Court File and Parties

COURT FILE NO.: 15-0012 DATE: 20170707 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Philip Reid Defendant

Counsel: John H. Hanbidge, for the Crown Paul Lewin, for the defendant

HEARD: June 19, 2017

EXPERT WITNESS RULING

garson j

Introduction

[1] The Crown brings an application seeking a ruling in advance of the trial on qualification of Detective Constable Charlie Rau as an expert witness to give evidence on possession for the purpose of trafficking in cannabis marihuana, including production, valuation and the trafficking thereof, pursuant to s. 657.3 of the Criminal Code.

[2] In support of the application, the court heard evidence from DC Rau and the Crown filed his curriculum vitae as well as a statement of his anticipated evidence.

[3] The defendant opposes the qualification of DC Rau.

[4] For the reasons that follow, I am satisfied that DC Rau be permitted to give evidence as an expert witness in the area of production, valuation and trafficking in cannabis marihuana, in relation to the possession of such substances for the purpose of trafficking.

Background and Evidence

[5] DC Rau joined the OPP in April 2005. He was a member of the Community Drug Action Team for the County of Huron from September 2010 – May 2013 and since then has been assigned to the Drug Enforcement Unit of the Organized Crime Enforcement Bureau in London.

[6] He has been involved in over 150 marihuana cultivation investigations including both indoor and outdoor cultivation. He has also been involved in marihuana investigations with weights ranging from one gram to many pounds and has interviewed and debriefed marihuana users and traffickers regarding usage, methods and techniques.

[7] Amongst his many police training courses, he has attended the: (i) Drug Investigative Techniques course at the Ontario Police College (“OPC”) in 2010; (ii) Synthetic Drug Operations course (and subsequent re-certifications) at OPC in 2013, 2014 and 2015; and (iii) Expert Witness Symposiums in Toronto in May of 2014 and 2015 which included discussions regarding cannabis marihuana growing operations.

[8] He relied on his experience and training to calculate yields from the various plants seized, in determining that one gram of cannabis marihuana can be rolled into five average size cigarettes and that a heavy user smokes between five to seven marihuana cigarettes per day.

[9] He further relies on the seized weigh scales and $5,830 in Canadian currency to support his inference and conclusion that the cannabis marihuana seized in this investigation was being held for the purposes of trafficking.

[10] He was vigorously cross-examined on his conclusions relating to the sufficiency of the quantity of drug seized to draw the inference of trafficking. He was specifically challenged in the areas of the survey methodology he relied on in speaking to marihuana users and with regards to his training and experience in dealing with cannabis marihuana.

Methodology

[11] He was questioned about the survey methodology he utilized in speaking to the roughly 40 marihuana consumers about their consumption patterns. This survey group consisted of persons arrested, found-ins [1] and confidential informants. The officer believes he made notes regarding many discussions with the confidential informants. He identified the majority of persons in this group as moderate - heavy users (i.e. 1-3 grams per day), based on how these people came to police attention and what they admitted to him.

[12] He accepted that some people may lie or underplay their actual usage of marihuana.

Training and Experience

[13] He accepted that his trainers for his courses were police officers and that he relied on them for his opinion that the average adult heavy user consumes 1-3 grams per day of cannabis marihuana. He has not taken additional courses (beyond those referred to) in this field and does not know what qualifications or training the trainers had.

[14] He further agrees that he received no accreditation as an expert and there is no regulatory body for police experts. His expert qualifications have been accepted in at least 3 separate criminal cases and he has written and filed expert reports in other cases which have been accepted by the court. [2]

[15] He agreed that he is not an expert in the area of quantity of marihuana consumed by a medical user or amounts a heavy user would consume by way of edibles in a day. He also expressed a lack of knowledge in relation to the quantity of raw marihuana plant necessary to produce extracts such as oil.

[16] The officer demonstrated some knowledge about licensed medical marihuana producers and the extraction of medicinal cannabinoids and CBD from plant matter. Although he had some understanding of the yield of THC from plant bud, he wasn’t aware of classification of users (i.e. moderate-heavy) in terms of consumption of edibles per day.

Positions of the Parties

[17] The Crown submits that he has met the test for admissibility and that the evidence proposed is reliable and necessary to assist the trier of fact and it should be admitted.

[18] The defendant argues that the evidence is unreliable and suggests that the survey methodology is weak and the level of expertise of the officer is insufficient for the intended purposes.

Discussion

The Law

[19] The inquiry into the admissibility of expert evidence involves a two-step process. At step one, the party relying on the expert must establish the four Mohan [3] requirements for admissibility: (1) Relevance; (2) Necessity; (3) Absence of an Exclusionary Rule; and (4) A properly qualified expert.

[20] At step two, or the gatekeeping step, the court must conduct a cost-benefit analysis to determine whether the potential benefits of the proposed expert evidence outweigh the costs or risks. In other words, the court must determine whether the evidence is sufficiently beneficial to warrant admission. [4]

[21] Increasingly, courts are being called upon to be more vigilant and robust at the gatekeeping stage and to carefully guard against the inherent dangers posed by expert evidence. These include the expert’s independence and impartiality, which go to both weight and admissibility. [5]

Application to the facts before me

[22] The defendant’s arguments focused primarily on the issues of reliability (which underlies all of the factors) and a properly qualified expert. Accordingly, my discussion will focus on these areas. It is apparent to me that the proposed evidence is relevant, necessary and not the subject of any exclusionary rule.

[23] The defendant filed excerpts from Volume 3 of the Inquiry into Pediatric Forensic Pathology in Ontario (2008) (“the Goudge Report”) dealing with threshold reliability in assessing scientific evidence. The report is replete with references to the need to focus at the gatekeeping stage, on the reliability of the proposed evidence. More specifically, recommendation 134 speaks to the development of programs for judges on the scientific method and suggests it would be helpful in Canada to prepare a guide similar to that proposed in the United States entitled “A Reference Manual on Scientific Evidence”, Third Edition, National Academic Press.

[24] The defendant in turn relies on various excerpts from the above U.S. Reference Manual to challenge the methodology used by DC Rau in conducting his survey and in determining the results. More specifically, the defendant suggests the officer’s results are unreliable and flawed because: (i) the questions asked weren’t clear and precise or consistent; (ii) there was no pre-testing of the questions; (iii) all exchanges were not verbatim recorded; (iv) there was not double-blinded and randomized testing of the survey question; (v) the interviews were not controlled and occurred under varying circumstances; (vi) no one monitored the surveys and none of the respondents were re-contacted to review the accuracy of their responses; and (vii) there were no trained and independent coders to review and assess the responses.

[25] In essence, the defendant is relying upon the factors enumerated in the leading American authority Daubert v. Merrell Dow Pharmaceuticals Inc. [6] for establishing reliability. The Daubert case accepted the methodologies for testing theories in the scientific community.

[26] Yet these methodologies were exactly what Doherty J.A. rejected in Abbey when assessing the admissibility of Dr. Totten, an acknowledged expert in the culture of Canadian street gangs who testified about the meaning of a teardrop tattoo. He noted at para. 108 that: As [Dr. Totten’s] opinion was not the product of scientific inquiry, its reliability did not rest on its scientific validity.

[27] Doherty J.A. went on to find that most expert evidence routinely heard in criminal courts in Canada cannot be scientifically validated. Rather than relying on the Daubert factors, experts may rely on their knowledge gained through experience and training and field study. Simply put, it is neither appropriate nor necessary to rely on the Daubert factors to assess the reliability of the proposed expert evidence in these circumstances.

[28] The Goudge Inquiry dealt with the evidence of a disgraced forensic pathologist. I am dealing with a police officer. A qualified expert can acquire the requisite skill or knowledge in the matters on which he or she is proposed to testify either through study or experience. [7]

[29] DC Rau’s experience includes information gathered during years of service, courses attended, conversations with fellow officers, arrested persons, confidential informants, found-ins, and others. Although much of the information he relies on is anecdotal, when considered in the context of his lengthy police and drug investigation experience and his training, this information is sufficient to form a part of the basis for his accumulated special knowledge.

[30] The cumulative information and practical experience gathered from others in the course of the officer’s duties permit him to acquire special knowledge [8]. This special knowledge is enhanced by the training seminars he attended.

[31] The fact that he is not a doctor, psychologist, pharmacist, statistician, or otherwise more qualified in the areas of scientific research do not detract from his qualifications nor serve as impediments to his ability to testify as an expert. I do not accept the conclusions in R. v. Klassen [9], that anecdotal information is insufficient to form the basis for an opinion or that medical doctors, pharmacologists or drug counsellors are the only ones capable of providing such opinions. These limitations are properly addressed when dealing with the scope and breadth of the expertise.

[32] The fact that evidence may be admissible is not determinative of the weight to be afforded to that evidence. As noted in Abbey, there is a distinction between threshold reliability and ultimate reliability. Many of the concerns raised by the defendant are properly issues that go to weight and not admissibility. The court’s duty as gatekeeper does not end at the admissibility gate but is ongoing throughout the trial. The court must ensure that the expert’s testimony remains within its proper boundaries. [10]

[33] The defendant also raises concerns, albeit tempered concerns, about the objectivity of the officer. He suggests that because DC Rau knows the officers, he cannot give fair, impartial and objective evidence. I disagree.

[34] DC Rau was not involved in the investigation. The police community is a small and tight-knit community. I would be surprised if his testimony was that he didn’t know the officers. Mere knowledge of the investigating officers does not, in the absence of other evidence, disqualify a proposed expert on the basis of lack of objectivity. DC Rau testified that he was aware of his duty to objectively assist the court and that he is willing to do so. I accept his evidence. I am not satisfied that his proposed testimony would lack objectivity or impartiality, or that he has an institutional allegiance to the Crown.

[35] He has been qualified as an expert to provide opinion evidence in the quantities of cannabis marihuana in the past. He has submitted numerous expert reports which have been accepted and relied upon by courts. Given his role as a police officer, it is not surprising that he has never given evidence for the defence.

[36] Courts have long accepted the expert testimony of police drug experts in similar situations. On the facts before me, the probative value of the proposed evidence outweighs any prejudicial effects.

[37] This is not a situation like that in R. v. Singh [11] where the expert officer’s opinion was given in regards to the defendant’s credibility and the defendant’s knowledge of the presence of drugs in his vehicle.

[38] I also distinguish the decisions in R. v. Mulaj [12] where the court dealt with a relatively small quantity of drugs (4.3 grams of crack cocaine) and R. v. Jerrett [13] where the amount possessed was an ounce, which the officer concluded to possibly be for personal use. In Jerrett, the court indicated that if the amount possessed was very great, the court might not have all the same concerns regarding the proposed expert evidence. On the evidence before me, there are approximately 1200 grams of dried marihuana and some 45 plants, an amount that significantly exceeds the quantities referred to in the above cases.

[39] On the evidence before me, I am prepared to qualify him as an expert in the areas of valuation, production and trafficking in cannabis marihuana and possession for the purposes of trafficking in cannabis marihuana.

[40] Having regard to the scope of his testimony and the need to ensure appropriate boundaries, DC Rau shall not be permitted to testify about the following: (i) the quantity of cannabis marihuana edibles required to be classified as a heavy user; (ii) the quantity of plants or raw material necessary to produce marihuana extracts; and (iii) the patterns and quantities of use of medical consumers.

[41] By delineating the scope of DC Rau’s evidence from the outset, the court can properly limit his opinions to those areas where he has demonstrated special knowledge and is properly qualified. Although I accept that his survey sample size may be small, it is simply one source of information he relies upon, coupled with his training and experience in forming opinions about consumption rates of users. [14]

[42] In any event, the limitations of the evidence before me make it clear that any opinions expressed by DC Rau on the issue of consumption rates will not be definitive nor dispositive on the issue of possession for the purposes of trafficking. Put another way, his opinion does not carry with it the risks of confusion, excessive trial consumption or usurping the role of the trier.

Conclusion

[43] The Crown has established on a balance of probabilities that the proposed expert evidence of DC Rau is admissible. His experience in the world of drug investigations and interactions with drug users, coupled with his training, is sufficient to permit his qualification as an expert in cannabis marihuana use and behaviour including consumption rates.

[44] The four criteria identified in Mohan have been met and the proposed evidence is sufficiently beneficial and reliable to warrant admission.

[45] DC Rau shall be accepted and qualified as an expert witness and permitted to testify within the scope and boundaries earlier identified.

Footnotes

[1] Found-ins refers to persons found at locations where search warrants were executed.

[2] It appears that his qualifications have only been challenged on one prior occasion which resulted in his being qualified to provide expert opinion evidence in the area of cannabis marihuana: see R. v. Munro, March 11, 2014, unreported, O.C.J., Brophy J. Ultimately, DC Rau’s testimony was admitted at trial: see R. v. Munro, 2014 ONCJ 402, 115 W.C.B. (2d) 436.

[3] R. v. Mohan, [1994] 2 S.C.R. 9, at para. 17.

[4] White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, at paras. 23-24, adopting the analytical framework set out in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330.

[5] White-Burgess, at paras. 40 and 45.

[6] (1993) 113 S.Ct. 2786 (U.S. Cal.), referred to in R. v. J. (J-L), 2000 SCC 51.

[7] Mohan, at para. 27.

[8] R. v. Pham, 2013 ONSC 4903, 300 C.C.C. (3d) 111; R. v. Dominic, 2016 ABCA 114, 335 C.C.C. (3d) 178.

[9] 2003 MBQB 253, 59 W.C.B. (2d) 335.

[10] R. v. Sekhon, [2014] 1 S.C.R. 272, at para. 47; Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 2017 CarswellOnt 9169.

[11] 2014 ONCA 791, 122 O.R. (3d) 481.

[12] 2014 ONSC 4405, 113 W.C.B. (2d) 635.

[13] (2004) 719 A.P.R. 348 (N.F. Prov. Ct.)

[14] These distinctions did not exist in R. v. Jacobs, 2014 ABCA 172, 312 C.C.C. (3d) 45.

Released: 20170707 Justice M. A. Garson