Court File and Parties
Court File No.: CR-16-3592-0000 Date: 2018-09-14 Superior Court of Justice - Ontario
Re: R. v. Mohamad Mohmoud Charara
Counsel: Richard L. Pollock, Counsel for the Crown Laura L. Joy, Counsel for the Accused and Applicant
Heard: July 5, 2018
Before: Justice C. M. Bondy
Endorsement
A. Introduction
[1] This was an application by the Crown to have Constable Philip Kolody (“Constable Kolody”) of the Windsor Police Service, qualified as an expert.
[2] The accused, Mohamad Mohmoud Charara (“Mr. Charara”), was charged with possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (the “CDSA”); possession of crack cocaine for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and possession of cannabis marijuana, contrary to s. 4(1) of the CDSA. Count three, relating to the possession of cannabis marijuana, was withdrawn by the Crown so the trial proceeded only on the basis of the first two counts.
[3] Defence counsel opposed the qualification of Constable Kolody as an expert. The primary focus of her objection was alleged bias and lack of impartiality.
B. Analysis
1) Introduction
[4] Expert evidence is opinion evidence and, therefore, presumptively inadmissible. The burden of proof is upon the party seeking to admit the evidence, and that burden is to be satisfied on the balance of probabilities.
[5] There are three necessary steps when considering the admissibility of expert evidence. They are:
a) identifying the scope and purpose of the evidence; b) the examination of the threshold requirements for admissibility; and c) the discretionary gatekeeping step.
[6] To be clear, admissibility of expert evidence is not an “all-or-nothing” proposition. “The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to frame that opinion”: see R. v. Abbey, 2009 ONCA 624, 97 O.R. (3D) 330, at para. 63.
[7] I will examine each step in turn.
2) The proposed scope and purpose of the evidence
[8] Before deciding admissibility, a judge must determine the nature and scope of the proposed expert evidence thereby setting the boundaries of the proposed evidence. Also, where necessary, the judge may prescribe the language in which the expert’s opinion may be proffered so as to minimize harm to the trial process: see Abbey, at para. 62.
[9] In this case the defence admits that certificate of analysis number 1421475T is conclusive that the 13.2 g of white powder in Exhibit “7” is cocaine. The defence also admits that certificate of analysis number 1421476T is conclusive that the 24.7 g of white powder in Exhibit “9” is cocaine, but not that it is crack cocaine.
[10] The Crown seeks to qualify Constable Kolody as an expert with respect to the following issues:
a. The price of both cocaine and crack cocaine; b. The indicia which distinguish personal use from trafficking, in both cocaine and crack cocaine; c. The physical characteristics of both cocaine and crack cocaine, and the differences between cocaine and crack cocaine.
3) The threshold requirements for admissibility
[11] The preconditions or threshold requirements were laid down by the Supreme Court of Canada in R v. Mohan, [1994] 2 S.C.R. 9. That criterion was reformulated by Doherty J.A. in Abbey. The most recent reformulation appears in White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182 at paras. 23 & 32. The criteria are as follows:
a) logical relevance; b) necessity to assist the trier of fact; c) absence of other exclusionary rules d) proper qualification including the witness being willing and able to provide evidence as to impartiality, independence, and lack of bias; and e) for opinions based on novel or contested science or science used for no purpose the reliability of the underlying science for that purpose.
[12] The inquiry into compliance with the preconditions to admissibility is a rules-based analysis that will yield “yes” or “no” answers. Evidence that does not meet all of the preconditions to admissibility must be excluded and the trial judge need not address the more difficult and subtle considerations that arise in the “gatekeeper” phase of the admissibility inquiry: see Abbey at para. 78.
[13] I will review each of the first four criteria in turn. The fifth criteria, related to novel science, does not apply.
a) Relevance
[14] Relevance has two very different types in legal matters. Logical relevance is a requirement that the evidence has a tendency, as a matter of human experience and logic, to make the existence or non-existence of a fact more or less likely than it would be without that evidence: see Abbey at para. 82; and R. v. J.-L.J., [2000] 2 S.C.R. 600, at para. 47. Legal relevance requires logical relevance but also that the evidence be sufficiently probative to justify admission: see Abbey at para. 83; Mohan at para. 18. At the threshold stage, the issue is logical relevance: see White Burgess at para. 23 and Abbey at para. 47. Legal relevance is considered at the gatekeeper’s stage below: see Abbey at para. 84.
[15] I begin with the observation that it is unclear to me why the indictment specifies crack cocaine. Section 2(2) of Schedule I to the CDSA refers to: “Coca (Erythroxylon), its preparations, derivatives, alkaloids and salts, including: cocaine (benzoylmethylecgonine)”. In other words, the prohibited substance is cocaine. Crack cocaine is simply a form of cocaine. It necessarily follows that the certificate of analysis would only be expected to confirm the presence of the prohibited substance; that is, cocaine. Notwithstanding, in this case the Crown has not sought to amend the indictment to show that the substance in question as cocaine rather than crack cocaine, but rather seeks to prove the substance in Exhibit 9 is crack cocaine.
[16] That said, once the indictment is particularized, the Crown is generally required to prove those particulars. Particulars are provided so that the accused can be reasonably informed of the transaction alleged against them, thereby giving the possibility of a full defence and fair trial: see R. v. Saunders, [1990] 1 S.C.R. 1020, at p. 1023; R. v. Côté, [1978] 1 S.C.R. 8 at p. 13. It follows that once the Crown has particularized a narcotic in a charge the accused cannot be convicted of a charge other than the one specified to be proven: see Saunders at p. 1023; R. v. Morozuk, [1986] 1 S.C.R. 31, at p. 37.
[17] I have yet to hear argument on the issue, so at this stage it is not entirely clear whether it is being asserted that crack cocaine and cocaine are different narcotics, or merely different kinds of the same narcotic.
[18] I say that because in Morozuk, the indictment alleged possession of marijuana, which is a kind of cannabis, yet what was seized was cannabis resin. Of interest, each is a separately listed derivative in s. 1 of Schedule II.
[19] Similarly in Saunders, the indictment specified heroin. Heroin is a derivative of opium, which is specifically prohibited by s. 1 of Schedule I. Cocaine is a derivative of coca leaves, which is specifically prohibited by s. 2 of Schedule I. In other words, they were different narcotics.
[20] By contrast, in this case the narcotic is coca but only cocaine is listed as a derivative of coca. There is no separate listing for crack cocaine. The Crown maintains that this is because cocaine and crack cocaine are the same substance that has simply been processed in two different ways. As a result, there may well be an argument from the Crown that any prejudice to Mr. Charara would be minimal.
[21] Given that I have not yet heard argument on this issue, it would be premature for me to make a finding as to whether the Crown must prove the substance at issue is crack cocaine because of the particularisation of that substance in the indictment.
[22] That said, given the possibility of such a finding, I conclude that evidence as to the difference between cocaine and crack cocaine is potentially relevant to a central issue at trial. Further, the Crown maintains that crack cocaine is more addictive than cocaine and, as a result, proof of crack cocaine may be an aggravating factor for the purposes of sentencing. As such, I again find that the difference between cocaine and crack cocaine is potentially relevant to a central issue.
b) Necessity to Assist the Trier-of-Fact
[23] In Mohan, at p. 23, Sopinka J. states:
What is required is that the opinion be necessary in the sense that it provide information “which is likely to be outside the experience and knowledge of a judge or jury”: as quoted by Dickson J. in R v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature.
[24] To be necessary the evidence must be more than merely “helpful” but “absolute necessity” is not required: see R. v. D.(D.), [2000] 2 S.C.R. 275 at para. 21.
[25] In this case I find the distinction between crack cocaine and cocaine to be outside of my knowledge and experience. Simply put, given the illegal nature of those substances, they are not things which most triers-of-fact would be expected to be familiar.
c) Absence of Other Exclusionary Rules
[26] I can think of no other exclusionary rule, nor was one suggested by either counsel.
d) Proper qualification, including the witness being willing and able to provide evidence as to impartiality, independence, and lack of bias
i. Qualifications
[27] Constable Kolody’s curriculum vitae is both extensive and impressive.
[28] He was involved in the Provincial Anti-Violence Intervention Strategy (PAVIC) and Drugs and Gun Enforcement Unit (DIGS Unit) from September 2011 until January 2017. He has been involved in 244 drug investigations. In 105 of those, he was assigned as the exhibits officer. He has also been involved in 45 investigations that resulted in the seizure of cocaine, and 41 investigations that resulted in the seizure of crack cocaine. He has also, in an undercover capacity, purchased cocaine on eight occasions, crack cocaine on another eight occasions, and acted as a handler for covert operators who purchased cocaine and crack cocaine. Constable Kolody has interviewed over 60 people who actively traffic, or have trafficked, in controlled substances including cocaine and crack cocaine, and 120 people who actively use, or have once used, controlled substances including cocaine and crack cocaine.
[29] Constable Kolody has also taken training related to drugs and related issues through the Ontario Police College, the United States Drug Enforcement Agency facilitated by the Michigan State Police, and the Criminal Intelligence Service of Ontario.
[30] In addition, Constable Kolody has delivered a number of drug lectures to audiences including police officers attending courses at the Criminal Intelligence Service of Ontario, Windsor Regional Hospital Western campus for staff at the psychiatric unit, new police recruits returning from the Ontario Police College, students of the St. Clair College Police Foundation program, and the Windsor-Essex Children’s Aid Society.
[31] Furthermore, Constable Kolody has prepared 40 expert reports related to drug seizures, nine of which related to cocaine and 12 of which related to crack cocaine. He was also qualified as an expert in R. v. Yasir Aden & Bobby Boating.
[32] On the basis of that curriculum vitae, I have no difficulty finding that Constable Kolody qualifications meet the necessary standard.
ii. Impartiality, Independence, and Lack of Bias
Introduction
[33] Independence and impartiality bear not only on the weight but also on the admissibility of the evidence: see White Burgess at paras. 40 & 45. The expert must be fair, objective and nonpartisan, and be aware of this primary duty to the court, and also willing and able to carry it out: see White Burgess at para. 46. Once the expert attests or testifies under oath to this effect, the burden shifts to the party opposing the admission of the evidence to demonstrate that there is a real concern as to whether the expert is unable or unwilling to comply with a duty: see White Burgess at para. 48. “[E]xclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence”: see White Burgess at para. 49. The concept of apparent bias is not a relevant consideration here, the question is whether any relationship or interest between the expert and the party calling the expert would result in that expert being unable or unwilling to carry out their primary duty to the court: see White Burgess at para. 50.
[34] In this case Constable Kolody is a police officer of the Windsor Police Service. Accordingly, during the voir dire, Constable Kolody was asked on two separate occasions and in several different ways if he had participated in the investigation for this case. He said that he had not.
[35] Defence counsel put a report to Constable Kolody that indicated that he was involved in a traffic stop of Mr. Charara, which had occurred on July 27, 2017, and had been contacted to facilitate the execution of a general warrant. That warrant was for the purpose of photographing Mr. Charara’s tattoo in preparation for this trial. Once reminded, Constable Kolody candidly acknowledged having participated in that traffic stop.
[36] This evidence raises two issues. The first goes to credibility, and the second to impartiality.
Credibility
[37] As to credibility, I begin with the observations that the questions of defence counsel were very general. Constable Kolody was asked if he had ever had any dealings with Mr. Charara, if he knew Mr. Charara, or if he had ever had any professional dealings with Mr. Charara. As a result, I agree with the observation by defence counsel that there is an apparent discrepancy in Constable Kolody’s evidence.
[38] When the apparent inconsistency was put to Constable Kolody he testified that he had not answered the questions with an intention to mislead the court. There were two explanations given by Constable Kolody, and they were not mutually exclusive.
[39] The first was that he understood the question to mean whether or not he knew Mr. Charara or had any involvement in the case at the time that he made his report. The other was that the traffic stop did not enter his mind at the time that the question had been asked, probably because of the minor role that he had played in that stop, and because of the time that had passed between then and now.
[40] I believe Constable Kolody for the following reasons.
[41] The first is that, consistent with Constable Kolody’s evidence, I had been left with the impression by his evidence that he was speaking of the time that he had completed his report. That was because when the questions were posed to him I understood him to have answered that “I had never met Mr. Charara”, and not “I have never met Mr. Charara”. The tape was played back in open court and although it was difficult to say with precision what the word was, I found that it was most likely “had” and not “have”.
[42] The second is that I found it believable that the traffic stop could have slipped Constable Kolody’s mind. I say that because of the nature of his involvement. Constable Kolody was not at the time working in the DIGS Unit, nor was he in any way involved in or connected with the investigation.
[43] The third is that given Constable Kolody’s very minimal role in the traffic stop conducted in July 2017, he had nothing to gain by lying about having been there. Constable Kolody was working in uniform and was in a fully-marked police car as a training officer. Approximately 15 minutes before the traffic stop was initiated, he was contacted and asked to be on the lookout for a van being driven by Mr. Charara bearing licence plate number CCDL 643. That was the first point in time that Constable Kolody had any connection whatsoever with the traffic stop.
[44] It was his evidence that the DIGS officers were driving an unmarked car and that, for safety reasons, traffic stops are generally not conducted with unmarked cars. It was by coincidence that Constable Kolody’s fully-marked police car was in the same area that Mr. Charara was, and that he was asked to assist with the use of his emergency lights. It was not entirely clear whether Constable Kolody even talked to Mr. Charara that day. What was clear is that any interaction between him and Mr. Charara was quite brief. What was also clear is that Constable Kolody was in no way involved with the general warrant or the execution of that warrant other than to facilitate the traffic stop.
[45] Mr. Charara testified at the voir dire. His evidence as to what happened that day was not entirely the same as that of Constable Kolody. Mr. Charara testified as to a specific recollection that it was Constable Kolody who approached the driver’s side window and asked for his driver’s licence. He also testified that the police officers with the DIGS Unit arrived approximately one minute after Constable Kolody and his partner. On the other hand, it was Constable Kolody’s recollection that both of the police cars arrived at the same time. Constable Kolody testified to a recollection of having been on the passenger side of the van and observing Mr. Charara in the driver seat. When asked if he could have at one point been on the driver’s side of the van at Mr. Charara’s window, Constable Kolody said that he could not recall but acknowledged that it was possible. Constable Kolody also testified that if he had known that the traffic stop was important for any reason then he would have taken far better notes than he did.
[46] In the end, I did not find any difference in the recollection of those events by Mr. Charara and Constable Kolody to be of any consequence. I did not have any reason to disbelieve Mr. Charara based upon the brief evidence given by him on the voir dire.
[47] Presuming Mr. Charara’s version of events to be correct, Constable Kolody’s evidence as to where he was positioned in relation to the van is not necessarily inconsistent, given his acknowledgement that it was possible that at one point he had approached the driver’s side window of the van but that he simply could not remember having done so.
[48] Further, I did not find the different recollections of when the DIGS officers had arrived, that was approximately a 60 second difference, to be of any consequence given that approximately a year has passed since those events. Finally, I accepted Constable Kolody’s evidence that he could not recall specifics of the day. I also accepted his evidence that he had not made more thorough notes because he did not attach significant importance to the traffic stop. I find that the lack of importance he attached to the traffic stop is consistent with a lack of meaningful involvement in the execution of the warrant.
[49] The sole purpose for his involvement was to conduct a traffic stop. His involvement to conduct a traffic stop was a coincidence, in that Mr. Charara just happened to be in the area where Constable Kolody had been assigned to work that day. Crown Counsel described Constable Kolody’s participation in that event as “fleeting and incidental to something else he was not a party to.” I find that description accurate.
[50] Finally, defence counsel suggested that I should not believe Constable Kolody’s evidence that he had stopped the van based only upon its description and licence number. It was defence counsel’s suggestion that Constable Kolody had stopped the van because he recognized Mr. Charara as the driver. That proposition was based upon the fact that the van was a rented van and, accordingly, not registered in Mr. Charara’s name. Constable Kolody denied that suggestion.
[51] I do not find that that argument has merit. Constable Kolody’s evidence was that he had been given the description of the van and its licence plate number. It follows that it does not matter who the registered owner of that van was. Constable Kolody also testified that July 27, 2017 was the first time that he had seen Mr. Charara in person. I have no reason to disbelieve that evidence.
[52] To be clear, Constable Kolody’s credibility remained a live issue throughout his testimony, but taken as a whole, on the evidence before me, and for purposes of this voir dire, I found Constable Kolody to be credible.
Impartiality
[53] Defence counsel maintains that Constable Kolody is biased and lacks impartiality because he was involved in the case as an investigating officer. She relies upon the Ontario Court of Appeal decision in R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493.
[54] The issue in such cases is whether there is a “realistic concern” that Constable Kolody is unwilling or unable to comply with the duty; the proffering party must rebut this concern on a balance of probabilities: see McManus at para. 66. In assessing the fact situation, I must consider whether Constable Kolody’s relationship with the investigation would result in him being unable or unwilling to carry out his primary duty to provide fair, non-partisan, and objective assistance to the court: see McManus at para 67. In other words, while involvement in the investigation will always raise a red flag as to the impartiality of the proposed expert, there is no general rule precluding expert evidence on the ultimate issue in such cases: see R. v. Solleveld, 2014 ONCA 418, 120 O. R. (3d) 678, at para. 18; R. v. Bryan, 175 C.C.C. (3d) 285, at para. 16. Rather, in an assessment of whether or not Constable Kolody’s involvement raises a “realistic concern” of potential bias or lack of impartiality, the analysis is a fact-driven exercise: see R. v. Tang, 2015 ONCA 470, at para. 6.
[55] In this case, Constable Kolody was asked directly whether he could testify in an unbiased and impartial manner. He testified that he could. His answer to that question was unqualified.
[56] Constable Kolody explained that his report had been completed on September 21, 2015. His involvement in the traffic stop had occurred two years subsequent to the completion of the report he prepared for this trial, and as a result his brief encounter with Mr. Charara in July 2017 did not impact his report. Constable Kolody also explained that he was not even working with the DIGS Unit at the time that the traffic stop had occurred.
[57] Constable Kolody further explained that although he was a member of the DIGS Unit at the time that he created the report, that unit has two separate teams. Expert report requests are initiated by the Federal Crown, and he is generally assigned to prepare reports regarding drugs seized by the other team. That was the case in this situation. Constable Kolody testified that although he knows the members of the other team, he does not work with them regularly. He also testified that he did not have any direct communication with any of the officers involved in the investigation. All of the information required for, and relied upon in, the report came from the scene photos and reports of the officers involved in the investigation, which he has available to him through the police computer system.
[58] Again, I have no reason to disbelieve that evidence.
[59] I have no reasonable doubt that Constable Kolody had not had any contact with Mr. Charara, nor that he did not know Mr. Charara at the time that his report was completed.
[60] I reiterate my finding above that Constable Kolody’s involvement in the traffic stop in 2017 had nothing to do with this investigation.
[61] Evidence as to Constable Kolody’s ability to create informational reports in the past is also of assistance in assessing his ability to do so in this case. The other reports authored by Constable Kolody are consistent with an objective, unbiased approach. He has prepared 40 such reports where at least one of the issues to be addressed was whether the quantity of the substance seized would support a charge for possession for the purpose of trafficking. In 11 of those reports, or 27.5% of the time, Constable Kolody concluded that the quantity of the substance seized would not support such a charge. That data is consistent with a police officer who assesses in an unbiased and objective fashion rather than simply rubberstamping at the request of fellow officers.
[62] Prior to leaving the issue, I note that I must still consider any concerns about the expert’s independence and impartiality when weighing the evidence at the gatekeeping stage: see White Burgess at para. 54.
4) Conclusions as to the threshold requirements for admissibility
[63] For all of the above reasons, I find that the proposed evidence from Constable Kolody meets the threshold requirements for admissibility. I conclude that it has logical relevance, is necessary to assist the trier-of-fact, that there are no other applicable exclusionary rules, and that Constable Kolody is properly qualified, as an expert including without limitation, for his ability to provide evidence with impartiality, independence, and a lack of bias. Accordingly, I find it appropriate to consider and apply the discretionary gatekeeping function of the court at this stage of the analysis.
5) The discretionary gatekeeping function of the court
[64] “At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting evidence in order to decide whether the potential benefits justify the risks”: see White Burgess at para. 24.
[65] The benefit side requires a consideration of the probative potential of the evidence and the significance of the issue to which it relates. An examination of probative value also includes a consideration of reliability as to the subject matter of the evidence, the methodology used by the proposed expert, the expert’s expertise, and the extent to which the expert is shown to be impartial and objective: see Abbey at para. 87. The cost side addresses the consumption of time, the risk of overly complicating the proceedings, and potential for prejudice and confusion: see Abbey at paras. 90 & 91.
[66] In summary, factors considered at this cost/benefit stage include relevance, necessity, reliability, and the absence of bias: see White Burgess at para. 54. I will review each in turn.
a) Relevance
[67] I reiterate that at this stage it is legal relevance that is considered. As said above, legal relevance requires logical relevance, but also that the evidence be sufficiently probative to justify its admission.
[68] I find that the evidence proposed to be introduced is probative because it goes to the very heart of the issue of whether the substance in certificate of analysis number 1421476T is simply cocaine or crack cocaine. It also goes to the heart of the issue of whether the quantities are consistent with trafficking, and the price of cocaine and crack cocaine.
b) Necessity
[69] “[T]he necessity requirement exists “to ensure that the dangers associated with expert evidence are not lightly tolerated” and that “[m]ere relevance or ‘helpfulness’ is not enough”: see White Burgess at para. 21; citing D.D. at para. 46.
[70] I reiterate my comments above that I do not have the necessary knowledge to distinguish between cocaine and crack cocaine, nor would most judges. Similarly, I have no way of knowing what quantities of each are consistent with trafficking or the price of either. Accordingly, I find that the evidence is necessary for the Crown to prove the particulars of the offence as specified in the indictment.
c) Reliability
[71] In J. (L.-J.), the Supreme Court adopts the “reliable foundation” four factored approach used in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993) for testing the reliability of scientific expertise: see paras. 33-34.
[72] Constable Kolody’s expertise, however, is not scientific in nature. That raises two issues.
[73] The first issue is that the case law tends to support the proposition that a proper scientific analysis of a suspected substance is essential, and as such an opinion of a layperson will generally not substitute for a certificate of analysis: see R. v. Grant, 2001 ABCA 252, at para. 2. Accordingly, it is rare but not impossible for a trial judge to make a finding that a substance is a particular narcotic in the absence of a certificate of analysis: see R. v. Douglas, 2017 ONCA 609, at para. 11.
[74] This case is distinguishable from those cases for three important reasons.
[75] The first reason is that in this case there is a certificate of analysis demonstrating that the substance in question is a controlled substance.
[76] The second reason is that the issue in this case is not about the nature of the substance but rather the form of the substance. I reiterate that crack cocaine is not listed separately in s. 2 of Schedule I of the CDSA. As a result, I conclude that the testimony of someone like Constable Kolody may be the only practical way for the Crown to get this important evidence before the court.
[77] The third issue, related to the non-scientific nature of the expertise, is that in Abbey, the Ontario Court of Appeal found that the Daubert factors were not applicable because the expert’s opinion was not the product of scientific inquiry, but rather specialized knowledge gained through experience and specific training. As was observed by Doherty J.A., the question is whether Constable Kolody’s research and experience permitted him to develop a specialized knowledge about cocaine and its derivative, crack cocaine.
[78] The following non-exhaustive list of factors relevant to reliability is delineated at para. 119 of the decision in Abbey:
- To what extent is the field in which the opinion is offered a recognized discipline, profession or area of specialized training?
- To what extent is the work within that field subject to quality assurance measures and appropriate independent review by others in the field?
- What are the particular expert’s qualifications within that discipline, profession or area of specialized training?
- To the extent that the opinion rests on data accumulated through various means such as interviews, is the data accurately recorded, stored and available?
- To what extent are the reasoning processes underlying the opinion and the methods used to gather the relevant information clearly explained by the witness and susceptible to critical examination by a jury?
- To what extent has the expert arrived at his or her opinion using methodologies accepted by those working in the particular field in which the opinion is advanced?
- To what extent do the accepted methodologies promote and enhance the reliability of the information gathered and relied on by the expert?
- To what extent has the witness, in advancing the opinion, honoured the boundaries and limits of the discipline from which his or her expertise arises?
- To what extent is the proffered opinion based on data and other information gathered independently of the specific case or, more broadly, the litigation process?
[79] In this case, Constable Kolody’s knowledge is gained from both professional experience and specialized education. He has, for many years, worked with the Windsor Police Service creating reports that have been relied on. He has been qualified as an expert by the Ontario Superior Court on one previous occasion. His opinions are based on data collected from other police officers working in the area, drug users, drug traffickers, and others involved with drugs. It follows that the opinion proposed to be given by Constable Kolody will be based on information gathered independently of this particular case.
[80] Consistent with those observations, the case law tends to recognize that police officers can, through experience and training, possess expertise with respect to various characteristics of drugs and give testimony in that regard without being qualified as an expert: see R. v. MacKenzie, [2013] 3 S.C.R. 250, at para. 56; R. v. Polashek, 45 O.R. (3d) 434, at p. 440 [cited at O.R.]. A police officer may be able to identify a substance like cocaine through factors such as smell, appearance, texture, colour, packaging, and other indicia observed through experience gained in the course of their duties as a police officer. That is precisely what Constable Kolody proposes to do.
[81] For all of these reasons, I find that the proposed evidence meets the necessary reliability threshold.
d) Absence of Bias
[82] I reiterate that Constable Kolody was steadfast in his testimony and that he could testify in an impartial, unbiased, and objective fashion.
[83] That proposition finds support in the fact that in 11 of the 40 reports that he has created to date, Constable Kolody has concluded that the evidence gathered did not support a charge of possession for the purpose of trafficking.
[84] Defence counsel maintains that Constable Kolody’s objectivity has been compromised by his involvement in this case by having conducted a traffic stop on Mr. Charara in July 2017. As said above, I do not find that to be an accurate assessment of the traffic stop performed by Constable Kolody. There are two overarching reasons. The first is that his involvement in the traffic stop was minimal and unrelated to either the general warrant or the execution of that warrant. He was not a member of the DIGS Unit, nor was he otherwise working with them at that point in time. He had received a telephone call approximately 15 minutes prior to the traffic stop and his only involvement was related to the fact that he was driving a marked police cruiser. Importantly, that brief contact had taken place two years after Constable Kolody had completed his report. It necessarily follows that that brief encounter did not impact that report.
e) Conclusions as to the discretionary gatekeeping function of the court
[85] Having considered the relevance, necessity, reliability, and absence of bias, of Constable Kolody’s evidence, I conclude that the potential benefits outweigh the potential costs of admitting the evidence. Accordingly, I find the evidence ought to be admitted.
[86] To be clear, this decision relates only to the admissibility of the evidence. The weight to be given to the evidence will be decided in the usual fashion once the evidence has been presented, and arguments heard from counsel in that regard.
C. Order
[87] For all of the above reasons, the Crown’s application is granted. Constable Philip Kolody may testify as an expert offering an opinion as to:
a. The price of both cocaine and crack cocaine; b. The indicia which distinguish personal use from trafficking in both cocaine and crack cocaine; and c. The physical characteristics of both cocaine and crack cocaine, and the differences between cocaine and crack cocaine.
“original signed and released to parties by Bondy J.”
Justice C. M. Bondy