COURT FILE NO.: CRIMJ(F) 712/17

DATE: 2018 04 05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

• and -

MURRAY HOLBURN

Respondent

Sam Weinstock, for the Applicant federal Crown

Lee Sela, for the Respondent Holburn

HEARD: March 5, 2018

EXPERT EVIDENCE RULING

D.E HARRIS J.

1The Crown applied to admit expert opinion evidence from Detective Constable Troy Phillips on the Respondent’s trial before judge and jury on one count of possession for the purpose of trafficking of fentanyl and one count of possession for the purpose of Oxycodone.

2It was not contested that the officer could testify to the street value of the two drugs in question. The issue was whether he could give his opinion with respect to the possession being for the purpose of trafficking. I ruled at the hearing that this opinion was inadmissible. These are my reasons.

3Neither the officer in the hypothetical posed to him nor I, as the motions judge, was given any background or circumstances of the respondent’s alleged possession. We were not told anything about the packaging, the paraphernalia seized if any, the discovery of a debt list or anything else pertaining to the possession of the drugs. Rather, the issue was argued strictly on the quantity of pills and fentanyl patches seized together with the minimum and maximum street value for each.

4The potential value of the 40 fentanyl patches of 4000mcg strength was between $4000 and $8000, the Oxycodone was $5400 to $10800. The Oxycodone was in two forms: 20 mg x 180 pills of Supeudol and 5 mg x 360 pills of Oxycocet.

5The officer was very fair in testifying about the likely prices of the three different drugs seized, adding as a caveat that he could not account for volume discounts or factors like an ongoing relationship between the seller and buyer which could reduce the price.

6The officer’s opinion with respect to the Oxycodone in general was that a person who abused it would use 1 to 12 tablets in a 24 hour period, depending on the strength. With respect to the 180 tablets of the Oxycodone in the form of Supeudol, the officer said it was consistent with trafficking and also consistent with it being legitimately prescribed for a person with chronic pain.

7The same was true for the Oxycocet. The 360 tablets were consistent with a 30 day prescription at the maximum 12 tablet per day dose. It was also consistent with being held for the purpose of trafficking.

8The officer’s report with respect to the 40 fentanyl patches stated that patients are commonly prescribed one patch for 3 days. Fentanyl patches are generally prescribed in quantities to last one month. Because a patch lasts for 3 days, a common prescription consists of 10 patches for the month. Possession of 40 patches is well above this number and is indicative of trafficking.

9Officer Phillips testified to his training and experience. He has seven years of in-depth experience as a drug investigator with the Durham Police force. He has worked in an undercover capacity, as an officer in charge of drafting search warrants and as an officer executing search warrants and seizing drugs. He has been a handler for 8 confidential informants. Through this experience, he has learned about “drug diversion” which in this parlance, refers to individuals with prescriptions selling to other individuals, whether users or traffickers.

10Detective Constable Phillips has attended conferences and symposiums, most with a law enforcement bent but also some with a more medical focus conducted by doctors and paramedics.

11Officer Phillips readily conceded in cross-examination that he does not have medical knowledge or understanding. He could not testify to the consumption patterns of the two drugs in question and could not factor into his opinion consumption specifics of the people using the drug, such as weight, drug tolerance and whether the drug was being used post-operation for pain management.

12Looking first at the admissibility of the Oxycodone opinion, evidence that the pills could have been possessed either as a result of a legitimate prescription or for drug trafficking is of little if any probative value in the service of this prosecution.

13The issue the officer’s opinion was speaking to on this voir dire is an element of the offence which the Crown must prove beyond a reasonable doubt: whether the possession was for the purpose of trafficking. For this reason, a conclusion of possession for the purpose of trafficking must be shown to be the only reasonable inference available: R. v. Villaroam 2016 SCC 33, [2016] 1 S.C.R. 1000 at paras. 29-30.

14If evidence is equally consistent with an innocent inference as with a guilty inference, it is of negligible probative value. As Justice Goudge said in his report, while critiquing the language used by pathologists,

If "consistent with" a particular cause of death means no more than "may or may not be the case," it is surely of little help. “Report of the Inquiry into Pediatric Forensic Pathology in Ontario”, Vol. 3, p. 435

15The authors of “The Law of Evidence in Canada” (5th ed., 2018, Lederman, Bryant, Fuerst) comment on this issue, saying,

12.58 Opinion evidence must have some probative value to make the existence or non-existence of a material fact more probable or less probable than it would be without the evidence. Expert evidence that does not render the disputed material fact more probable or less probable than it would be without the evidence is immaterial and is not capable of assisting the trier of fact to decide an issue. (footnotes omitted)

Also see R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 20 per McLachlin J. in dissent.

16Although the officer’s opinion would be combined at trial with whatever surrounding evidence there might be of possession, if the expert evidence is of zero probative value, it cannot advance the Crown’s case even when viewed against the backdrop of the full evidentiary record.

17For this reason, the proposed evidence fails the relevance criteria even without reference to the issue of potential prejudice: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-21. Nor does the potentially significant concern that the opinion impacts directly on the ultimate issue have to be considered: R. v. Sekhon 2014 SCC 15, [2014] 1 S.C.R. 272 at para. 76. There was simply no evidentiary benefit to this evidence to balance against its potential cost.

18Looking at the admissibility of the fentanyl opinion, the officer’s lack of medical knowledge and very limited experience with fentanyl patch prescriptions defeat the application to admit expert evidence. It was clear that the officer had some experience with seeing fentanyl prescriptions but it was cursory in nature.

19His confidential human sources had conveyed some information to him on the subject of fentanyl in general. He had handled fentanyl patches in the past. He had seen fentanyl patches which had been trafficked. These were out of the prescription boxes and were contained in ziplock baggies.

20The critical question was whether the 40 fentanyl patches could have been prescribed or whether the possession of them was unlikely to have been through legitimate medical sources. The officer testified that his knowledge came from first hand observations when individuals were being arrested for trafficking or when people were found dead from overdoses.

21He was not aware of what doctors proscribe. He testified that he had seen prescriptions “several times.” This did not inspire confidence.

22The premise of expert evidence is to provide the jury with specialized knowledge beyond their purview. In this instance, the opinion sought was of the most basic kind. It was based on rudimentary knowledge which a great many health care professionals would have.

23However, the expertise of the officer was significantly lacking. His experience and knowledge was mainly relevant to illicit drug dealing and only incidentally overlapped into the area of patch prescriptions.

24A doctor, nurse or pharmacist would have been the right person to testify as an expert on this subject. Any of these professionals, versed in the possible variations of patch prescriptions, could have easily given a precise and definitive answer to the Crown’s hypotheticals.

25While it may not always be helpful to ask whether there is a more appropriate category of expert than that tendered, it can at times be a useful exercise. Here, it highlights the inadequacy of the expertise of the proposed witness. A police officer is the wrong person to give the type of evidence sought by the Crown in this case.

26The Mohan requirement for a properly qualified witness is to ensure that the evidence adduced before the jury has at least a threshold level of reliability: Mohan at p. 25. The officer’s proposed evidence is not rooted in sufficient experience or knowledge of the prescription pattern for fentanyl patches. It is not difficult to imagine the officer giving erroneous evidence on this very simple question, evidence that could be easily refuted by any number of health care professionals. That would be an embarrassment for the administration of justice, particularly given the easy availability of proper experts on this question.

27The officer may well have possessed more knowledge that the average layman of the quantity of fentanyl patches likely to be prescribed by a doctor but that is insufficient to gain admission as expert evidence. His evidence is unreliable on a simple factual issue upon which the finder of fact is entitled to a high degree of reliability and certainty.

28In sum, the two opinions tendered are inadmissible. I appended to the indictment the expert report, highlighting those portions which, in accordance with these reasons, ought not to be adduced as expert opinion evidence before the jury.