CITATION: R. v. Bulhosen, 2016 ONSC 7644
COURT FILE NO.: 4355/15
DATE: 2016/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
L. Mathews/ R. McGuirl/ A. Pashuk/I. Bell, for the Prosecution
Prosecution/Applicant
- and -
Raul Bulhosen, Borja Vilalta-Castellanos, Vito Buffone, Jeffrey Kompon, Marco Cipollone, John Edward Oliver and Dean Brennan
Accused/Respondents
R. Rusonik, for Bulhosen, S. Foda, for Vilalta-Castellanos D. Brown, for Buffone W. Thompson, for Kompon D. Smith/J. Griffiths/N. Jackson, for Cipollone S. Reid/T. Kent, for Oliver H. Tse, for Brennan
HEARD: November 15, 21 & 22, 2016
The Honourable Justice J. R. Henderson
PRE-TRIAL MOTION
EXPERTS’ QUALIFICATIONS
INTRODUCTION
[1] In this pretrial motion, the Crown requests rulings as to the admissibility of evidence from three proposed expert witnesses, namely, David Waterfield (“Waterfield”), Thai Truong (“Truong”), and Byron Boston (“Boston”).
THE PROPOSED EXPERT EVIDENCE
[2] The Crown requests that Waterfield be qualified as an expert in proceeds of crime and money laundering, including the hallmarks of money laundering and methods of money laundering.
[3] Truong is tendered as an expert in cocaine trafficking, including the sources, use, distribution, pricing and packaging of cocaine, proceeds of crime, drug paraphernalia, and coded language.
[4] Boston is tendered as an expert in Mexican drug trafficking organizations, also known as Mexican drug cartels, including their history, structure, hierarchy, geography, distribution networks, and operations. He is also tendered as an expert in the money laundering activities and the coded language used by Mexican drug cartels.
BACKGROUND
[5] The seven accused in the present case are charged on a 10-count Indictment that includes charges of possession of cocaine for the purpose of trafficking, trafficking in cocaine, conspiracy to import and possess cocaine for the purpose of trafficking, committing offences in association with a criminal organization, money laundering, and possession of proceeds of crime.
[6] It is alleged that the accused imported cocaine from Mexico by concealing the cocaine in granite boulders and then extracting the cocaine from the boulders at a warehouse in Port Colborne, Ontario. It is alleged that once the cocaine was extracted, the accused distributed the cocaine and laundered the proceeds of sale.
[7] These charges were laid after a three-year investigation, known as Project Roadmaster, that involved multiple police agencies, including police agencies in the USA. The Crown’s case will be based upon the fruits of authorized intercepted communications, tracking orders, and production orders, the testimony of multiple surveillance officers, and the contents of approximately 100 seized electronic devices, as well as other items that were seized in the execution of search warrants, including documentary records, quantities of cocaine, and substantial amounts of cash.
THE LAW REGARDING EXPERT EVIDENCE
[8] In the case of R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (SCC), at para. 17, Sopinka J. stated that the admissibility of expert evidence depends upon the application of four criteria, namely: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert.
[9] In the case of R. v. Abbey (2009), 2009 ONCA 624, 246 C.C.C. (3d) 301 (OCA), at para. 76, Doherty J. refined the Mohan test, by suggesting a two-step process for determining admissibility. At the first step, the party tendering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. This is a reference to the four Mohan criteria.
[10] At the second step, the judge must weigh the probative value of the evidence against its prejudicial effect to determine whether the admissibility of the evidence is warranted. This has been described as the gatekeeper function.
[11] This two-step process for determining admissibility of expert evidence has been adopted with minor adjustments by the Supreme Court of Canada in the case of White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 22 to 24.
GENERAL OPINION EVIDENCE
[12] With respect to all three of these experts, the defence submits that the proposed evidence is not relevant because it is merely general opinion evidence that does not specifically deal with the evidence in the Crown's case against these accused. I note that none of these three proposed experts worked on Project Roadmaster and they have no knowledge of the factual allegations in the present case. Thus, the proposed evidence of these three experts is limited to general concepts within their respective fields.
[13] In my view, the fact that the opinion evidence is general in nature is not fatal, and may be preferable in some instances. There are at least two types of expert evidence: an expert may review the evidence in a case and offer an opinion as to the factual inferences that may be drawn by the triers of fact, or an expert may provide a general opinion on relevant topics that may be used by the triers of fact to draw their own inferences. Both types are admissible, provided the expert evidence passes the legal test for admissibility.
[14] In the present case, the proposed opinion evidence as to money laundering is a good example of general expert evidence that meets the basic criteria for admissibility. Money laundering is not a concept that is well understood by the average citizen, and there are five counts of money laundering in this case. Thus, general opinion evidence with respect to the methods, hallmarks, and concepts of money laundering is relevant to the charges before the court. This type of evidence will provide the jurors with a basic understanding of money laundering that the jurors can use to analyze all of the evidence that is adduced by the Crown and make appropriate factual inferences.
[15] General opinion evidence has been endorsed as admissible in past decisions. In R. v. Trac, 2013 ONCA 246, the Court approved the use of general opinion evidence as to the indicia associated with proceeds of crime. In R. v. Shafia, 2016 ONCA 812, the Court approved the use of general opinion evidence as to cultural mores within particular communities, stating at para. 241 that such evidence, “…may be relevant to and thus admissible on a variety of issues including to provide context for and to facilitate appreciation of other evidence.” In R. v. Farah, 2016 ONSC 2874, Campbell J. admitted general evidence as to coded drug language, with a proviso that the expert was not to testify as to his contextual interpretation of any of the intercepted conversations.
[16] Moreover, the court must also be cognizant of the fact that opinion evidence that is too specific may be inadmissible because it may go to the ultimate issue before the court. Therefore, general opinion evidence may be preferable in some cases. For example, in Abbey, at paras. 98-103, Doherty J. found that general evidence as to the possible meanings of a teardrop tattoo within the urban street gang community was admissible, whereas specific opinion evidence as to why this accused had a teardrop tattoo would not be admissible.
[17] In summary, I find no merit in the suggestion that any of the proposed expert opinion in this motion should be excluded because it is general in nature.
ANALYSIS REGARDING WATERFIELD’S EVIDENCE
[18] Waterfield is a detective constable with York Regional Police. He has been a police officer since 1986, and his early experience as a police officer was with Drugs and Vice Units. Since 2008 he has been seconded to the OPP Asset Forfeiture Unit. His main experience in the past eight years has been with respect to money laundering and proceeds of crime.
[19] There is no real issue about the third and fourth Mohan factors with respect to Waterfield’s evidence. Waterfield has been involved in hundreds of investigations of money laundering and proceeds of crime. He has given lectures to police agencies and to the Ontario Police College on these topics, and I am satisfied that he has remained current by reading the literature and by attending training seminars. Further, there is no evidentiary exclusionary rule.
[20] At the first step of the analysis, the dispute about the admissibility of Waterfield’s evidence relates to the relevance and necessity factors. Regarding necessity, the defence submits that many of the opinions offered by Waterfield are not necessary as they are within the knowledge and experience of the average person, such as Waterfield’s opinion that most illegal transactions are conducted in cash, or that most people would deposit large amounts of cash in a bank.
[21] Although I accept the defence submission that Waterfield's proposed evidence includes statements of common knowledge, I find that in his report Waterfield relates these well-known concepts to money laundering and proceeds of crime issues. In my view, it is the relationship between these common concepts and methods of money laundering, for example, that is the essence of Waterfield's opinions. Therefore, even though many of Waterfield’s opinions involve well-known concepts, these common concepts are intertwined with Waterfield’s overall opinions and should not be redacted out of his evidence.
[22] Further, as I previously stated, money laundering is not a concept that is well understood by the average person. Thus, in the absence of expert evidence on the topic, the accounting records that were seized from the accused may not be meaningful to the jurors. If the jurors had Waterfield’s evidence with respect to general concepts of money laundering and proceeds of crime, then the jurors would be better equipped to assess these documents as they are introduced. The same analysis applies to the jurors’ use of Waterfield’s evidence to assess some of the testimony of surveillance officers who will describe certain conduct of the accused. In that sense, general opinion evidence regarding money laundering is necessary to assist the triers of fact.
[23] Regarding relevance, I agree with the defence submission that Waterfield's discussion of methods of money laundering that are not alleged by the Crown in this case are entirely irrelevant. In his report, Waterfield discusses, in a very general manner, a wide variety of money laundering methods. I find that any evidence regarding methods of money laundering that are not alleged against these accused could mislead the jurors into believing that these accused must have done something illegal even though the Crown will not be adducing evidence of that type of illegal conduct. At the very least, this evidence would be confusing for the jurors.
[24] In this case, the Crown alleges that these accused engaged in three methods of money laundering, namely cash bundling, bulk cash smuggling, and trade-based money laundering. Accordingly, I find that Waterfield's evidence with respect to these three methods is admissible, but those portions of Waterfield's evidence with respect to other methods of money laundering are inadmissible.
[25] Furthermore, in Waterfield's report he makes reference to a Mexican drug cartel that was suspected of money laundering, and he describes in detail the methods of money laundering that were used by that cartel. This opinion evidence is clearly irrelevant and highly prejudicial. It is inadmissible.
[26] Still further, in his report Waterfield references a black-market peso exchange. Again, this opinion evidence is irrelevant and highly prejudicial. It is also inadmissible.
[27] In summary, with the limitations that I have just discussed, I find that Waterfield's proposed opinion evidence meets the four Mohan criteria and passes the first step of the analysis.
[28] Regarding the second step of the analysis, I find that the probative value is not at the high end of the scale because Waterfield's opinion evidence is general in nature and because it deals with some well-known concepts. However, I find that the jurors will benefit from Waterfield's evidence as it will assist them in understanding some of the proposed documentary evidence, as well as the evidence from the surveillance officers. Therefore, I assess the probative value at a modest level.
[29] As to prejudice, because of the fact that Waterfield’s evidence is general in nature, the prejudicial effect of the evidence is limited. Moreover, any prejudicial effect is further limited as Waterfield will not be permitted to testify with respect to activities that the Crown is not alleging in this case. Consequently, I find that the prejudicial effect of this evidence is negligible. Thus, on a cost-benefit analysis, I find that Waterfield's opinion evidence, with the limitations I have set out herein, is admissible.
[30] For these reasons, I find that the opinions expressed in paragraphs 30-31, 34-41, 45-50, and 56-60 of Waterfield's report are inadmissible. The opinion evidence in all other portions of Waterfield's report is admissible.
ANALYSIS REGARDING TRUONG’S EVIDENCE
[31] Truong is a detective sergeant with York Regional Police. He has been a police officer since 2002 and he has worked regularly as an undercover drug investigator since 2003. He has been in the Drugs and Vice Unit since 2005 and currently works in a supervisory capacity in the Organized Crime Bureau.
[32] I accept that Truong has investigated approximately 150 cocaine cases, approximately 40 of them as an undercover officer. Approximately 10 of those investigations involved cocaine trafficking at the kilogram level. He remains current regarding drug investigations, and he lectures on drug investigation techniques at the Ontario Police College.
[33] Again, there is no real issue about the third and fourth Mohan factors with respect to Truong’s evidence. He is an experienced police officer who has knowledge of drug trafficking operations as a result of his work in an undercover and a supervisory capacity. Further, there is no evidentiary exclusionary rule that applies.
[34] At the first step of the analysis, I find that the proposed evidence meets the necessity criterion as the world of drug traffickers is one that is not within the knowledge and experience of most jurors. This is particularly true with respect to Truong's proposed evidence on the source, use, distribution, pricing, and packaging of cocaine, and on the concept of coded language.
[35] Regarding relevance, defence counsel do not contest many aspects of Truong's proposed evidence, but the defence disputes the admissibility of Truong's evidence regarding the pricing of cocaine and regarding the use of multiple cell phones by drug dealers.
[36] With respect to pricing, Truong proposes to give opinion evidence as to the prices ranges for the purchase of one kilogram of cocaine. His opinion is divided into three categories, namely, price ranges for purchases made outside of the USA; for purchases made in the USA where the buyer imports the cocaine into Canada; and for purchases made in the GTA, Hamilton, and Niagara Falls.
[37] The defence submits that this evidence does not meet the relevance criterion because the categories used by Truong do not correlate to the factual allegations in the present case, because the database used by Truong to support his opinion is limited, and because Truong did not use any recognized methodology to come to his conclusions.
[38] In my view, the issues with respect to the limited database and the methodology are issues that go to the reliability of the evidence, and therefore these are matters that are properly considered at the second step of the analysis. I rely on the comments of Doherty J. at para. 84 of the Abbey decision, as follows,
"When I speak of relevance as one of the preconditions to admissibility, I refer to logical relevance. I think the evaluation of the probative value of the evidence mandated by the broader concept of legal relevance is best reserved for the ‘gatekeeper’ phase of the admissibility analysis. Evidence that is relevant in the sense that it is logically relevant to a fact in issue survives to the ‘gatekeeper’ phase where the probative value can be assessed as part of a holistic consideration of the costs and benefits associated with admitting the evidence."
[39] Therefore, the issue at the first step of the analysis is whether this pricing evidence is logically relevant to the case before the court. While I acknowledge that the Crown’s allegation is that the cocaine was imported from Mexico to Canada through Brazil, and that Truong's pricing categories do not precisely include this alleged transportation route, I find that Truong's pricing evidence will logically assist the jurors.
[40] At trial the Crown will present many accounting records that the Crown will submit are records of purchases and sales of cocaine. In my view, the proposed opinion evidence as to fluctuations in the price of cocaine depending upon the origins and transportation routes will assist the jurors. At a minimum, the jurors will learn that the price of cocaine increases as borders are crossed and the distance from the source increases. Therefore, I accept that the pricing opinions of Truong are logically relevant to this case.
[41] At the second step of the analysis I must consider the probative value of the proposed evidence. When one considers probative value, one must consider reliability. In this case the issues as to the database and the methodology are matters that go to the reliability of the evidence. However, at this stage I am only concerned with threshold reliability; that is, whether the evidence is worthy of being heard by the jurors. The ultimate reliability will be determined by the jurors.
[42] In my view, Truong's proposed pricing opinion evidence meets the test of threshold reliability. The defence is correct in its submission that Truong's personal database is limited, particularly with respect to Truong's experience with one kilogram purchases of cocaine from the USA that are imported into Canada. However, I accept that Truong is generally well-informed about the world of cocaine trafficking. He has personally conducted many cocaine investigations, but during his career he also has received information about other investigations through other police agencies, through his position as a supervisor, and through various intelligence reports. He has testified that this ancillary information has been consistent with his personal experiences.
[43] Further, although I accept that Truong did not employ a scientific methodology to develop his opinion, I find that the proposed opinion is not intended to be a scientific opinion. Drug trafficking is not a regulated industry that is subject to rigorous scrutiny. Drug trafficking does not involve the use of bills of lading or any formal documentation of purchases and sales. Moreover, there are many factors that affect the price of cocaine as between any given seller and purchaser. Thus, it is only possible to provide an opinion on cocaine pricing that is based on anecdotal, not scientific, study.
[44] Overall, I find that Truong's pricing opinion evidence has modest probative value. Further, there is very little prejudice to the accused by the admission of this evidence. Any weaknesses in the evidence can easily be exposed by cross-examination in the presence of the jury. Accordingly, I find that Truong's proposed pricing opinion evidence is admissible.
[45] Regarding the proposed opinion as to multiple cell phones, Truong offers the opinion that drug dealers typically have more than one cell phone. He concedes that some members of the public may have two cell phones, but he states that it is not common for members of the public to possess more than two cell phones.
[46] The defence submits that this opinion evidence about cell phones is highly prejudicial to the accused. The defence submits that there are many members of the public who have legitimate reasons for possessing multiple cell phones, and therefore, jurors should not be tempted to infer that the accused are drug dealers because they possess multiple cell phones.
[47] In my opinion, this issue again is one that engages the second step of the analysis. I accept that as a result of Truong's experience as a drug investigator, Truong can provide an anecdotal opinion that most drug dealers possess multiple cell phones. This evidence will have some probative value with respect to the Crown’s evidence of the alleged use made by these accused of various cell phones and encrypted devices. It is not proof of guilt, but it is probative of the assessment of the conduct of the accused.
[48] Further, I find that there is very little prejudicial effect in this evidence. The use that law-abiding citizens make of cell phones can be explored in cross-examination of Truong. In addition, I find that the jurors will be very capable of understanding any evidence with respect to the use of cell phones.
[49] For all these reasons, I find that Truong is qualified to give opinion evidence in the field of cocaine trafficking, including the sources, use, distribution, pricing and packaging of cocaine, proceeds of crime, drug paraphernalia, and coded language. There are no aspects of his proposed evidence, as set out in his report, that I find to be inadmissible.
ANALYSIS REGARDING BOSTON’S EVIDENCE
[50] Boston is a senior corporal with the Dallas Police Department. He has been a police officer since 1996 except for a short break in 2000-2002. He has had extensive experience as an undercover investigator first with the Alcohol, Tobacco, and Firearms Task Force, then with the Mid-level Narcotics Unit, and then with the Mexican Drug Cartel Task Force, where he worked from 2010 until early 2015.
[51] Boston has been involved in 30-35 investigations into Mexican drug cartels, including four or five long term investigations in which he was the lead or co-lead. He has had several undercover assignments during which he infiltrated Mexican drug cartels. He has testified as an expert witness in the USA 15-20 times, three of which related to his expertise with Mexican drug cartels. He currently runs a private company that provides training to police officers in the USA and Canada regarding drug investigations.
[52] At the first step of the analysis, there is no issue regarding the second, third and fourth Mohan factors. I find that Boston is an exceptional police officer who is well qualified to give opinion evidence about Mexican drug cartels. There is no exclusionary rule that applies. Further, this opinion evidence is necessary as the world of Mexican drug cartels is well beyond the knowledge and experience of the average juror.
[53] The difficulty with Boston’s proposed opinion evidence is that it is not relevant to the charges before the court. These accused are charged, inter alia, with conspiracy to trafficking cocaine, conspiracy to import cocaine, money laundering, and committing offences in association with a criminal organization. It is the theory of the Crown that two of the accused, Bulhosen and Vilalta-Castellanos, were Mexican residents who entered into agreements with Canadians, including the accused Buffone and Kompon, to import cocaine into Canada from Mexico via Brazil.
[54] The Crown will call evidence to show that after the cocaine was imported into Canada, it was distributed in Canada. Then, money obtained through the sales in Canada was remitted back to Mexico by money-laundering techniques such as bulk cash smuggling. Further, the Crown intends to call evidence to prove that Bulhosen and Vilalta-Castellanos reported back to at least two other Mexican residents with respect to this scheme.
[55] Significantly, the Crown does not allege, and has no evidence, that any of these accused is a member of any Mexican drug cartel, or is associated with any Mexican drug cartel. Moreover, membership in a Mexican drug cartel is not an element of any of these offences, and evidence of a connection between any of these accused and a Mexican cartel does not tend to prove any of the elements of the offences.
[56] In oral submissions, the Crown submitted that the proposed evidence is relevant because the method of cocaine importing that is alleged in this case is sophisticated and expensive. The Crown submitted that expert evidence that Mexican drug cartels are well organized operations that engage in sophisticated methods of importing cocaine would provide an explanation to the jurors as to why Canadians would enter into a criminal agreement with Mexican residents.
[57] In my view, the Crown’s suggested use of this evidence is a crude attempt to introduce inadmissible character evidence. The Crown, in effect, is suggesting that because some Canadians made an agreement with some Mexicans, and because the illegal activity originates in Mexico, then the alleged conspirators must be acting in the same manner as members of a Mexican drug cartel. This is not an acceptable use of this evidence, and thus it is not relevant to this case.
[58] Further, at the second step of the analysis, I find that any evidence of a connection between these accused and Mexican drug cartels is highly prejudicial. I accept that there is a common perception in Canada that Mexican drug cartels are organizations that are involved in large-scale organized drug trafficking, and are associated with extremely violent activities. If jurors heard evidence that these accused had a possible connection to an unnamed Mexican drug cartel, it is likely that the jurors would consider these accused to be of bad character. Thus, the jurors may be tempted to convict these accused of criminal offences simply because they believe that these accused are bad people. This is, of course, a forbidden thought process.
[59] Therefore, even if Boston's opinion evidence with respect to Mexican drug cartels had some probative value, I find that the prejudicial effect of this evidence far outweighs its probative value. Therefore, I find that all of Boston's proposed expert evidence is inadmissible.
CONCLUSION
[60] In summary, I find that Waterfield's proposed evidence is admissible, but for the opinions expressed in paragraphs 30-31, 34-41, 45-50, and 56-60 of his report. I find that Truong’s proposed evidence is entirely admissible. I find that Boston's proposed evidence is entirely inadmissible.
[61] I also confirm that the proposed evidence of the other 19 expert witnesses referenced in the Crown’s application record is admissible. Leave has already been granted for the Crown to call more than five expert witnesses pursuant to s.7 of the Canada Evidence Act.
J. R. Henderson J.
Released: December 6, 2016
CITATION: R. v. Bulhosen, 2016 ONSC 7644
COURT FILE NO.: 4355/15
DATE: 2016/12/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Prosecution/Applicant
- and -
Raul Bulhosen, Borja Vilalta-Castellanos,
Vito Buffone, Jeffrey Kompon,
Marco Cipollone, John Edward Oliver
and Dean Brennan
Accused/Respondents
PRE-TRIAL MOTION
EXPERTS’ QUALIFICATIONS
J. R. Henderson J.
Released: December 6, 2016