Court File and Parties
COURT FILE NO.: CR15-169-0000 DATE: 20160629
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Elizabeth Barefoot, Federal Crown, for the Applicant Applicant
- and -
David D’Souza Vanessa V. Christie, for the Respondent Respondent
HEARD: June 21 & 22, 2016
REASONS FOR DECISION ON CROWN PRETRIAL APPLICATION:
Expert Evidence
Conlan J.
I. Introduction
The Charges and the History of the Proceedings
[1] David D’Souza stands charged on a thirteen count Indictment, as follows.
Her Majesty the Queen presents that David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region, and elsewhere in the Province, did unlawfully recruit, transport, harbor or exercise control, direction or influence over the movements of D.P., a person under the age of 18 years, for the purpose of exploiting her person, contrary to section 279.011(1) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did unlawfully receive a financial benefit knowing that it results from the commission of an offence under subsection 279.011 Criminal Code of Canada; contrary to section 279.02 of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did live partly on the avails of prostitution of D.P., a person under the age of 18 years, contrary to section 212(2) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did procure D.P. to become a prostitute, contrary to section 212(1)(d) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess child pornography for the purpose of transmission to others, to wit; a computer graphic picture, contrary to section 163.1(3) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did without lawful excuse, point a firearm, to wit; a long-barreled gun at D.P., contrary to section 87 of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did possess a weapon or an imitation of a weapon, for a purpose dangerous to the public peace, contrary to section 88 of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or between the 1st day of February, 2013 and the 29th day of May, 2014, at the City of Owen Sound, Central West Region and elsewhere in the Province, did by speaking directly knowingly utter a threat to D.P., to cause death to D.P., contrary to section 264.1(1) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did have in his possession, a prohibited weapon, to wit; two push daggers, without being the holder of a licence under which he may possess it, contrary to section 91(2) of the Criminal Code of Canada.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit; Cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule II, to wit; Cannabis, contrary to section 4(1) of the Controlled Drugs and Substances Act.
And further, David Joachim D’Souza, on or about the 29th day of May, 2014, at the City of Owen Sound, Central West Region, did possess a substance included in Schedule I, to wit; Methylenedioxyamphetamine, contrary to section 4(1) of the Controlled Drugs and Substances Act.
And further, David Joachim D’Souza, between September 1, 2013 and January 1, 2014, at the City of Owen Sound, Central West Region, did traffic in a substance included in Schedule I, to wit; Cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act.
[2] The accused has elected to be tried in the Superior Court of Justice, by a judge and jury. The trial is scheduled to commence with jury selection in Owen Sound, Ontario on September 19, 2016.
[3] Mr. D’Souza was arrested in late May 2014. In early June 2014, he was released on bail.
[4] The preliminary inquiry in the Ontario Court of Justice was conducted in June 2015, with the accused being committed for trial in July 2015.
The Allegations
[5] It is alleged that a young lady, D.P. (17 years old at the time), worked as a prostitute for several months. She, a victim of the accused’s coercion, would perform sexual acts in exchange for money. She would meet clients in Toronto and at the residence of the accused in Owen Sound. The arrangements would be made by Mr. D’Souza, who would receive some of the revenues paid to D.P.
[6] It is further alleged that Mr. D’Souza once pointed a firearm at the complainant.
[7] In addition, it is alleged that the accused advertised the young lady’s sexual services on a website, showing provocative photos of her partially undressed.
[8] More germane to this Application, upon the arrest of Mr. D’Souza at his residence, the police allegedly seized from that location, under warrant, a rifle and some other weapons, 94 grams of cocaine, MDMA, marihuana, cell phones, and a laptop computer. Another firearm was seized from a residence in Scarborough believed to be that of the accused’s parents.
[9] No charges were laid regarding the firearms.
[10] At the preliminary inquiry, the complainant gave evidence that she was present to observe the accused conduct drug transactions and had been, from time to time, offered cocaine by Mr. D’Souza.
The Crown Pretrial Application
[11] The Federal Crown applies for an advance ruling qualifying Detective Constable Brad Saint (“Saint”) as an “expert in the use of cocaine, pricing of cocaine, the sale and distribution of cocaine, including the modus operandi of such drug traffickers and allowing the receipt of his expert opinion in this case”.
[12] Presumably, the Application, if successful, would be relevant to counts 10 (possession of cocaine for the purpose of trafficking) and 13 (trafficking in cocaine).
[13] The Provincial Crown took no part in the Application.
[14] On several bases, the Application is opposed by the Defence. Alternatively, the Defence submits that the proposed evidence ought to be curtailed to commentary “of a general nature, as opposed to providing any opinion on the specifics of the case at bar” (see paragraph 30 of the Defence’s written argument).
[15] For the reasons that follow, I agree with the Defence’s alternative position.
II. Analysis
The Onus and Standard of Proof
[16] The burden of proof is on the Federal Crown to demonstrate, on a balance of probabilities, that the proposed evidence is admissible.
The Proposed Expert Witness
[17] At the voir dire, Saint testified. He was the only witness called by either side.
[18] Saint’s CV is attached to the material filed by the Federal Crown and was made an exhibit on the voir dire.
[19] He has more than ten years of policing experience – more than five in drug enforcement. He works for the Guelph Police Service, which is not the investigating force in this case. His current rank is Detective Constable.
[20] He has experience as an officer in charge of drug investigations (including cocaine), as an undercover officer handler in drug investigation operations (including cocaine), as an undercover officer in drug investigations (including cocaine), as a handler of confidential informants who are drug users or traffickers (including those involved or previously involved with cocaine), and as an officer involved in executing search warrants in drug cases (including cocaine).
[21] Undercover, he has bought cocaine on five occasions.
[22] He has been involved in more than fifty cocaine investigations.
[23] He has been involved in large police projects that have targeted cocaine trafficking, including for example “Project White” in 2012. Regarding that project, Saint was the undercover officer handler, and Saint reviewed many, many text messages that allegedly included guarded or coded language related to drug trafficking.
[24] He has given annual presentations to new officers with the Guelph Police Service on drug-related topics.
[25] He has taken numerous courses which have included components related to drugs. In May 2014 and again in May 2016, he attended a multi-day expert witness symposium. Those events included discussion of cocaine – usage, pricing and guarded or coded language employed by those involved in its purchase and/or sale.
[26] He is a university graduate, with a Bachelor of Arts Degree.
[27] Although he has been consulted before by Federal prosecutors, Saint has never been qualified as an expert witness in Court, and no attempt has been made to do so. He has testified in Court as a non-expert witness several times.
[28] He has no teaching, training or mentoring experience related to the pricing of cocaine or the use by cocaine traffickers of guarded or coded language.
[29] He has no publications in the proposed areas of expertise. He relied on no publications for the purpose of his will say in this prosecution.
The Proposed Expert Evidence
[30] To do his work in this case, Saint was provided with two DVDs containing Crown Brief materials. He relied, in particular, on text messages that he was told were to/from a telephone number associated with the accused, Certificates of Analyst from Health Canada, police officers’ notes, Exhibit Lists and the items described therein regarding things seized from a residence believed to be that of the accused and from his person upon arrest (including one gram of cocaine), the Crown Brief Synopsis, and photographs of items found at/seized from the residence believed to be that of the accused and, to a limited extent with regard to weapons, photographs taken of items seized from a residence believed to be that of Mr. D’Souza’s parents.
[31] Saint incorrectly assumed that he had been provided with all of the text messages retrieved from the cell phone in question – he was not.
[32] Saint’s will say statement is included in the material filed by the Federal Crown and was made an exhibit on the voir dire. There is no actual report from Saint, and the Crown does not intend to file any written opinion of his at trial.
[33] Saint’s will say is divided into the following topics:
(i) an overview of what cocaine is, its methods of use, its effects, its dosage and price, its packaging, its alleged relationship to the use of scales, and the alleged link between drug trafficking and weapons (these are all general headings that are not case-specific);
(ii) text messages, including Saint’s interpretation of specific text messages in this case: the coded language used and their alleged indicia of drug trafficking;
(iii) an outline of two factors that detract from a finding of drug trafficking in this case: the absence of any money being seized by the police, and the absence of any debt list being seized by the police; and
(iv) a final conclusion – “[i]t is my opinion that the cocaine seized during this investigation is possessed for the purpose of trafficking”.
[34] The will say is the crux of the witness’ proposed evidence at trial, although it was supplemented to some limited degree by his testimony on the voir dire.
[35] At the voir dire, Saint testified that he would now change the final conclusion in his will say to indicate that, in his opinion, the cocaine seized during the investigation is consistent with it having been possessed for the purpose of trafficking.
[36] Saint acknowledged at the voir dire, in cross-examination, that a review of the text messages as a whole, at least those that he picked out for purposes of Exhibit 1 on the voir dire (that document having been created by Saint) and, to an even more limited extent, his will say, puts them in context and makes their meaning more obvious to the reader.
[37] In my view, that concession by Saint is material to the question of whether some of his proposed evidence at trial is actually necessary.
A Summary of the Applicable Legal Principles
[38] Opinion evidence is generally inadmissible; expert opinion may be an exception in certain circumstances. R. v. Abbey (2009), 2009 ONCA 624, 246 C.C.C. (3d) 301 (Ont. C.A.), at paragraph 71.
[39] There are four basic requirements for the admission of expert evidence: (i) it must be relevant, (ii) it must be necessary to assist the trier of fact, (iii) it must not be the subject of any exclusionary rule, and (iv) it must be adduced through a properly qualified expert. R. v. Mohan (1994), 89 C.C.C. (3d) 402 (S.C.C.), at pages 411-415.
[40] To establish logical relevance, one may ask whether the tendered evidence makes the proposition at issue more likely to be than if that tendered evidence was absent. R. v. J. (J.-L.) (2000), 2000 SCC 51, 148 C.C.C. (3d) 487 (S.C.C.), at page 507.
[41] Relevance is determined contextually, and thus, advance rulings may well be re-visited during the trial depending on the strategies employed by both sides and the other evidence adduced. R. v. Clarke (1998), 129 C.C.C. (3d) 1 (Ont. C.A.), at page 14.
[42] In this case, I reserve the right to re-visit this ruling during the trial in the event that it becomes necessary to do so.
[43] Logical relevance is not enough, however, as legal relevance must also be established. This involves an assessment of the probative value versus the prejudicial effect. Put another way, a cost-benefit analysis must be undertaken. The Court may consider the extent to which the proposed expert evidence is grounded on proven facts, the extent to which it supports the inference sought to be made from it, the extent to which it relates to something actually at issue in the case, the reliability of the evidence, its complexity and whether it might distort the fact-finding process, and the extent to which the evidence is controversial. R. v. K.(A.) (1999), 137 C.C.C. (3d) 225 (Ont. C.A.), at paragraphs 77-89.
[44] As can be seen, the Court has an important gatekeeper role. It is not sufficient, in my view, for the Crown to argue, as here, that the proposed expert evidence would be helpful to the jury in terms of pulling it all together. First, helpfulness is not enough. Second, it is not the expert’s job to “pull it all together” – that is for counsel’s addresses and the trial judge’s instructions.
[45] Although reliability, per se, is not listed as one of the factors in Mohan, supra, threshold reliability may affect all of those factors. R. v. F.(D.S.) (1999), 132 C.C.C. (3d) 97 (Ont. C.A.), at page 110.
[46] As for necessity, as indicated above, mere helpfulness is not enough. The expert must provide information likely outside the experience and knowledge of the trier of fact. Mohan, supra, at pages 413-414.
[47] Put another way, the necessity requirement is met where it can be said that lay persons are apt to come to the wrong conclusion without expert assistance, or where access to important information will be lost unless the trier of fact borrows from the expert evidence. R. v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), at paragraphs 46-56.
[48] On whether the proposed expert evidence is the subject of an exclusionary rule, there is some controversy as to how far the evidence can intrude into the ultimate issue to be decided by the trier of fact.
[49] We know for certain that there is no outright rule that proposed expert evidence is inadmissible if it goes to the ultimate issue in the case. R. v. Burns (1994), 89 C.C.C. (3d) 193 (S.C.C.), at page 201; R. v. Bryan, [2003] O.J. No. 1960 (C.A.), at paragraphs 14-18.
[50] We also know for certain that the closer the proposed evidence comes to the ultimate issue to be decided, the stricter the scrutiny of that evidence will generally be. Mohan, supra, at pages 413-414; J.(J.-L.), supra, at paragraph 37.
[51] I agree with Nordheimer J. that it is fair to say that the prohibition against the admission of expert evidence that goes to the ultimate issue to be decided is not, today, absolute (if it ever was), but it may still be an important factor in deciding to exclude, or curtail in its scope, the proposed expert evidence. R. v. Lucas, [2009] O.J. No. 5330 (Sup. Ct.), at paragraph 4.
[52] I also agree, generally, with the following submissions made at paragraphs 27 and 28 (only the first sentence is reproduced below) of the Defence’s written argument on this Application.
- More recently, in Sekhon, a majority of the Supreme Court of Canada emphasized the dangers associated with expert evidence admitted under the Mohan criteria and the need for a court to ensure that it is limited to proper opinion evidence.
R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 at para 46
- Since Sekhon, courts have looked at proffered expert evidence differently and it would appear the evidence is now the subject of greater scrutiny….
[53] I am not sure about the term “greater scrutiny” (emphasis added) as used in paragraph 28, however, I do agree that Courts, particularly since Sekhon, supra, have been careful to not ignore the dangers associated with the admission of expert evidence.
[54] It is not satisfactory for the Court to simply rubber-stamp the proposed expert evidence based on the notion that similar evidence has been admitted in other cases.
[55] As for the need for a properly qualified expert, it is not expected that the proposed expert be the most qualified, whether through experience or knowledge or both. That someone else may be more qualified goes to weight and not to admissibility. What is required is that the proposed expert possess special or peculiar knowledge that goes beyond that of the trier of fact. Mohan, supra, at pages 414-415; R. v. Thomas (2006), 207 C.C.C. (3d) 86 (Ont. Sup. Ct.), at paragraph 18.
[56] In the context of a drug case involving a large quantity of heroin, Durno J. set out the following things to consider in determining whether a proposed expert witness is adequately qualified. R. v. Pham, [2013] O.J. No. 3617 (Sup. Ct.), at paragraph 31.
- the manner in which the witness acquired the special skill and knowledge upon which the application is based;
- the witness' formal education (i.e. degrees or certificates);
- the witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons);
- the witness' membership and participation in professional associations related to his or her proposed evidence;
- whether the witness has attended additional courses or seminars related to the areas of evidence in dispute;
- the witness’ experience in the proposed area(s);
- whether the witness has taught or written in the proposed area(s);
- whether, after achieving a level of expertise, the witness has kept up with the literature in the field;
- whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whether the previous evidence was contested;
- whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and
- whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence.
The Legal Principles Applied to this Case
Relevance
[57] The Defence takes no serious issue with logical relevance – in essence, that is conceded on this Application.
[58] Legal relevance is another matter. Undertaking the cost-benefit analysis and considering the factors outlined in K.(A.), supra, I am of the view that two aspects of Saint’s proposed evidence ought not to be admitted: (i) his penultimate conclusion that the cocaine seized in this case is consistent with possession for the purpose of trafficking, and (ii) his de-coding of specific text messages in this case.
[59] On the former, such an opinion is likely to swallow whole the fact-finding function of the jury, and that is to be discouraged. Abbey, supra, at paragraph 71.
[60] On the latter, if I thought that the proposed line by line analysis of the specific text messages in this case was necessary, then I might have come to a different conclusion. For reasons articulated below, however, I do not think that the said proposed evidence is at all necessary, and thus, given the interconnectedness of these factors, I conclude that the cost of the said proposed evidence (the extra time involved in receiving the evidence at trial and the potential prejudicial effect of having Saint testify on matters very close to the ultimate issue to be decided) outweighs its minimal benefit.
Necessity
[61] Two aspects of Saint’s proposed evidence are clearly unnecessary, in my view.
[62] First, the proposed opinion that the cocaine seized in this case is consistent with possession for the purpose of trafficking. Second, a meticulous examination of the specific texts in this case in an effort to de-code or un-guard their language and show that they are related to drug trafficking.
[63] On the first item, the jury is perfectly capable of determining, on its own, whether that proposition is correct, and if so, whether it rises to proof beyond a reasonable doubt. That is why we have juries. This jury will know the evidence, including what was seized, from where and in what quantities, and it will hear general evidence about cocaine terminology, use, pricing, packaging and so on, and it will have the benefit of addresses from counsel and my final instructions.
[64] No extra spoon-feeding is necessary. And that must be all that the first item is designed to do, from the Crown’s perspective.
[65] On the second item, I agree with the analysis set out by Nordheimer J. in Lucas, supra (which ruling was undisturbed on appeal), applied very recently (post-Sekhon, supra) by Justice K. Campbell in R. v. Farah, 2016 ONSC 2874, [2016] O.J. No. 2295 (Sup. Ct.).
[66] Once the jury hears some generic evidence about, for example, what cocaine is commonly referred to as by drug traffickers, and in what quantities cocaine is typically sold at and for what prices, the jury is perfectly capable, on its own, of determining what to make of the text messages in this case.
[67] For illustrative purposes only, the jury will be able to decide, on its own, whether “snowing” refers to something about cocaine, or whether amounts of money and weights spoken about in the texts refer to cocaine.
[68] The jury simply does not need the benefit of Saint’s line by line de-coding analysis of the specific texts in this case to determine what meaning to give to them. Put another way, the jurors, as lay persons, are not apt to come to a wrong conclusion about what the language used in the specific texts in this case means without that additional aspect of Saint’s proposed evidence – the de-coding of the language in these specific texts.
[69] Let me be very direct. Assume that Saint has already testified that cocaine is often referred to as “snow” by drug traffickers when communicating with potential buyers. Assume further that the jury has the text message that refers to “snowing”. Assume further that the jury has been instructed to not read the texts in isolation but rather in their entire context and with regard to the other evidence adduced at trial, which instruction will likely be given. Why in the world does the jury then need Saint to express an opinion on whether “snowing” refers to cocaine? That is for the jury to decide. And it is capable of doing so on its own, I am confident.
The Absence of any Exclusionary Rule (the Ultimate Issue)
[70] The accused allegedly hit a man over the head with a beer bottle, causing a large gash requiring stitches and a permanent scar. We do not allow a police officer to say “in my opinion, the injury amounts to (or is consistent with) wounding, thus, the accused committed an aggravated assault”. We do not even allow the officer to express an opinion on the first part of the phrase (wounding). Rather, we tell the jury what constitutes an “aggravated” injury, including a definition of wounding, and relate the evidence to that essential element of the offence.
[71] The accused allegedly fondled the buttocks of a female at work. We do not allow a police officer to say “in my opinion, the touching was in (or consistent with) circumstances of a sexual nature, and thus, the accused committed a sexual assault”. We do not even allow the officer to express an opinion on the first part of the phrase (circumstances of a sexual nature). Rather, we tell the jury what “circumstances of a sexual nature” means and relate the evidence to that essential element of the offence.
[72] The accused allegedly raced with another car and crashed into a third vehicle, killing the occupant of the third vehicle. We do not allow a police officer to say “in my opinion, the manner of driving was not just careless but dangerous”. Rather, we explain to the jury the meaning of “dangerousness” and relate the evidence to that essential element of the offence.
[73] Closer to “home” in terms of the subject matter of this case, allegedly, the accused was the front seat passenger in a car being driven by her friend, and police found three grams of heroin in a baby seat in the back. We do not allow a police officer to say “in my opinion, the heroin was so obvious that the accused knew about it and had some control over it, thus, she possessed it”. We do not even allow the officer to express an opinion on the first part of the phrase (knowledge and control). Rather, we tell the jury what “possession” means and relate the evidence to that essential element of the offence.
[74] As another example in the context of narcotics, the accused allegedly harvested marihuana. We do not allow a police officer to say “in my opinion, what was done here constitutes (or is consistent with) cultivation, and hence, production”. Rather, we explain to the jury what it means to “produce” a substance and relate the evidence to that essential element of the offence.
[75] It is no less offensive for the officer to say, in the first example, “whoever did it, in my opinion, s/he wounded the victim”. Or in the final example, “whoever was responsible for cultivating the marihuana plants, s/he produced a substance”.
[76] Here, the Crown wants Saint to be permitted to say that the cocaine seized is consistent with possession for the purpose of trafficking. I will not allow that evidence to be given, and I find it unhelpful to the Crown that Saint will not be naming Mr. D’Souza as the possessor.
[77] The Crown also wants Saint to be permitted to go through specific text messages, as he does in his will say, and de-code or un-guard the language contained therein. I will not allow that evidence to be given.
[78] I want to be clear that I am not making some general pronouncement that expert evidence to the effect that the drugs seized are consistent with possession for the purpose of trafficking should never be allowed in any case. To make that statement would ignore that it has been permitted in many cases, and to make that statement would run afoul of Bryan, supra.
[79] I am also not suggesting that expert evidence on the meaning of specific text messages in a particular case should never be allowed in any drug trafficking prosecution. It depends on the unique facts of each case.
[80] My decision is not based solely on the fact that the proposed evidence of Saint (the cocaine seized is consistent with possession for the purpose of trafficking) goes to the ultimate issue but instead that it does so unnecessarily.
[81] Similarly, my decision to disallow Saint to go through the specific texts in this case and de-code or un-guard their language for the jury is not based solely on the fact that the proposed evidence comes perilously close to the ultimate issue (trafficking cocaine) but instead that it does so unnecessarily.
[82] It is the combination of the necessity factor and the ultimate issue concern that drives my decision.
A Properly Qualified Expert
[83] This is a relatively close-call, even on the portions of Saint’s proposed evidence that I have not determined is inadmissible on other grounds – the penultimate conclusion that the cocaine seized in this case is consistent with possession for the purpose of trafficking, and a de-coding of the specific text messages in this case.
[84] Although I disagree with the Defence that there are concerns about Saint’s impartiality or independence, I do agree with Ms. Christie that several of the factors outlined by Durno J. in Pham, supra run against Saint.
[85] As examples only, his formal education has nothing to do with the proposed areas of expertise; he has no relevant professional qualifications; apart from his policing experience, he has no relevant memberships in professional associations; he has not written in the proposed areas of expertise; and he has never been tendered as an expert witness in the past.
[86] Having recognized those weaknesses, however, on balance, I am satisfied that Saint is a properly qualified expert on the narrow issues that I will be permitting him to testify about, which areas are specified below. On those questions, Saint’s several years of experience in cocaine investigations and, perhaps more important, his multi-faceted involvement in operations (in various capacities that placed him much closer to the offenders than, for example, an officer-in-charge who has had no or very little experience in the undercover arena) combine to give him the kind of peculiar and special knowledge that is required.
III. Conclusion
[87] The Application is allowed, in part.
[88] I indicated above the four sections of Saint’s proposed evidence. For ease of reference, I repeat them here (although these are references to Saint’s will say, his testimony on the voir dire did not add anything material to these categories).
[89] First, a general overview of what cocaine is, its methods of use, its effects, its dosage and price, its packaging, its alleged relationship to the use of scales, and the alleged link between drug trafficking and weapons.
[90] I conclude that Saint is a properly qualified expert to give that proposed evidence, which evidence I find to be relevant, necessary and not subject to any exclusionary rule. Thus, Saint may give that evidence at trial.
[91] I was at first concerned about one aspect of that evidence: the reference to drug trafficking and firearms. I was concerned that the said evidence may unfairly prejudice the accused because it may obscure the fact that Mr. D’Souza has not been charged with any firearms offences as the guns in question were properly stored and the accused had a valid licence to possess them. Having heard Saint readily acknowledge those facts in cross-examination on the voir dire, and go even further to admit that the connection between drug trafficking and firearms normally involves guns that are not properly stored and/or offenders that do not have valid licences, I am not concerned any longer.
[92] Second, Saint’s interpretation of specific text messages in this case: the coded language used and their alleged indicia of drug trafficking.
[93] Saint is not permitted to give that evidence at trial. It does not meet the relevance criterion. It is not necessary. And it is too close to the ultimate issue to be decided by the jury.
[94] No hypotheticals will be permitted, either (as in Lucas, supra). Those would also be unnecessary on the facts of this case.
[95] What is permitted is the Crown asking some general questions of Saint to provide a glossary of sorts. For example, Saint may be asked what else cocaine is commonly referred to as by drug traffickers and buyers (like “snow”, or “blow”, or “white”, for instance). As another example, Saint may be asked what jargon is used by those involved in selling or buying cocaine to describe its quantity (like “gram”, or “ball”, or “half-ball”, for instance).
[96] If there are other general areas that the Crown wants to pursue with Saint at trial, consistent with this ruling, then the Crown would be wise to clear those areas with me in advance, on notice to the Defence. Mr. D’Souza is entitled to know, with as much specificity as possible, the questions that will be asked of Saint.
[97] Third, two other factors that are normally connected to drug trafficking: one or more stashes of money, and one or more debt lists. Saint is permitted to give that evidence at trial. Saint is a properly qualified expert to give that proposed evidence, which evidence I find to be relevant, necessary and not subject to any exclusionary rule.
[98] Fourth and finally, Saint is not permitted to testify that the cocaine seized in this case is consistent with possession for the purpose of trafficking. That proposed evidence is not legally relevant, unnecessary and may be subject to an exclusionary rule regarding the ultimate issue to be decided by the jury.
Conlan J.
Released: June 29, 2016