COURT FILE NO.: CRIM J(F) 1876/16
DATE: 20180209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
James Clark, for the Crown
- and -
GREG GUTHRIE and DELON GRIFFITH
Paul Cooper and Lalitha Ramachandran for Greg Guthrie
Steven Stauffer for Delon Griffith
HEARD: May 9, 2017
RULING RE: RELEVANCE OF DET. JEFFREY ROSS – EXPERT WITNESS WITH RESPECT TO THE DRUG TRADE
Fragomeni J.
[1] The Crown called Det. Jeffrey Ross to give expert evidence with respect to the drug trade and in particular testimony relating to prices, paraphernalia and equipment used. Det. Ross had prepared a report regarding the significance to the drug trade of some of the materials located at Greg Guthrie’s residence as a result of the execution of a search warrant at his residence. Det. Ross also provided information on the pricing of cocaine in Toronto at the relevant time when these charges arose.
[2] The qualifications of Det. Ross to give this expert evidence was conceded by the defence.
[3] The issue of relevancy arose when Det. Ross was shown Exhibit 44 and asked to give his opinion about the items included in Exhibit 44 and their significance to the drug trade.
[4] The items contained in Exhibit 44 included the following:
- Scale
- Cellophane bags
- Carbon paper
- Elastics
- Vacuum sealer
[5] Also seized during the search of Mr. Guthrie’s home was over $50,000 in cash.
POSITION OF THE DEFENCE
[6] The defence submitted that the testimony relating to the paraphernalia of trafficking is not relevant to the charges before the court, namely three counts of importing cocaine and one count of conspiracy to import cocaine.
[7] The defence submits that this evidence is bad character evidence and it is too prejudicial to be admitted. The admission of this evidence would result in the court engaging in propensity reasoning.
POSITION OF THE CROWN
[8] The Crown submits that this evidence is relevant and material to the charges relating to Mr. Guthrie. It is relevant to the issue of Mr. Guthrie’s involvement in the drug importations. It is a common sense inference that importers of large amounts of cocaine do so for sale and distribution. The items found in Exhibit 44 are the tools of the trade.
[9] The Crown also submits that the testimony is relevant to motive and identity, especially in light of the defence theory that those importations are being arranged by Mr. Bernard Brissett and possibly others and not Mr. Guthrie.
ANALYSIS AND CONCLUSION
[10] I agree with the Crown’s position on this issue. The common sense, logical and reasonable inference is that importers of large quantities of cocaine do so for the purpose of distribution. Large amounts of cocaine are not kept for personal use. As such paraphernalia consistent with the drug trade and commonly used by trafficking is relevant to the charges before the court.
[11] In Watt’s Manual of Criminal Evidence, 2016, the fundamental principles of relevance is set out as follows:
§3.0 - Relevance
Commentary
Relevance is not a legal concept, rather, a matter of everyday experience and common sense. It is not an inherent characteristic of any item of evidence, rather, exists as a relation between an item of evidence and a proposition of fact that its proponent seeks to establish by its introduction. In determining relevance, context is critical.
An item of evidence is properly characterized and rejected as irrelevant if it is not probative of the fact a party seeks to establish by its introduction by reason of its natural, common sense connection with that fact. An item of evidence is relevant where it is probative of the fact a party seeks to establish by its introduction through the same process of reasoning.
Any two facts to which the term “relevant” is applied, are so related to each other that, according to the common course of events, one, either taken by itself or together with or in the context of other facts, proves or renders probable the past, present, or future existence or non-existence of the other.
Case Law
General Principles
R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, 12 C.R> (3d) 10, 48 C.C.C. (2d) 1 – Evidence is irrelevant, hence admissible, if it has no probative value.
Relevance is assessed in the context of the entire case and the positions of counsel. It requires a determination whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence or non-existence of a material fact, more probable than it would be otherwise. If it does, the fact is relevant and prima facie admissible.
The cogency of the inferences that may be drawn from the fact plays no part in the inquiry into relevancy, which is assessed in the context of the entire case and the positions taken by P and D.
R. v. Underwood (2002), 2002 ABCA 310, 9 C.R. (6th) 354, 170 C.C.C. (3d) 500 (Alta. C.A.) – Evidence is not relevant just because it can be interpreted in more than one way, or can support more than one inference. To establish relevance, the proponent need only show that one possible interpretation of the evidence is relevant to an issue at trial. The strength or weight of the evidence is for the trier of fact to decide.
R. v. Luciano (2011), 2011 ONCA 89, 267 C.C.C. (3d) 16 (Ont. C.A.) – Relevance is not an inherent characteristic of any item of evidence, rather exists as a relation between an item of evidence proposed for admission and a proposition of fact that the proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense and is assessed in the context of the entire case and the positions of counsel.
An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than the fact would be without the evidence. An item of evidence does not cease to be relevant, or become irrelevant, because it can support more than one inference.
R. v. Pilon (2009), 2009 ONCA 248, 64 C.R. (6th) 356, 243 C.C.C. (3d) 109 (Ont. C.A.) – Relevance is assessed by reference to the material issues in a case and in the context of the entirety of the evidence and the positions of the parties.
[12] In Regina v. Bengert et al. (No. 2), (1979) 1979 CanLII 3006 (BC SC), 47 C.C.C. (2d) 552 (B.C.S.C.) the court noted the following at pgs. 553 and 554:
My view is that the Crown is entitled to offer evidence about the way in which the cocaine industry operates. That is as much a fact as the way in which any other industry operates. The jury is entitled to hear that evidence. Then they can weigh against that background the evidence of the operations of the accused and the methods used by the accused in order to determine whether there was, as alleged, a conspiracy on a vast scale entailing the supplying of South American cocaine to the Canadian market. The jury is entitled therefore to hear evidence about the extent of that market, the prices obtainable in that market and the means ordinarily used to reduce cocaine into marketable quantities and to distribute it. The jury will bear that evidence in mind in examining the evidence adduced here against the accused, in order to determine the scope and scale of the conspiracy.
[13] In Morris v. The Queen, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, the court set out the following at pgs. 191 – 193:
In my view, an inference could be drawn from the unexplained presence of the newspaper clipping among the possessions of the appellant, that he had an interest in and had informed himself on the question of sources of supply of heroin, necessarily a subject of vital interest to one concerned with the importing of the narcotic. It is this feature which distinguishes the case at bar from Cloutier v. The Queen, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709, where the purpose of the impugned evidence was to show that the accused was a user of marijuana and had the necessary mens rea for the offence of importing. Pratte J. dealt with the matter in these words, at p. 734:
The question to be resolved in the case at bar is whether the fact that the accused uses marijuana creates a logical inference that he knew or ought to have known that the dresser contained a narcotic at the time it was imported. To me there is no connection or nexus between either of these two facts.
In the case at bar the connection of nexus, absent in the Cloutier case, was clearly present. Depending on the view of the trier of fact and the existence of other evidence, an inference could possibly have been drawn or could have been supported to the effect that preparatory steps in respect of importing narcotics had been taken or were contemplated.
The evidence of the newspaper clipping is similar in nature to the cheque forms of certain banks and the list of banks found in possession of the accused and admitted in evidence on a charge of fraudulently endorsing and cashing a cheque in R. v. Gaich (1956), 1956 CanLII 520 (ON CA), 24 C.R. 196 (Ont. C.A.), or the list of burgled premises found upon one of the accused which was admitted in evidence on a charge of unlawful possession of house-breaking implements in R. v. Hannam, 1963 CanLII 728 (NS SC), [1964] 2 C.C.C. 340 (N.B.C.A.) Other cases which have dealt with this issue are: Picken v. The King, 1938 CanLII 21 (SCC), [1938] S.C.R. 457; R v. Mustafa (1976), 65 C.A.R. 26; R. v. Kanester, 1966 CanLII 544 (BC CA), [1966] 4 C.C.C. 231 (B.C.C.A.); R. v. Jesseau and Breen (1961), 1961 CanLII 471 (BC CA), 129 C.C.C. 289 (B.C.C.A.); and an Australian case, R. v. Hull, [1902] Q.S.R.1.
I agree that the probative value of such evidence may be low, especially since the newspaper article here concerns the heroin trade in Pakistan rather than in Hong Kong, which was apparently the source of the heroin involved in this case. However, admissibility of evidence must not be confused with weight. If the article had concerned the heroin trade in Hong Kong, it would of course have had greater probative value. If the article had been a manual containing a step-by-step guide to importing heroin into Vancouver from Hong Kong, the probative value would have been still greater. The differences between these examples, however, and the facts at bar are differences in degree, not kind. In other words, the differences go to weight and not to admissibility.
The weight to be given to evidence is a question for the trier of fact, subject of course to the discretion of the trial judge to exclude evidence where the probative value is minimal and the prejudicial effect great.
[14] The facts in the case at bar are even stronger than the nexus established in Morris. In Morris the court noted that the probative value of the evidence may be low but that the weight to be afforded the evidence was for the trier of fact.
[15] The proposed expert testimony in the case at bar is highly probative. Evidence is not prejudicial because it is not helpful to the defence, it is prejudicial if there is a likelihood that the jury or trier of fact could misuse the evidence. A jury could engage in moral or reasoning prejudice which would be an improper use of evidence. Of course as Justice Watt set out in R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302 at paras. 67 - 69 those issues have a different context in a judge alone trial. At paras. 67 - 69 Justice Watt said:
67 The potential prejudicial effect of evidence of similar acts includes both moral and reasoning prejudice. Moral prejudice, the potential stigma of "bad personhood", refers to the risk of an unfocussed trial and a wrongful conviction, a verdict based on prejudice as a surrogate for proof: Handy at paras. 100 and 139. Reasoning prejudice has to do with the distraction of the trier of fact from properly focussing on the charge(s), aggravated by the consumption of time in dealing with a multiplicity of incidents: Handy at para. 144.
68 This case involves the invocation of similar act principles across counts in a multi-count indictment. The evidence relating to each count is relevant to and admissible in proof of the allegation contained in that count. Each incident is of equivalent gravity and of minimal inflammatory potential. This is not a case, in other words, in which conduct extrinsic to the crimes alleged in the indictment is enlisted as evidence of similar acts to prove what is alleged, and lugs with it inflammatory claims of greater gravity or moral depravity.
69 In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduce significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial. The conduct relied upon as evidence of similar acts was not contested, although the appellant's participation and the legal characterization of the crimes committed were controversial.
[16] I am satisfied that the paraphernalia evidence is relevant, material and probative. Its admission will not result in the court engaging in moral or propensity reasoning. The strength of this evidence and the weight to be attached to it can only be determined within the context of the entire body of evidence called at trial and the positions put forward by counsel.
[17] The fact that other inferences may be available with respect to those items can be explored in cross-examination and as set out in Underwood evidence is not irrelevant just because more than one interpretation is available. The strength or weight of the evidence is for the trier of fact to decide within the context of the totality of the trial evidence.
Fragomeni J.
Released: February 9, 2018
COURT FILE NO.: CRIM J(F) 1876/16
DATE: 20180209
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
GREG GUTHRIE and DELON GRIFFITH
RULING RE: RELEVANCE OF DET. JEFFREY ROSS – EXPERT WITNESS WITH RESPECT TO THE DRUG TRADE
Fragomeni J.
Released: February 9, 2018