R. v. Dixon, 2015 ONSC 8065

CITATION: R. v. Dixon, 2015 ONSC 8065 COURT FILE NO.: CR-15-2858 (Chatham) DATE: 20151229 Delivered Orally: December 29, 2015

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MATTHEW EDWARD GERRARD DIXON Accused

COUNSEL: Paul A. Bailey, for the Crown Gudrun Mueller-Wilm, for the Accused

HEARD: December 15 and 16, 2015

RULING ON ADMISSIBILITY OF EXPERT EVIDENCE

Munroe J.:

[1] The Crown tenders Constable Dan Hines of the Chatham-Kent Police Service as an expert witness in this drug trial to give opinion evidence on the indicia of trafficking generally and of fentanyl particularly. The prosecutor seeks to elicit Cst. Hines’ opinion on how fentanyl is distributed and consumed outside of the law generally and specifically in Chatham-Kent at the time of the seizure in this case.

[2] The accused contests the admissibility of this expert evidence through Cst. Hines. The defence says his evidence is not necessary, he is not properly qualified, and he lacks the essential independence and impartiality.

BACKGROUND

[3] Matthew Edward Gerrard Dixon is accused of one count of possession of a controlled substance, namely fentanyl, a Schedule I drug, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[4] This case started as a simple search warrant. On February 1, 2014, the drug unit of the Chatham-Kent Police Service obtained a drug search warrant for the home of Mr. Dixon. The search warrant was for cocaine and marijuana. Members of the department’s tactical unit, called the CIRT team, were tasked to enter and clear the home for the subsequent search by the drug unit. At approximately 12:30 p.m., the CIRT team entered and secured Mr. Dixon’s house finding no one present. The CIRT team turned the home over to the drug squad for the search. Most of the CIRT team then left to return to headquarters. On the way back to headquarters, members of the CIRT team happened to see Mr. Dixon driving a car registered to him. Mr. Dixon’s car was pulled over and he was arrested. A subsequent search of the center console of Mr. Dixon’s car revealed a plastic bag containing 35 fentanyl patches of various strengths: 8 x 100 micrograms, 5 x 75 micrograms, 12 x 50 micrograms, 5 x 25 micrograms, and 5 x 12 micrograms. Cash and a cell phone were also found and seized. There were no controlled substances found during the search of Mr. Dixon’s home. One patch was sent to Health Canada for testing. The resulting Certificate of Analyst, now Exhibit 4, confirms the patch contained fentanyl.

[5] At or near the end of the Crown’s case, the prosecutor called Cst. Dan Hines and sought to have him accepted as an expert witness. A voir dire ensued. Cst. Hines was called on the voir dire. His 19-page curriculum vitae was introduced as Exhibit C on the voir dire. Cst. Hines has been a police officer with the Chatham-Kent Police Service for over 26 years. He was in the drug unit from 2001 to 2008 and from 2012 to 2014. Currently he is assigned to the asset forfeiture unit but he continues to maintain and investigate drug files. During his time as a police officer, he has been involved in several hundred drug related investigations and has been the affiant on more than 100 drug search warrants. Cst. Hines has been involved in the coordination of dozens of undercover drug purchases involving a number of drugs including fentanyl, even though fentanyl use and trafficking is relatively new. His coordination involvement in these undercover operations included live monitoring of the purchases by means of transmitters. He has interviewed dozens of persons involved in illegal drug trafficking and use. Cst. Hines stays current by reviewing law enforcement publications, by attending conferences, and by consulting with other drug officers. He has never been tendered before as a drug expert witness.

[6] At the time of this case, Cst. Hines was a member of the drug unit on February 1, 2014. He was included on the team tasked to search Mr. Dixon’s house for marijuana and cocaine that day. He was neither the lead investigator nor the affiant on the search warrant. Neither Cst. Hines nor the other members of the team found any controlled substance in the home of Mr. Dixon. He was not involved in or present at the stop or arrest of Mr. Dixon. At the station Cst. Hines took possession of the money as a member of the asset forfeiture unit. It is unclear, but Cst. Hines also may have photographed the drug evidence at the station.

[7] Cst. Hines 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. The officer acknowledged the existence of a “police subculture” but insisted his opinions would be honest and unbiased. He testified he had the strength of character to “go against” his colleagues if necessary. Indeed, when asked about testifying in front of the lead investigator in the case, D/Cst. Jeffrey Teetzel, he said D/Cst. Teetzel would expect him to be truthful.

GOVERNING PRINCIPLES

[8] “[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].

[9] 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.

[10] 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.

[11] A trilogy of cases has set the structure of the inquiry: R. v. Mohan, 1994 CanLII 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].

[12] 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.

[13] 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.

[14] The steps shall be reviewed further.

1. Threshold Admissibility

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

a. Relevance

[16] 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

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

[18] Quoting, with approval, an English decision, R. v. Turner (1974), 60 Crim.App.R. 80, at p.83, 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 CanLII 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

[19] 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

[20] 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

[21] 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.

[22] R. v. Marquard, 1993 CanLII 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

[23] 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.

[24] 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.

[25] 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.

[26] This element is not 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. The assessment is subjective.

[27] 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.

[28] 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

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

2. Discretionary Gatekeeping

[30] 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.

[31] 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

[32] This is a drug possession case which includes an added mental element, namely that the possession was for the purpose of trafficking. If the possession was for another purpose, most commonly for personal use, the added mental element is not satisfied. The areas for which the evidence is sought, including use, packaging, prices, distribution, all are helpful in determining the purpose for the possession. Relevance is obvious.

2. Necessity

[33] The question is whether the proposed expert evidence – on the consumption and sale of fentanyl - is likely to be outside my experience and knowledge. I find such evidence is.

[34] But the nature of the questions to be asked by the prosecutor will be restricted to just that – the consumption and sale of fentanyl. I find those questions outside my experience and knowledge. During discussions with counsel, however, the prosecutor seemed to suggest another question: whether Mr. Dixon possessed this fentanyl for the purpose of trafficking in the circumstances of this case. The officer’s opinion on what was in Mr. Dixon’s mind at the time of possession is not necessary to me once I have all the evidence. The officer’s opinion on Mr. Dixon’s purpose is not beyond my knowledge and experience. This is precisely what finders of fact do – determine the mental element from the circumstances. Two recent cases have made this mens rea distinction very clear. R. v. Singh, 2014 ONCA 791, [2014] O.J. No. 5347, at paras. 35-42 (O.C.A.); R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 49. That type of “ultimate question” is not outside my experience and knowledge and is disallowed.

3. Properly Qualified Expert

[35] With regard to the illegal consumption and sale of fentanyl, I find Cst. Hines qualified. I am satisfied he has the special knowledge, gained through years of experience, necessary to assist the court in understanding generally the illegal consumption and sale of fentanyl.

4. Independent and Impartial Expert

[36] Is Cst. Hines 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”. A concern is his connection to this case. It will be addressed.

[37] Cst. Hines 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 case connection, I must analyze further.

[38] I accept Cst. Hines’ 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 Cst. Hines is able to do so given his connection to the case. This is not an objective assessment – what would a reasonable person think. Rather I must determine whether the connection here results in Cst. Hines being unable to carry out his primary duty to the court. This determination obviously is case-specific.

[39] As with all witnesses, a fact-finder does not have to accept what a witness says. That a proposed expert believes he or she is able to fulfill the duty to the court is not determinative. Rather, the fact-finder, in this case me, must consider the witness’ evidence in light of all the evidence. The fact-finder may accept all, some, or none of the witness’ evidence. In our context, the asserted ability of a proposed expert to fulfill his/her duty to the court to provide fair, objective and non-partisan assistance, the proposed expert’s connection to the case and the substance of the proposed evidence are factors to be considered. The closer the connection and the more impactful the proposed evidence, the higher the level of concern on the issue of ability. An extreme example is perhaps helpful. If a loving mother is tendered as an expert on a pivotal issue in a trial against her son, it would be difficult indeed to accept a claimed ability to be fair, objective and non-partisan.

[40] But 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.”

[41] The burden on this issue is a shifting one. It begins with the party tendering the expert, in this case the Crown. The Crown started 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, Cst. Hines, testified, as he did, that he recognizes and accepts 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’ connection to the prosecution’s case. The connection of Cst. Hines to this case as a member of the same drug unit and as a participant in the execution of the search warrant on Mr. Dixon’s house, satisfied the “realistic concern” burden. Thus, the burden has shifted back to the prosecution again to satisfy this admissibility requirement on a balance of probabilities.

[42] The facts raise concerns about the ability of Cst. Hines 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 subsequently in the court case.

[43] Consideration of the “particular circumstances” should include answers to the following questions. Is the case routine or major? Was the investigation brief or extensive? 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 major? Did the officer participate in the arrest or question the accused post-arrest? Was the officer involved in making the charging decision? Was the officer called by the prosecution at trial as a fact witness?

[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? Does the proposed evidence concern a case-specific opinion? 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 questions 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] This investigation was important, but brief. It started with an unproductive search warrant and ended with an unexpected arrest away from the targeted home and a seizure of an untargeted drug. Cst. Hines’ role in the investigation was minor and inconsequential. The proposed expert was not part of the investigation leading up to the search warrant. He was part of the same drug unit and was called upon to assist in the execution of the search warrant. He was not present or involved in the arrest, search and seizure. He did handle the items seized and took control of the money, all later at the station. In addition, I am mindful of the prosecutor’s candid submission that members of a specified unit in a smaller police department can become like “brothers.” I agree, but I was quite impressed also by the testimony of Cst. Hines expressing his strong commitment to his duty to the court.

[48] Notably, this is not a case like my very recent decision in R. v. Fabos, 2015 ONSC 8013. There the proposed expert was an integral part of a major police investigation which led to the prosecution. Moreover, the tendered witness already had been called as a fact witness in the same area for which expert status was sought. Fabos at para. 47.

[49] I also must consider the substance of the proposed evidence. In this case, it is important but, as reviewed above, will not be on any ultimate mens rea issue. I will not allow Cst. Hines to give his opinion on whether Mr. Dixon possessed the fentanyl for the purpose of trafficking. I am perfectly capable of making that finding without his assistance.

[50] After considering both the particular circumstances of Cst. Hines and the substance of his proposed evidence, I find that the prosecution has met its burden to establish this requirement of independence and impartiality on a balance of probabilities. I find Cst. Hines is able and willing to carry out his primary duty to the court.

5. Discretionary Gatekeeping

[51] I now must weigh everything – relevance, necessity, expert qualifications and independence/impartiality against the risks associated with receipt of expert evidence. I am sitting alone without a jury. On the benefit side, I find that the proposed expert evidence from this witness is important and acknowledge it is from a witness with a connection to the case. On the cost side, however, I find no significant time consumption, no prejudice, no complication, and no confusion. As a consequence, this is not a case to exercise my discretionary gatekeeping function and exclude the proposed expert evidence.

CONCLUSION

[52] For the foregoing reasons, I accept Cst. Dan Hines as an expert witness on the consumption and trafficking in fentanyl.

Original signed by Justice Kirk W. Munroe

Kirk W. Munroe Justice

Released: Oral Decision – December 29, 2015