ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-2984

DATE: 20151222

Delivered Orally: December 22, 2015

BETWEEN:

HER MAJESTY THE QUEEN

– and –

John Fabos

Accused

Paul Bailey, for the Crown

Frank Miller, for the Accused

HEARD: November 19 and 20, 2015

RULING ON ADMISSIBILITY OF EXPERT EVIDENCE

Munroe J.:

[1] The Crown tenders OPP D/Sgt. Shawn Zivanov as an expert witness in this drug trial to give opinion evidence on street drug slang. More specifically, the prosecutor seeks the answers to the following four opinion questions:

1. Is the term ecstasy a drug slang term?

2. What does it mean?

3. Are you familiar with the circular sign of a connecting thumb and forefinger?

4. What does it mean?

[2] The accused contests the admissibility of this expert evidence through D/Sgt. Zivanov. First, according to the defence, he does not satisfy the independence and impartiality requirement. And second, he is not qualified to provide a link between street slang and the chemical name of the controlled substance charged.

BACKGROUND

[3] John Fabos is accused of one count of possession of property obtained by crime, contrary to section 354(1) of the Criminal Code, R.S.C. 1985, c. C-46, and three counts of trafficking in a controlled substance, namely 3,4-methylylenedioxyamphetamine (MDMA-Ecstasy), a Schedule III drug, contrary to section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The dates alleged on the three trafficking counts are February 26, 2011, March 8, 2011, and March 26, 2011.

[4] This case arose from a broader OPP undercover investigation called Project Verwood. The investigation used a civilian agent named Travis Kennedy to buy various drugs from various individuals. In this case, according to Mr. Kennedy, at least from what I have heard to date, Mr. Kennedy communicated with Mr. Fabos, in a variety of ways, for the purpose of buying pills. This communication was during the months of February and March, 2011. The communication never used the formal name of any chemical found in Schedule III of the Controlled Drugs and Substances Act. According to Mr. Kennedy, his purpose was to buy ecstasy pills although Mr. Fabos never used the word ecstasy. According to Mr. Kennedy, he received, directly or indirectly from Mr. Fabos, the following pills on the following dates:

February 26, 2011 – 10 pills;

March 8, 2011 – 3.5 pills;

March 8, 2011 – 30,000 pills; and

March 26, 2011 – 7 pills.

[5] Samples of these pills were tested and none contained any controlled substance with one exception, the sample from the alleged March 8 delivery of 3.5 pills.[^1] According to the Certificate of Analysis, Exhibit 14, that sample pill contained N-methyl-3-4-methylenedioxyamphetamine (N,a-dimethyl-1,3-benzodioxole-5-ethanamine), a Schedule III controlled substance in 2011.

[6] D/Sgt. Zivanov first was called as a fact witness. D/Sgt Zivanov testified that he now is the supervisor of the drug unit. In 2011 he was a detective constable assigned as co-handler of the agent, Travis Kennedy, in the Project Verwood investigation. In that role, he taught Mr. Kennedy how to behave in the street drug culture both for his own safety and for the benefit of the investigation. This included teaching him drug slang: how to speak on the street. D/Sgt. Zivanov testified he was present, behind the scenes, counselling Mr. Kennedy, during the John Fabos part of this broader investigation. The officer very frequently reviewed the agent’s notes and text messages, searched the agent and his vehicle before and after meetings, and, at times, took possession of the delivered pills including the March 8 delivery of 3.5 pills.

[7] Then, in the middle of D/Sgt. Zivanov’s evidence, the prosecutor sought to have him accepted as an expert witness. A voir dire commenced. D/Sgt. Zivanov was called on the voir dire. His 17 page curriculum vitae was introduced as Exhibit A on the voir dire. The officer testified that he was an investigator for approximately 12 years during which time he was an undercover operator and made over 80 undercover purchases of illegal drugs, including ecstasy. In addition, he has debriefed over 100 informants on the drug subculture. He said he became very familiar with drug slang. Knowledge of drug slang is very important to know as an undercover operator. D/Sgt. Zivanov testified he is aware of his duties per the White Burgess case. He knows that his primary duty is to the court and he is to be independent and non-biased.

[8] On cross-examination, D/Sgt. Zivanov testified he instructed Mr. Kennedy on the meaning and use of the thumb and forefinger hand signal. To him it refers to pills in general not only ecstasy pills. He said he has used hand signals in this county while an undercover operator. He has been involved in approximately ten undercover transactions involving ecstasy. He testified that he was a very active participant in the broader project, including the investigation involving John Fabos. Early on in the investigation he had the opinion that the transactions would involve ecstasy. He was not involved with the drafting of the information but does not recall whether he had any discussions on what charges were to be laid. To date, he has been required to attend four trials on other cases in the same project. He continues to work in the same office with the same officers involved in this case.

GOVERNING PRINCIPLES

[9] “[E]xpert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balance of probabilities. [citations omitted]” R. v. Abbey, 2009 ONCA 624, at para. 71, leave to appeal refused, [2010] S.C.C.A. No. 125 [Abbey].

[10] Before deciding admissibility, the judge must determine the nature and scope of the proposed expert evidence thereby setting its boundaries. Also, where necessary, the judge may prescribe the language in which the expert’s opinion may be proffered so as to minimize harm to the trial process. Abbey, at para. 62.

[11] To be clear, admissibility of expert evidence is not an all or nothing proposition. "The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to frame that opinion [citation omitted].” Abbey, at para. 63.

[12] A trilogy of cases has set the structure of the inquiry: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, at para. 17 [Mohan]; Abbey, at paras. 75-76; and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at paras. 19-24 [White Burgess].

[13] It is a two-step process. At the first step, the party tendering the evidence must establish the threshold requirements of admissibility, namely the four Mohan factors, plus reliability for novel or contested science opinions. These well-known factors are as follows:

relevance;

necessity;

absence of an exclusionary rule;

a properly qualified expert; and

in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science.

White Burgess, at para. 23.

[14] At the second discretionary gatekeeping step, the judge must engage in a balancing exercise - the potential risks of time, prejudice and confusion are weighed against the proposed benefits of the opinion evidence. White Burgess, at para. 24.

[15] The steps shall be reviewed further.

1. Threshold Admissibility

[16] Opinion evidence that does not meet all of the threshold requirements shall be excluded. White Burgess, at para. 23.

a. Relevance

[17] At the threshold stage, relevance refers to logical relevance: see Abbey, at para. 82; and White Burgess, at para. 23. Logical relevance is a requirement that the evidence have the tendency, as a matter of human experience and logic, to make the existence or nonexistence of fact in issue more or less likely: see Abbey, at para. 82.

b. Necessity

[18] The necessity requirement relates to assistance to the trier of fact.

[19] Quoting an English decision, R. v. Turner (1974), 60 Crim.App.R. 80, at p.83, with approval, Dickson J. opined that necessity means the proposed information is likely outside the experience and knowledge of the judge or jury. R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, 68 C.C.C.(2d) 394, at p. 409. The question thus is whether the proposed expert evidence “is likely to be outside the ordinary experience and knowledge of the trier of fact [citations omitted]”: see R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 21 [D.(D.)]. The evidence must be more than merely helpful, but absolute necessity is not required: see D.(D.), at para. 21.

c. Absence of Any Exclusionary Rule

[20] This requirement mandates that the proposed expert evidence does not violate any other exclusionary rule separate from the opinion rule itself. Mohan, at para. 26

d. Properly Qualified Expert

[21] After White Burgess, this element now has two dimensions: 1) the witness must be qualified to give the proposed opinion evidence; and 2) the witness must be able and willing to fulfill his/her duty to the court to provide fair, objective and non-partisan assistance. White Burgess, at para. 53.

(1) properly qualified

[22] The proposed witness must be “shown to have acquired special or peculiar knowledge through study or experience in respect to the matters on which he or she undertakes to testify.” Mohan, at para. 27:

The admissibility of [expert] evidence does not depend upon the means by which that skill was acquired. As long as the court is satisfied that the witness is sufficiently experienced in the subject-matter at issue, the court will not be concerned with whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence.

[23] R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, 85 C.C.C. (3d) 193, at p. 224 (S.C.C.) quoting Sopinka, Lederman and Bryant, The Law of Evidence of Canada (1992), at pp.536-7. Any deficiency in the expertise goes to weight, not admissibility. Marquard, at p. 224.

(2) independence and impartiality

[24] After White Burgess, it now is clear: independence and impartiality are a threshold admissibility requirement. White Burgess, at para. 45. It is to be assessed at the qualified expert portion of the inquiry. White Burgess, at para. 45.

[25] The expert must be fair, objective and non-partisan. White Burgess, at para. 46. The expert must be aware of this primary duty to the court and also be willing and able to carry it out. White Burgess, at para. 46. The ultimate question for the trial court is “whether the expert is able and willing to carry out his or her primary duty to the court.” White Burgess, at para. 49. In making this determination, the trial court must consider both “the particular circumstances of the proposed expert and the substance of the proposed evidence.” White Burgess, at para. 49.

[26] The Supreme Court recognized the realities of expert witness evidence: most proposed experts have some connection or relationship with a party or the litigation. White Burgess, at para. 32. Thus, the mere fact of an interest or connection usually is insufficient alone to disqualify a proposed expert. White Burgess, at para. 49. Rather, whether an expert will be permitted to give evidence despite having an interest or connection “is a matter of fact and degree.” White Burgess, at para. 50. The focus is on “the nature and extent of the interest or connection”, not the mere fact of its existence. White Burgess, at para. 49. The Supreme Court provided four examples that will be of “more concern”: 1) “direct financial interest in the outcome of the litigation”; 2) “very close familial relationship” with one of the parties; 3) the probability of professional liability if the proposed opinion is not accepted; and 4) when the expert “assumes the role of an advocate” for a party. White Burgess, at para. 49.

[27] This element is not to be assessed on an objective basis. “[T]he question is not whether a reasonable observer would think that the expert is not independent.” White Burgess, at para. 50. Apparent bias is not relevant. “The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.” White Burgess, at para. 50.

[28] This new threshold requirement is “not particularly onerous”. White Burgess, at para. 49. Exclusion at this stage likely will be “quite rare” and should only occur in “very clear cases”. White Burgess, at para. 49. Anything less should not lead to exclusion but rather should lead to consideration in the subsequent cost/benefits weighing. White Burgess, at para. 49.

[29] This new addition to the threshold requirements is not intended to result in longer or more complex trials. White Burgess, at para. 47. Once the expert recognizes and accepts this duty, under oath, generally this will be sufficient to satisfy the requirement. White Burgess, at para. 47. If challenged, however, a separate onus-shifting scheme has been established by the Supreme Court. White Burgess, at para. 48. It begins with the traditional: the party tendering the expert has the burden, on a balance of probabilities, to satisfy all the admissibility requirements, including this one. Once the expert testifies that the duty to the court is recognized and accepted, the burden shifts to the opponent to show a “realistic concern” that the expert is unable or unwilling to comply with that duty. If the opponent does so, the standard burden shifts back to the proponent to establish this requirement on a balance of probabilities. Failure to satisfy this burden means the proposed evidence is tainted by a lack of independence or impartiality and thus must be excluded. White Burgess, at para. 48.

e. Reliability in Novel Sciences

[30] This area will not be reviewed here because this case does not concern any novel or contested science.

2. Discretionary Gatekeeping

[31] At this step, after the threshold requirements have been met, the trial judge must weigh the potential risks and benefits to decide whether the potential benefits justify the risks. White Burgess, at para. 24. Everything – relevance, necessity, expert qualifications, absence of bias – again is considered against the risk of dangers associated with expert evidence present in the particular case. White Burgess, at para. 54. The trial judge must decide whether the proposed expert evidence “is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process ….” Abbey, at para. 76.

[32] Determining the benefits requires a consideration of the probative potential of the proposed evidence and the significance of the issue to which it relates. Abbey, at para. 87. The cost side addresses the consumption of time, the risk of overly complicating the proceedings, and the potential for prejudice and confusion. Abbey, at paras. 90-91. Obviously, when the fact finder is a jury, certain risks may be heightened. Not all risks will arise in every case. The trial judge, as the “gatekeeper,” must assess the applicable benefits and risks to the circumstances of the particular case.

PRINCIPLES APPLIED

1. Relevance

[33] This is an undercover drug case involving communications leading to four separate deliveries of pills, only one of which contained any controlled substance. The prosecution is proceeding on the basis that trafficking, by statutory definition, includes an offer to sell or deliver a controlled substance. Section 2 of the Controlled Drugs and Substances Act. The evidence to date reveals that the communications with Mr. Fabos did not include the formal name of any controlled substance. It is clear, therefore, what was communicated, or what was being offered for sale is an important part of this case. Thus, the meaning of drug slang, whether by words or signs, obviously is relevant to the issue of what was being offered.

2. Necessity[^2]

[34] The question is whether the proposed expert evidence – the meaning of drug slang - is likely to be outside my ordinary experience and knowledge. I find such evidence is, especially in this case where there can be little inference based on the product delivered. On three of the four deliveries the product delivered was not a controlled substance. What was meant by the language and signs used is an important issue.

[35] But the nature of the questions sought to be asked by the prosecutor opens more questions which highlight the necessity of an expert witness. The perhaps most simple is the link between the language and signs and ecstasy. Moving onward is whether ecstasy means an illegal drug or controlled substance, because ecstasy is not listed in the statute. Finally, the most difficult linkage without an expert is whether words and signs meaning ecstasy also mean a listed chemical in Schedule III. I do not know the chemical name of the substance referred to as ecstasy. I find that such is outside the ordinary experience and knowledge.

[36] This problem is exacerbated by the lack of clarity in this case. The chemical charged is not listed in Schedule III. The chemical charged is different from the chemical identified in the Certificate of Analyst, Exhibit 14. The chemical charged is different from the C.V. of the proposed expert, Exhibit C, at p.6. None are the same. They are as follows:

Chemical charged - 3,4-methylylenedioxyamphetamine (MDMA-Ecstasy);

Schedule III 1.(5) – 3,4-methylenedioxyamphetamine (a-methyl-1,3-benzodioxole-5-ethanamine);

Certificate of Analyst (Ex.C) - N-methyl-3-4-methylenedioxyamphetamine (N,a-dimethyl-1,3-benzodioxole-5-ethanamine); and

D/Sgt. Zivanov C.V. at p.6 – Methylenedioxymethamphetamine.

Are these all ecstasy? I do not know and require expert assistance on this issue. For a very similar problem see United States of America v. Saad (2004), 2004 9931 (ON CA), 183 C.C.C. (3d) 97, [2004] O.J. No. 1148, at paras. 24-36 (O.CA.), leave to appeal refused, [2004] S.C.C.A. No. 232.

3. Properly Qualified Expert

[37] With regard to drug slang both verbal and non-verbal, I find D/Sgt. Zivanov to be qualified up to a point. I am satisfied he has the special knowledge, gained through years of experience, necessary to assist the court in understanding generally what ecstasy means and the signs and language used on the street to connote ecstasy. What he does not have is the special knowledge linking ecstasy to any particular chemical substance. He does not claim to be trained in pharmacology nor did the prosecution make any effort to qualify him to give such expert evidence.

4. Independent and Impartial Expert

[38] Is D/Sgt. Zivanov able and willing to carry out his primary duty to the court? In making this determination, I must consider “the particular circumstances of the proposed expert” and “the substance of the proposed evidence”. My concern is his connection to this case. His connection is quite substantial. Indeed, he was called as a fact witness.

[39] D/Sgt. Zivanov testified that he is aware of his primary duty to the court and is willing and able to carry it out. Usually this will end the matter. But here, given the substantial connection, I must analyze further.

[40] I accept D/Sgt. Zivanov’s evidence that he is willing to be an independent and impartial expert. Indeed, the defence does not claim the officer was not telling the truth when he so testified. But the inquiry does not end there. The question before me is whether D/Sgt. Zivanov is able to do so given his substantial connection to the case. This is not an objective assessment – what would a reasonable person think. Rather I must determine whether the connection results in D/Sgt. Zivanov being unable to carry out his primary duty to the court.

[41] A connection to a party or to the case alone does not disqualify a proposed expert. Indeed, most proposed experts do have at least some connection, most often employment, to the case or its parties. It is not the existence of the connection but rather its nature and extent. Exclusion at this stage is anticipated to be quite rare and should only occur in “very clear cases.”

[42] The burden is a shifting one. It begins with the party tendering the expert, in this case the Crown. The Crown starts with the burden of proof, on a balance of probabilities, to satisfy all the admissibility requirements, including this one. Once the proposed expert, in this case, D/Sgt. Zivanov, testified, as he did, that he recognized and accepted the duty to the court, the burden shifted to the opponent of the proposed expert evidence, in this case the defence, to show a “realistic concern” that the expert is unable or unwilling to comply with that duty. In this case, I find that the defence has made this showing given the proposed witness’ substantial connection to the prosecution’s case. Thus, the burden has shifted back to the prosecution again to satisfy this admissibility requirement on a balance of probabilities.

[43] I have concerns about the ability of D/Sgt. Zivanov to carry out his primary duty to this court. In making my determination, I must consider both “the particular circumstances of the proposed expert” and “the substance of the proposed evidence.” This is a criminal case and the proposed expert is a police officer. Consideration of the “particular circumstances” of the proposed police officer expert, in this context, should include both the nature of the case as well as the nature of the officer’s involvement in the police investigation and then in the court case. Regarding the nature of the case, these types of questions should be asked. Is the case minor or routine? Is the case significant or major? Was the investigation brief or extended? Regarding the officer’s involvement, these types of questions should be asked. Did the officer have any involvement in the police investigation? Is the officer a member of the same department that conducted the investigation? Is the officer a member of the same internal unit that conducted the investigation? Was the officer’s involvement in the investigation minor, or tangential? Was it active? Was it major? Did the officer play a lead role in the investigation? Did the officer make the arrest or participate in the arrest? Did the officer question or attempt to question the accused post-arrest? Was the officer involved in making the charging decision? Did the officer lay the charge? Is the officer listed as a fact witness for the prosecution? Was the officer called as a fact witness for the prosecution?

[44] Consideration of the substance of the proposed evidence should include answers to the following questions. Does the proposed evidence concern a general review of an area beyond the expertise of the court? Does the proposed evidence concern a particularized issue? Does the proposed evidence concern identification of the accused? Does the proposed evidence concern an ultimate issue? Is the proposed question on a minor or a major point in the trial?

[45] These lists are not intended to be exhaustive but rather to focus me on the nature and degree of the officer’s connection to this case and the substance of his proposed evidence. This issue is very fact driven. There is no per se rule.

[46] The Supreme Court in White Burgess recently provided the framework for this analysis in a civil context. The Court also provided examples of connections of “more concern”. In the criminal context with a proposed police expert, I am of the opinion that the level of concern rises with the significance of the case, with an increased officer involvement in the investigation/case, and with the significance of the proposed evidence. No one factor controls. All must be considered. For me it is obvious, a proposed police expert in a criminal case can reach the “very clear case” level mandating exclusion. But, again, each case is very fact dependent.

[47] I find this is a very clear case. This was a major investigation. It lasted weeks. The proposed expert was an integral part of this investigation. The key witness in this prosecution is the civilian agent. D/Sgt. Zivanov was one of his handlers who trained and monitored the agent virtually on a daily basis. The officer trained the agent on street slang and signs, the very subject for which he is being offered as an expert. The officer already testified largely to corroborate the evidence of the agent. Now he is being offered to explain the meaning of the words and signs used.

[48] I must also consider the substance of the proposed evidence. In this case, it is less than significant and does not address any ultimate issue. This is especially true because I will not allow D/Sgt. Zivanov to give expert evidence on the identity of the chemical substance or substances of ecstasy. That is beyond his expertise. Here the evidence that ecstasy refers to illegal pills, or that the circle made by a thumb and forefinger refers to a pill when pills are subsequently delivered, or that people allegedly dealing in illegal substances are guarded in their language, are necessary evidence but not of great significance.

[49] After considering both the particular circumstances of D/Sgt. Zivanov and the substance of his proposed evidence, I find that the prosecution has not met its burden to establish this requirement on a balance of probabilities. I find that D/Sgt. Zivanov is not able to carry out his primary duty to the court.

5. Discretionary Gatekeeping

[50] Given my finding on the threshold issue, it is unnecessary to address this step.

CONCLUSION

[51] For the foregoing reasons, I reject D/Sgt. Shawn Zivanov as an expert witness on street drug slang in this case. Specifically, D/Sgt. Zivanov is not permitted to give such opinion evidence in this case.

Original signed by Justice Kirk W. Munroe

Kirk W. Munroe
Justice

Released: Oral Decision – December 22, 2015

COURT FILE NO.: CR-13-2984

DATE: 20151222

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

John Fabos

Ruling on Admissibility of expert evidence

Munroe J.

Released: Oral Decision – December 22, 2015

[^1]: I acknowledge, and do not decide here, the outstanding continuity issue.

[^2]: The Crown also argues that the proposed evidence is admissible through D/Sgt. Zivanov without being qualified as an expert. He points to his extensive experience, including as an undercover officer, and cites Abbey, at paras. 157-158. I reject this position. The circumstances are quite different. In Abbey the persons permitted to give evidence were gang members themselves who were part of that particular gang culture. Such is not the case here. D/Sgt. Zivanov’s knowledge comes from learning as an outsider not from being a drug dealer.