CITATION: Her Majesty the Queen v. Nuttall, 2016 ONSC 7732
COURT FILE NO.: CR-16-011-0000
DATE: 20161208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Ms. Elizabeth Barefoot, for the Federal Crown
- and -
Druin Nuttall
Mr. Douglas Grace, for the Accused
Accused
HEARD: December 7, 2016
REASONS FOR DECISION ON CROWN PRETRIAL APPLICATION:
Expert Evidence
Conlan J.
I. Introduction
The Charges
[1] Mr. Druin Nuttall stands charged on a three-count Indictment, as follows.
Druin Nuttall stands charged that, on or about the 15th day of October, 2015 at the City of Owen Sound in the Judicial Region of Central West, 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 THAT Druin Nuttall stands charged that, on or about the 16th day of October 2015 at the City of Owen Sound in the Judicial Region of Central West, did possess a substance included in Schedule 1 to wit; methamphetamine contrary to section 4(1) of the Controlled Drugs and Substances Act.
AND FURTHER THAT Druin Nuttall stands charged that, on or about the 16th day of October 2015 at the City of Owen Sound in the Judicial Region of Central West, did possess a substance included in Schedule 1 to wit; codeine contrary to section 4(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 sitting alone. The trial began on December 5, 2016 and continued for three days thus far. It is scheduled to resume tomorrow, December 9th.
The Basic Facts
[3] The police stopped a car being driven by Mr. Nuttall just north of Markdale, Ontario, on Highway 10, the evening of October 15, 2015.
[4] Based on police investigation up to that point, the accused was arrested for possession of cocaine for the purpose of trafficking. The police had reasonable and probable grounds to believe that Mr. Nuttall was transporting cocaine from the Toronto area to the Owen Sound area for the purpose of trafficking in it in Grey County.
[5] Incidental to the arrest, the car was searched by the police. Inside a backpack, about 29 grams of cocaine were found.
[6] Multiple cellular telephones were seized by the police, one of which contained text messages that the authorities suspect are connected to drug trafficking.
[7] Under warrant, the police searched the residence that the accused shared with others. A very small amount of methamphetamine was found, along with liquid codeine and other things, such as a digital scale for example, that the police believe are related to drug trafficking.
The Crown Application
[8] The Federal Crown applies for a ruling qualifying Detective Constable Mark Piche (“Piche”) 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”.
[9] The Application is opposed by the Defence.
The Ruling
[10] At Court on December 7th, exercising my trial management powers to make efficient use of the time allotted to this trial, I dismissed the Crown’s Application without having held a formal voir dire. At the time, I gave brief oral reasons for that decision. I indicated that written reasons for the ruling would be included in the ultimate Reasons for Judgment on the merits of the case, however, as a courtesy to counsel I have prepared the reasons to have them released prior to the resumption of the trial tomorrow.
[11] This Court’s authority to dismiss the Application summarily has been confirmed many times in the jurisprudence, including the fairly recent decision of Coroza J. in R. v. Singh et al., 2015 ONSC No. 7092, citing R. v. Lising, 2005 SCC 66, at paragraph 34, R. v. Durrette (1992), 1992 CanLII 2779 (ON CA), 72 C.C.C. (3d) 421 (Ont. C.A.), at paragraph 46, R. v. Kutynec, 1992 CanLII 7751 (ON CA), [1992] O.J. No. 347 (C.A.), at paragraphs 36-40, and R. v. Garrick, 2014 ONCA 757, at paragraphs 16-18.
[12] I dismissed the Application without the need for a voir dire because, based on the materials filed and having heard briefly from counsel at Court on December 7th, I was convinced that the Application was clearly without merit and stood no reasonable chance of success.
II. Analysis
The Onus and Standard of Proof
[13] The burden of proof is on the Crown to demonstrate, on a balance of probabilities, that the proposed evidence is admissible.
The Materials Filed
[14] The Crown, appropriately, filed Piche’s curriculum vitae and his report dated October 17, 2016, which comprises the sum total of his anticipated evidence at trial.
A Summary of the Applicable Legal Principles
[15] 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.
[16] 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), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.), at pages 411-415.
[17] 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.
[18] 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), 1998 CanLII 14604 (ON CA), 129 C.C.C. (3d) 1 (Ont. C.A.), at page 14.
[19] 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), 1999 CanLII 3793 (ON CA), 137 C.C.C. (3d) 225 (Ont. C.A.), at paragraphs 77-89.
[20] As can be seen, the Court has an important gatekeeper role. It is not sufficient, in my view, for the Crown to argue that the proposed expert evidence would be helpful. Helpfulness is not enough.
[21] 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), 1999 CanLII 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.), at page 110.
[22] 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.
[23] 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.
[24] 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.
[25] 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), 1994 CanLII 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.), at page 201; R. v. Bryan, 2003 CanLII 24337 (ON CA), [2003] O.J. No. 1960 (C.A.), at paragraphs 14-18.
[26] 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.
[27] 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.
[28] Courts, particularly since the Supreme Court of Canada decided R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, have been careful to not ignore the dangers associated with the admission of expert evidence.
[29] 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.
[30] 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), 2006 CanLII 1012 (ON SC), 207 C.C.C. (3d) 86 (Ont. Sup. Ct.), at paragraph 18.
The Legal Principles Applied to this Case
Relevance
[31] Logical relevance is established here. If the matter had been fully argued after a voir dire, I doubt that the Defence would have submitted otherwise.
[32] 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 the proposed evidence ought not to be admitted.
[33] First, in some respects, the proposed expert evidence is not grounded on proven facts, and the case for the Crown at trial is closed but for the proposed testimony of Piche. For example, one of the six things pointed to by Piche to support his opinions is the suspected “cutting agent” that was seized from the residence. There is no evidence, however, that the said substance is any of those indicated by Piche as being examples of cutting agents – ephedrine, creatine and lidocaine. In fact, the evidence at trial thus far is that the substance could be anything. It was not analyzed.
[34] Second, the extent to which the proposed expert evidence supports the inference sought to be made from it is very limited. For example, Piche opines that 29.4 grams of cocaine is not a common amount held by someone to consume at one time. That has little to do with whether Mr. Nuttall intended to traffic the cocaine found in the backpack or consume it himself (not all at once but over time).
[35] As another example, Piche admits in his report that he has not examined any of the plastic baggies seized by the police. Thus, the extent to which his commentary on baggies and drug trafficking supports the inference that these items seized from this car and this house were to package cocaine for resale to customers is limited.
[36] Third, much of the proposed expert evidence is not even at issue in the case. For example, Piche points to the digital scale seized from the residence as being one potential sign of drug trafficking. Of course it is. The question is whether there are enough indicia here to prove the charge beyond a reasonable doubt.
[37] This Application fails at the legal relevance stage of the analysis.
Necessity
[38] It is patently obvious that the proposed expert evidence is unnecessary in this case. Perhaps unwittingly, Piche and the Crown have admitted that.
[39] The only potentially controversial part of Piche’s report is that dealing with the text messages and whether they are indicative of drug trafficking.
[40] Piche points to 19 messages that he states are “obvious statements made that relate to drug – specifically cocaine, trafficking”. If it is that obvious, why do I need to hear from Piche?
[41] At Court on December 7th, Ms. Barefoot was candid enough to acknowledge that the Crown’s position is that it is crystal clear that the texts show trafficking in narcotics. If that is the case, then why do I need to hear from Piche?
[42] As another example, Piche’s report speaks about Mr. Nuttall’s limited income (according to what he told the police during his interrogation) and how that may be incongruous with his ability to purchase cocaine, which is expensive. I do not need the assistance of Piche to decide the significance, if any, of the accused’s income. Nor do I need evidence cloaked in the mystique of expert opinion to figure out that cocaine is not cheap and is sometimes sold for money.
[43] This Application fails on the necessity criterion.
The Absence of any Exclusionary Rule (the Ultimate Issue)
[44] Piche’s report comes perilously close to concluding that Mr. Nuttall possessed the 29.4 grams of cocaine for the purpose of selling it to others, which of course is the issue that I have been tasked to decide.
[45] In any event, as it appears that this is becoming somewhat of an industry in narcotics cases (experts on personal use versus possession for the purpose of trafficking), I will assume that the Application passes this hurdle.
[46] The report is certainly less troubling than others that I have seen. Some appear to simply invite the trier of fact to retire as the matter has been settled: words to the effect of saying “in my opinion the accused is guilty of possession of a controlled substance for the purpose of trafficking”.
A Properly Qualified Expert
[47] Piche has a very impressive resume. Depending on what would have developed during his testimony at the voir dire, I likely would have accepted him as a properly qualified expert in the fields proposed.
III. Conclusion
[48] The proposed expert evidence is not legally relevant and is clearly unnecessary. The Application is dismissed.
Conlan J.
Released: December 8, 2016
CITATION: Her Majesty the Queen v. Nuttall, 2016 ONSC 7732
COURT FILE NO.: CR-16-011-0000
DATE: 20161208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Druin Nuttall
Accused
REASONS FOR DECISION ON CROWN PRETRIAL APPLICATION:
Expert Evidence
Conlan J.
Released: December 8, 2016