert Report must comply with the criteria in Mohan and the Criminal Code. The Applicant cites the special caution required when considering expert evidence and the danger that the trier of fact will “inappropriately defer to the expert’s opinion rather than carefully evaluate it”: White Burgess Langille Inman v. Abotto and Haliburton Co., 2015 SCC 23 at para. 17. The Applicant urges the court to exercise its “gatekeeper” function to exclude the evidence, as described in both Mohan and White Burgess.

[9] In my view, the risks associated with expert opinion evidence highlighted in the case law are greatly reduced where the expert opinion relates to the nature of a substance. In most cases, the opinion is a straightforward question of chemistry. The fact that this type of expert opinion evidence is treated differently than other expert opinion evidence is reflected by the legislative shortcut available for proof of the nature of a substance analyzed pursuant to s. 51 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). When an analysis has been done by an “analyst” as defined by ss. 2(1) and 44(1) of the CDSA, the Crown is able to tender the evidence by way of certificate, without proof of the signature or official character of the person who signed it: s. 51(1) CDSA. An accused must seek leave to cross-examine the analyst: s. 51(2) CDSA. In order to obtain leave, there must be a basis to doubt the accuracy and reliability of the certificate: see e.g. Oliver et al. v. The Queen, 1981 204 (SCC), [1981] 2 S.C.R. 240, 62 C.C.C. (2d) 87.

[10] In this case, the drug testing was performed by Anay Vargas Juzado, who is identified in the report as both a chemist and the Head of the Panamanian Laboratory of Controlled Substances. As stated, two non-confirmatory tests and one confirmatory test were conducted by Mr. Juzado. Rosol Al-Hakim, a Specialist at the Toronto Laboratory of Drug Analysis Service, Health Canada, has advised in a letter dated May 15, 2014 that confirmatory tests provide information on the compound’s molecular structure, and have the capability of identifying a drug or related substance, while eliminating all other substances from consideration. Dr. Al-Hakim advises that the two confirmatory tests used by Health Canada’s Drug Analysis Service are the Gas Chromatography-Mass Spectrometry test and the Infrared Spectrometry test. He goes on to say as follows in his May 15, 2014 letter:

The report issued by the Republic of Panama’s Laboratory of Forensic Controlled Substances describes the use of three tests for the identification of cocaine. Two of the tests (the modified Scott test, and the Microcrystal test) are considered to be of the non-confirmatory variety. The confirmatory test used for the identification of cocaine is stated to be Infrared Spectroscopy. Although DAS does not employ Scott’s colour test or the Microcrystal test as non-confirmatory tests to screen for the presence of cocaine, the use of these methods are recognized by the United Nations Office of Drugs and Crime (UNODC), as well as the Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG).

Since the non-confirmatory and confirmatory tests constitute an internationally accepted procedure, it is my opinion that the testing conducted by the Republic of Panama’s Laboratory of Forensic Controlled Substances is scientifically sound.

[11] In R. v. Davis (1983), 1983 ABCA 15, 4 C.C.C. (3d) 53, 42 A.R. 185 (C.A.), the accused was stopped for erratic driving and a breathalyzer test was conducted. At trial the Crown sought to rely on the certificate evidence as to the accused’s breath sample and the defence sought to cross-examine the qualified technician who conducted the breathalyzer. The provincial court judge refused leave to require the attendance of the qualified technician for the purpose of cross-examination under then section 237(4) of the Criminal Code (R.S.C. 1970, c. C-34). That section provided that “[a]n accused against whom a certificate described in paragraph (1) (d), (e) or (f) is produced may, with leave of the court, require the attendance of the analyst or of the qualified technician, as the case may be, for the purposes of cross-examination.”

[12] The Alberta Court of Appeal upheld the trial judge’s decision not to grant leave and stated as follows at 187-188 (A.R.):

In the exercise of this discretion the trial judge must bear in mind, on the one hand, the considerations of expediency in the prosecution of these social offences which Parliament obviously intended where it enacted provisions for proof of the Crown’s case by certificate evidence. It would be contrary to that Parliamentary intent to require attendance of the technician on unfounded suspicion merely to enable the defence to engage in a broad fishing expedition to which it is normally entitled in cross-examination. The trial judge must also bear in mind on the other hand the right of the accused to make full answer and defence.

Within these limits, leave should not be granted unless there is an indication in the evidence, or in the affidavit, or in the submissions and undertakings of counsel, of a material irregularity in the actual testing procedure followed by the technician in the instance case which if substantiated might provide a legal basis for a reasonable doubt as to the accuracy of any evidentiary statement in the certificate. An irregularity which could not in law affect the result of the case would not warrant leave. It should also be shown in support of the application that the evidence sought is within the knowledge of the technician qua technician in the case.

See also R. v. Howden (1997), 42 O.T.C. 72, [1997] O.J. No. 4727 (Ont. C.J. (Gen. Div.)) at para. 18; Waterloo (Regional Municipality) v. Yan (2004), 2004 32076 (ON CA), 188 C.C.C. (3d) 417, 72 O.R. (3d) 734 (C.A.) at paras. 19-20.

[13] The factual background in this case is clearly different than in Davis. It differs as well from cases where the drugs are tested by an analyst as defined by the CDSA. That said, the reasoning in Davis can be applied by analogy. The drugs were tested by the Head of the Panamanian Laboratory of Controlled Substances. An Expert Report has been submitted. There is nothing in the evidence to suggest any material irregularity in the actual testing procedure followed by the chemist Mr. Juzado, which if substantiated might provide a legal basis for a reasonable doubt as to the accuracy of any evidentiary statement in his opinion.

[14] I am of the view that the convenience and pragmatism reflected in the CDSA provisions that deal with drug testing should also apply to the admission of the Panamanian Expert Report. Given the absence of any evidence as to a material irregularity in the testing procedure, the Panamanian Expert Report should be admitted. Stated differently, there is no basis on the record before me to doubt the accuracy and reliability of the Panamanian Expert Report. There is therefore no reason for it to be excluded.

[15] As indicated, I am not persuaded that the nature of the drug test evidence within the Panamanian Expert Report will lead to the danger described in Mohan and White Burgess: that is, that it will be misused by the triers of fact and distort the fact finding process. Nonetheless, even if the Mohan analysis is applicable, I am satisfied that its four criteria have been satisfied: the evidence in the Panamanian Expert Report is relevant; it is necessary; there is no exclusionary rule; and it is reasonable to infer that as a chemist who is the Head of the Laboratory of Controlled Substances, Mr. Juzado is qualified to opine as he did.

[16] The Applicant also submits that the Panamanian Expert Report does not comply with the requirements of s. 657.3 of the Criminal Code. However, I note that s. 657.3(1) establishes a permissive, rather than mandatory regime:

657.3 (1) In any proceedings, the evidence of a person as an expert may be given by means of a report accompanied by the affidavit or solemn declaration of the person, setting out, in particular, the qualifications of the person as an expert if

(a) the court recognizes that person as an expert; and

(b) the party intending to produce the report in evidence has, before the proceeding, given to the other party a copy of the affidavit or solemn declaration and the report and reasonable notice of the intention to produce it in evidence.

[Emphasis added].

[17] In this case, the expert evidence is not being tendered pursuant to the s. 657.3 framework; rather, it is being tendered under the MLACMA. As such, in my view, the evidence need not conform to the strictures of the s. 657.3 regime.

[18] In any event, s. 3(1) of the MLACMA explicitly provides the following:

3. (1) In the event of any inconsistency between the provisions of this Act and the provisions of another Act of Parliament, other than the provisions of an Act prohibiting the disclosure of information or prohibiting its disclosure except under certain conditions, the provisions of this Act prevail to the extent of the inconsistency. [Emphasis added].

[19] For all these reasons, the Application to exclude the Panamanian Expert Report is dismissed.

Other Panamanian Evidence

[20] There is other Panamanian evidence that the Respondent Crown seeks to admit, in particular:

a. News Report by TION.

b. Affidavit of TION.

c. Ocular inspection required report.

d. Appointment of QUIROZ as Special Agent.

e. Diligence of Ocular Inspection.

f. Chain of Custody.

g. Preliminary Field Test Diligence.

h. Direction to investigate.

i. Request to analyze.

k. Request for dismissal.

[21] I have reviewed each of the documents listed in paragraph 20, which are found at the respective lettered tabs in the Application Record. The Respondent Crown has also summarized the relevance of each document in a chart, which is attached as Appendix A hereto. The bullet points in the chart properly highlight the gist of each document.

[22] As stated in R v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354 at para 69,

The threshold for relevance is a modest one. It is enough that the evidence proffered could reasonably show that the fact sought to be established by its introduction is slightly more probable (or improbable) than the fact would be without the evidence.

I am satisfied that the documents are all relevant as they pertain either to the importation scheme, the fact that the substance found was a narcotic, or that the narcotic was found to be cocaine.

[23] The Application to exclude the other Panamanian material (as listed in paragraph 20 above) is dismissed.

Croll J.

Date: June 25, 2015