Court File and Parties
COURT FILE NO.: CR-16-4000422-0000 DATE: 20161007 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JERMAINE JOHNSON Accused
Counsel: Michael MacDonald, for the Crown Douglas Usher, for the Accused
HEARD: October 5, 2016
B.A. ALLEN J.
Reasons for Decision
(Ruling on a voir dire to admit expert evidence)
Qualification of Police Officer as Expert
Basis of Crown’s Request for Expert
[1] The accused, Jermaine Johnson, was charged, among other things, with possession of approximately 1 ⁄ 2 lb. (.23 kg) of marijuana found altogether in bulk in a Ziploc baggie and possession of a prohibited firearm. No drug paraphernalia, debt lists or packaging were found. A total of several thousands of dollars were seized from the four people arrested including $630 (Cdn) from Mr. Johnson.
[2] The Crown called Officer David Forbes to request he be qualified as an expert in the areas of the methods, packaging, and the illicit consumption, pricing and sales of various quantities of marijuana. A voir dire was conducted into Officer Forbes’ qualifications. Officer Forbes’ curriculum vitae was before the court. He also prepared an expert report.
Officer’s Training and Experience
[3] Officer Forbes has been a police officer with the Toronto Police Services for 12 years, from 2004 to the present. For approximately two years, from November 2014 to the present, he has been with the Toronto Police drug squad. In the intervening years, between 2004 and 2014, Officer Forbes was assigned to various units with 54 Division, primary response, traffic, community response and community events.
[4] Officer Forbes has been involved with drug enforcement. He has been the author and affiant on from 80 to 100 search warrants and has authored informations to obtain (ITOs). He has been the officer in charge for case preparation in about 30 cases and the officer in charge in court proceedings on six to ten cases in the last year.
[5] Officer Forbes has experience with street-level drug culture. He testified he has been involved as a surveillance officer on many drug investigations. Officer Forbes estimated he has been involved in at least 100 drug investigations resulting in about 50 arrests. He has been the exhibits officer on search warrants in relation to marijuana and its derivatives on many occasions. He testified that as an undercover officer, on about 30 occasions on drug hand-to-hand drug buys, he has purchased marijuana in amounts from 1 ⁄ 2 to ⅛ of an ounce priced at about $40 for 3 1 ⁄ 2 gr. He also purchased marijuana derivatives like hash and hash oil.
[6] During his time with the drug squad, Officer Forbes gained some experience with persons involved in the drug culture where he dealt with marijuana consumption, packaging and pricing. For instance, he has gathered information from informants when operating as a confidential informant handler. One of the informants provided him information about the distribution of marijuana in the 1 ⁄ 2 lb. range. He testified he had a connection for over one year with one informant in relation to a number of drug cases and briefer relationships with three other informants. Officer Forbes testified he used information he obtained in communications with informants to author ITOs.
[7] Officer Forbes also obtained information about the drug culture from persons after their arrest when they were willing to speak about drugs in circumstances where they themselves were not implicated. He gained information about the day-to-day world of drug trafficking and pricing and how trafficking is carried out. A few of these persons gave him information about the distribution of marijuana in the 1 ⁄ 2 lb. range.
[8] Officer Forbes was questioned about where he obtained pricing information for larger quantities of marijuana. He testified that with the proliferation of marijuana dispensaries and their associated websites there is pricing for various quantities of marijuana on the internet. He testified the dispensary prices for the most part are similar to street-level pricing. He also consulted the Health Canada website for information about the use of marijuana for medical purposes. Officer Forbes also testified he obtained information from other undercover officers and accuseds about the pricing of larger quantities of marijuana in the range of 1 ounce to 1 ⁄ 2 lb.
[9] Officer Forbes testified about courses he has taken as a police officer. Related to the area the Crown seeks him to give evidence are: a course at the Ontario Police College in March 2012 on drug investigations; a course in March 2016 at the Ontario Police College on drug investigation techniques with sections on controlled substances legislation, undercover techniques, appearance as an expert witness, the preparation of expert reports, and drug identification and their effects; and a three-day expert witness symposium offered by the Ontario Association of Police Chiefs in May 2016 on expert witnesses, involving marijuana production, grow yields, street-level trafficking in marijuana and the amounts of daily consumption of marijuana.
[10] Officer Forbes testified he also gave a lecture at the Ontario Police College on drug identification, packaging and street level distribution of various types of drugs, including marijuana.
[11] The Crown relies on Officer Forbes’ training, experience and formal educational courses in proffering him as an expert in the areas of the methods, packaging, illicit consumption, sales and pricing of various quantities of marijuana.
Conclusion
[12] The Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9 at pp. 20-25 provides the framework for determining the admissibility of expert evidence and sets out the following criteria for the evidence: (a) relevance; (b) necessity; (c) the absence of any exclusionary rule; and (d) a properly qualified expert.
[13] A large amount of marijuana was seized in this case so expert evidence on marijuana pricing, sales, distribution, packaging and consumption is relevant to the disposition of this case. Evidence in this area is outside the experience and knowledge of a judge or a jury which I find necessitates the assistance of expert evidence. There is no exclusionary rule that affects the admissibility of the expert evidence sought by the Crown.
[14] I find the fourth criterion has also been met.
[15] The case before this court does not present with a complex set of facts. One Ziploc baggie was seized containing the entire 1 ⁄ 2 lb. of marijuana at issue. There was also a relatively large quantity of money seized and a firearm, items that are frequently associated with drug trafficking.
[16] Moldaver, J. as he then was for the Supreme Court of Canada, commented on the importance of a police officer’s training and experience in a vehicular speeding case involving the determination of whether the officer had reasonable and probable grounds to search the vehicle and seize a large quantity of drugs. Though the factual context differs from the case at hand, I find Moldaver, J.’s observation on an officer’s training and experience is applicable to my determination:
… Police officers need not be trained pharmacologists or toxicologists or medical doctors before they can give evidence on the factors that their training and experience [have] taught them [to] provide reasonable grounds to suspect that someone is engaged in the use of drugs.
Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, "a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police.”
R. v. MacKenzie, 2013 SCC 50 at paras. 57 and 62
[17] Moldaver, J. went on to say that “matters within the realm of police training and experience should not require expert qualifications before their testimony is accepted”.
[18] Officer Forbes has been a police officer for 12 years. He has had experience on the drug squad for two years. He has been involved in dozens of surveillance operations, undercover hand-to-hand drug buys and he has handled several confidential informants and dozens of accuseds in drug cases. As part of his daily routine on the drug squad he has had communications with informants and accuseds about the methods of distribution, packaging, pricing, sales and the consumption of small and larger quantities of marijuana.
[19] Officer Forbes has attended courses and a symposium which offered instruction in areas pertinent to the expert opinion the Crown seeks to adduce. He also gave a lecture himself at the Ontario Police College in the areas for which his expertise is being sought.
[20] On the whole, I am satisfied that Officer Forbes has sufficient skill, training and experience to testify as an expert witness in these proceedings.
Disposition
[21] I grant the application and allow Officer Forbes to testify in the areas of the methods, packaging, illicit consumption, sales and pricing of various quantities of marijuana.