COURT FILE NO.: CrimJ(F) 622/17 DATE: 20180820
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Crown
v.
NATALIA SAFRONI
Defendant
BEFORE: Ricchetti, J.
COUNSEL: S. Aujla, for the Crown M. Simrod, for the Defendant
HEARD: August 8, 9, 10, 13, 14 and 15, 2018
RULING ON ADMISSIBILITY
[1] The Crown seeks to call Sgt. Rodney Gray to give evidence regarding the weight of the opium in felt-like cloths.
BACKGROUND
[2] Ms. Safroni returned from Turkey on August 7, 2014. She was sent to secondary inspection.
[3] Ms. Safroni’s baggage contained two nylon bags. One nylon bag tested positive in an ion scan. Anomalies were discovered in an x-ray of the same bag. During a closer inspection, the CBSA officer discovered that the nylon bags had secreted behind the lining, felt-like cloths which contained a black, sticky substance with an earthy smell wrapped in plastic.
[4] Ms. Safroni was arrested for importing a controlled substance.
[5] A total of 8 felt-like cloths were eventually discovered in the lining of Ms. Safroni’s two nylon bags.
[6] The weight of the felt-like cloths in the two nylon bags was approximately 4 kilograms.
[7] There is no dispute that the felt-like cloths contained opium - two samples had tested positive for opium by Health Canada. Another two samples tested positive for codeine and morphine, components of opium.
[8] Although asked to do so, Health Canada was not able to quantify the amount of opium in the felt like cloths.
[9] As a result, the Crown sought out someone who could determine the quantity of opium in the felt like cloths. Sgt. Gray responded.
Sgt. Gray’s proposed testimony
[10] Sgt. Gray’s academic background is music. Aside from a high school chemistry course, Sgt. Gray has no background in chemistry, the application of scientific methodology or chemical analysis. He has never been qualified to give evidence as such an expert in these fields.
[11] Sgt. Gray has considerable experience as a police officer. He has for many years worked in drug enforcement – importing, trafficking and so on. He also teaches other police officers about drugs. As a result, he has experience with opium including its source, collection, description, and methods of importation. He has given expert evidence relating to drugs, including opium, in prior court proceedings.
[12] Sgt. Gray has, as part of his teaching programs, created (cannabis oil and crack cocaine) and retrieved controlled substances from liquid products which had had the controlled substance mixed in. Although it is important to note there was no evidence that Sgt. Gray’s methodology used for the purpose of his teaching programs had been approved by anyone with chemistry or analytical qualification nor was the results confirmed by any qualified person that Sgt. Gray had achieved what he said he had achieved.
[13] Sgt. Gray has “seen” controlled substances (heroin) dissolved in cloth. But he did not testify that he extracted the heroin or testified to court about doing so.
[14] While Sgt. Gray has testified as an expert, he did not (and could not) say that he had been previously qualified to provide expert or non-expert evidence to a court with respect to the retrieval of controlled substances from other products where they were mixed.
[15] Sgt. Gray has testified as to the quantity of a controlled substance, but that was essentially weighing the controlled substance discovered on the importer or mathematically determining the total weight from sample quantification done by Health Canada.
[16] In this case, after Health Canada had stated it could not determine the precise quantity of opium in the felt like cloths, Sgt. Gray undertook an experiment. The experimental methodology used by Sgt. Gray in this case was not approved by (or known to) Health Canada or any other qualified person in this or similar methodology.
Sgt. Gray’s methodology
[17] Sgt. Gray rinsed the felt cloths twice in warm tap water. He collected all the rinse water and boiled it until the water evaporated.
[18] Sgt. Gray stated the residue looked like opium. Sgt. Gray weighed the residue. Sgt. Gray would testify that it was opium. He returned the residue in aluminum trays to the RCMP airport detachments describing the residue as “opium” with a specified weight for the contents of each aluminum tray.
[19] The residue was not sent to Health Canada for analysis. The residue was not sent to any qualified person or tested in any manner to determine what the residue actually was or contained. As a result, there is no expert evidence as to what the residue was or contained.
[20] Sgt. Gray has not conducted such an experiment (extracting a controlled substance from material) previously or testified as to the methodology or the results for court purposes.
Position of the Parties
[21] The Crown does not seek to call Sgt. Gray as an expert. Instead, the Crown submits that it is the police who determine weight of a controlled substance and the methodology used can be easily replicated – nothing but water was added and then boiled away. The Crown submits that this evidence does not require an expert to be admissible.
[22] The Defence submits this is expert evidence and Sgt. Gray is not qualified to give the expert evidence proposed.
Analysis
[23] Since the Crown does not seek to call Sgt. Gray as an expert, a White Burgess analysis is not required.
a. Is the proffered evidence Expert Evidence?
[24] The first question is whether this is expert evidence.
[25] In my view it is.
[26] This was an experimental process conducted by Sgt. Gray with many unanswered questions. Is opium water soluble, to what extent and under what conditions? Did the process dissolve any of the felt-like cloth or chemicals in the felt-like cloth? Were any particles/substance added or cause any chemical change by rinsing the felt-like cloths? What was the water content of the residue? Did the boiling of the rinse water change the nature of the substance?
[27] One cannot state with certainty (or any degree of certainty) that the residue was opium.
[28] In my view, an ordinary person would not know to conduct such an experiment to retrieve the opium, the methodology to use or understand the results. This experiment is not derived from ordinary human experience. Unlike weighing powder, an ordinary human function any ordinary person can understand and perform to determine weight, this involved an experiment to attempt to extricate the opium from the felt-like cloth.
[29] While it may be easy to draw an inference that the residue contains opium, the evidence of Sgt. Gray was that it was opium. That is how he referred to in the residue in the aluminium trays.
[30] If Sgt. Gray’s proposed evidence was that the residue contained some opium from the felt-like cloth, then this evidence would add nothing to the existing trial evidence of the total weight of the felt-like cloths containing opium.
[31] Even if the experiment was correct scientifically and properly performed (which is unknown), it required the expertise and training of Sgt. Gray from his years in drug enforcement and training other officers on drug matters to decided what experiment to perform and carry out this experiment.
[32] Either way, this is expert evidence.
Conclusion
[33] Sgt. Gray’s evidence is inadmissible.
Ricchetti, J.
Date: August 20, 2018