OSHAWA COURT FILE NO.: CR-18-14955
DATE: 20200130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER PARK
Defendant
Joshua Frost, for the Crown
Zaire Puil, for the Defendant
HEARD: January 21, 22, 2020
RULING ON ADMISSIBILITY OF EXPERT EVIDENCE
EDWARDS J.:
Introduction
[1] Mr. Park is charged with one count each of Possession of Cocaine and Fentanyl for the Purpose of Trafficking. He also faces one count of Possession of Oxycodone pills.
[2] The Crown seeks to qualify Sergeant Brad Corner (“Corner”) of the Durham Regional Police Service (“DRPS”) as an expert witness in this drug trial, to provide opinion evidence on the sale and distribution of cocaine and fentanyl including pricing, use, chain of distribution and modus operendi, including indicia of possession for the purpose of trafficking in both fentanyl and cocaine.
[3] Counsel for Mr. Park contests the admissibility of this expert evidence, and argues that Corner does not have any special or peculiar knowledge as it relates to the usage pattern of cocaine and fentanyl. The admissibility of his evidence is also contested on the basis of bias.
The Facts
[4] The Drug Enforcement Unit (“DEU”) of the DRPS is comprised of 12 officers, some of whom were involved in an investigation into a number of individuals believed to be drug traffickers within the Durham Region. Some of these officers testified at this trial.
[5] On March 30, 2018, as part of this ongoing investigation, Detective Constable Wesseling (“Wesseling”) was working undercover and attended at the residence of a Brianna Fraser (“Fraser”), who was one of the subjects of the investigation and was believed to be trafficking in a number of substances.
[6] Wesseling testified that at approximately 4:00 p.m., he attended at Fraser’s residence and paid her $150 of police pre-recorded buy money. Approximately a half hour later, Wesseling re-attended at Fraser’s address and obtained a white plastic bag which was believed to be, and in fact subsequently turned out to be, an amount of heroin.
[7] Between the time when Wesseling initially attended at Fraser’s residence and paid her $150 and when he re-attended to pick up the package of drugs, a black male was seen exiting a white Honda and attending at the Fraser residence.
[8] As a result of that attendance, surveillance was conducted of the white Honda and various observations were made at different locations of the person - who was subsequently identified as Mr. Park, meeting various individuals either in his car or at a residence.
[9] As a result of the observations made during the course of the aforesaid surveillance, Mr. Park was arrested and at the time of the arrest various items were seized, including a clear bag of oxycodone pills; 2.4 grams of fentanyl; 12.6 grams of cocaine; and 3 bundles of cash. One of the bundles of cash contained $2,555, another contained $120, and the last bundle contained the $150 of what has been referred to as the pre-recorded police buy money. In addition to the aforesaid items, three cell phones were seized either from Mr. Park’s person or from within his vehicle.
[10] Corner has prepared an expert’s report that deals with the usage of cocaine, the dosages of fentanyl, and provides an opinion that the 12.6 grams of cocaine seized from Mr. Park and the 2.4 grams of fentanyl were consistent with possession for the purpose of trafficking. As it relates to the 15 oxycodone pills that were seized, Corner declined to provide any opinion about possession for the purpose of trafficking as the amount seized was consistent with an amount for simple drug possession.
Stage 1: The Governing Principles
[11] As with all opinion evidence, the proposed expert evidence of Corner is presumptively inadmissible. In this case, the Crown being the party seeking to tender Corner as an expert must establish the admissibility of his evidence on the balance of probabilities (see R. v. Abbey, 2009 ONCA 624, at para. 71).
[12] The first step in what has been described as the threshold stage in this case, requires the Crown to establish that the evidence satisfies the “threshold requirements of admissibility” (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at para. 23). The requirements are the well-known four factors set forth in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9, specifically:
(a) relevance;
(b) necessity;
(c) the absence of an exclusionary rule; and
(d) a properly qualified expert.
[13] The second stage, or what has been referred to as the gatekeeping stage, involves a discretionary weighing of the benefits or probative value of admitting the evidence that meets the preconditions to admissibility against the costs of its admission – those costs including such considerations as the consumption of time, prejudice, and the risk of causing confusion.
[14] In R. v. Abbey, 2009 ONCA 640, at para. 48, the Ontario Court of Appeal explained the test in more detail and stated:
Expert evidence is admissible when:
(1) It meets the threshold requirements of admissibility, which are:
a) The evidence must be logically relevant;
b) The evidence must be necessary to assist the trier of fact;
c) The evidence must not be subject to any other exclusionary rule;
d) The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfill the expert’s duty to the court to provide evidence that is:
i. Impartial,
ii. Independent, and
iii. Unbiased.
e) For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose, and
(2) The trial judge, in a gatekeeping role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:
a) Legal relevance,
b) Necessity,
c) Reliability, and
d) Absence of bias.
[15] As it relates to the issue of bias and impartiality, this being one of the issues relied upon by the defence to seek the exclusion of Corner’s evidence, it is now clear after White Burgess that independence and impartiality are a threshold admissibility requirement. As well, it is clear from White Burgess, at para. 46, that the expert must be fair, objective and non-partisan, and that the expert must be aware of this primary duty to the court and also be willing and able to carry it out. White Burgess, at para. 49, makes clear that the ultimate question for the trial judge is “whether the expert is able and willing to carry out his or her primary duty to the court”.
[16] As it relates to the question of whether or not an expert who may have some connection or relationship with a party or the litigation, White Burgess makes clear that the mere fact of an interest or connection is, generally speaking, by itself, not sufficient to disqualify a proposed expert.
[17] The question of whether or not an expert who may have some connection with the litigation or the parties and whether such relationship might disqualify an expert, is to be assessed on an objective basis. The Supreme Court in White Burgess, at para. 50, makes clear that apparent bias is not relevant, rather “[t]he question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance”. This assessment, rather than being an objective assessment, is a subjective assessment.
[18] The new threshold requirement, as White Burgess makes clear at para. 49, is not a particularly onerous one, and in fact, the Supreme Court states that exclusion at this stage will likely be “quite rare” and should only occur in “very clear cases”.
[19] In terms of meeting the onus, at para. 47 of White Burgess it is now abundantly clear that once an expert recognizes and accepts his duty under oath, generally speaking this will be sufficient to satisfy the requirement.
Stage 2: Discretionary Gatekeeping
[20] Once the threshold requirements have been met, a trial judge must then weigh the potential risks and benefits in making a decision as to whether the potential benefits justify the risks (see White Burgess, at para. 24). In making this determination, relevance, necessity, expert qualifications, absence of bias, are again considered against the risk of dangers associated with the expert evidence. The decision of the trial judge is one that must consider whether the proposed expert evidence “…is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process…” (Abbey, 2009 ONCA 624, at para. 76). Fundamentally, a trial judge as the gatekeeper must assess the potential risks and benefits to the circumstances of the particular case.
Analysis
[21] Mr. Park is charged with Possession of Cocaine and Fentanyl for the Purpose of Trafficking. The Crown has the onus of establishing the necessary mental element to make out this charge. If Mr. Park had possession of these drugs for personal use, the additional mental element is not satisfied. The proposed expert evidence that would include details about pricing, use, chain of distribution and the modus operendi of trafficking in either of cocaine or fentanyl, will all be helpful in determining the purpose for the possession and, as such, in my view relevance is made out.
[22] As for the question of necessity, there is little doubt that the expert opinion evidence will be beyond the knowledge and experience of most, if not all jurors, and as such I am satisfied that the proposed evidence is necessary.
[23] As to whether or not Corner is a properly qualified expert, I have heard his evidence during the course of the voir dire and reviewed his curriculum vitae, and I am satisfied that through his five years of experience with the DEU that he has a special knowledge gained through his experience in dealing with confidential informants; acting as an undercover officer; listening to wiretap discussions of drug traffickers and users; and attending to the execution of numerous search warrants, that he will be able to assist the court in understanding the illegal use and sale of both fentanyl and cocaine.
[24] In addressing the issue of whether or not Corner is willing and able to fulfill the duty of an expert to the court to provide evidence that is impartial, independent and unbiased, I pause to reflect on the fact that nowhere in his report nor in his evidence to the court in the voir dire, did Corner comment on his understanding of his duty to the court. I raised this issue with counsel at the completion of his evidence, and was somewhat surprisingly told by Crown counsel that this was the first time that he had ever been asked by the court to make that enquiry of a proposed expert. I allowed the Crown to re-open his case and to ask Corner what he understood his duty was to the court, and in that regard Corner testified he understood his role was to assist the court with respect to the charges of Possession for the Purpose of Trafficking in Cocaine and Fentanyl, and that the court could rely on his opinion based on his years of experience. He further elaborated that his opinion should be fair to all parties.
[25] Unlike Rule 53.03(2.1)(7) of the Rules of Civil Procedure (“the Civil Rules”), there is no obligation in a criminal case where expert evidence is being tendered for the expert to sign an Acknowledgement of Expert’s Duty. In that regard, in a civil action anyone who is tendered as an expert must have sign a Form 53, which acknowledges the duty on the part of the expert to provide evidence in relation to the proceeding which is (a) fair, objective and non-partisan; (b) to provide opinion evidence that is related only to matters within the area of expertise of the proposed expert; and (c) to provide such additional assistance as the court might reasonably require to determine a matter in issue. The expert, in signing the Form 53, is required to acknowledge that his duty prevails over any obligations which he might owe to any party by whom or on whose behalf he is engaged.
[26] In qualifying an expert in a criminal case (or for that matter any kind of case), the court cannot presume that someone tendered as an expert understands his or her duty to the court unless that duty is expressly enunciated, either in his or her expert’s report and/or during the course of the qualification of that expert in open court. The failure to have an expert properly qualified in this regard, fails to meet one of the threshold requirements for admissibility laid down by the Ontario Court of Appeal in Abbey.
[27] After I allowed the Crown to recall Corner, he was given the opportunity to express his understanding of an expert’s role when giving expert evidence in a trial. Quite succinctly, he testified that his role was to be fair to the parties. Fairness looked at broadly encompasses impartiality, independence and a lack of bias - all of which are expected of an expert offering expert opinion evidence to the court.
[28] An important issue, in my view, as it relates to the court’s gatekeeping function in terms of whether or not there is an absence of bias as it relates to Corner’s evidence, arises out of the fact that he was a member of the same DEU, members of which have now testified before this court. In that regard, Corner candidly admitted during the course of his voir dire and in response to a question from the court, that all of the police witnesses who did testify at this trial were former colleagues of his.
[29] The fact that Corner and the police witnesses were all former colleagues, could create an appearance of bias and/or give rise to the possibility that Corner might lack the objectivity required of an expert. I have considered both of these possibilities and would argue that in future cases like this where the Crown seeks to tender as an expert a police officer with the education, training and experience to qualify as an expert, that the Crown give serious consideration to using a police officer who, at the very least, is not a colleague of the fact witnesses being called at the trial, and preferably uses a police expert from another police force altogether.
[30] There is no evidence before me that Corner was in any way involved in the investigation that resulted in the charges before the court. The Court of Appeal in R. v. McManus, 2017 ONCA 188, at para. 67, references the “heightened concern” that trial judges must have when dealing with police expert witnesses so as to ensure their ability to offer impartial expert evidence.
[31] The involvement or lack thereof of the potential police expert in the investigation that is the Crown’s case against an accused, is well contrasted in two decisions of Munroe J. in R. v. Fabos, 2015 ONSC 8013, and R. v. Dixon, 2015 ONSC 8065. In Fabos, the proposed expert was an integral part of the police investigation which led to the prosecution. In fact, the proposed expert had already testified as a fact witness when the Crown then sought to later qualify him as an expert.
[32] The facts in Fabos can be contrasted with the facts in Dixon to better understand in what circumstances the court may qualify a police officer as an expert witness. In Fabos, Munroe J., at para. 47, noted that the involvement in the subject investigation of the particular police officer who was to be tendered as an expert was “minor and inconsequential”. That said, the officer in question was a member of the same drug unit as the officers testifying in the trial, and had also assisted in the execution of a search warrant. While he was not present or involved in the arrest search and seizure, the officer tendered as an expert did handle the items seized and took control of the money back at the police station. Despite this involvement, Munroe J. did qualify the officer as an expert.
[33] The Court of Appeal in R. v. Mills, 2019 ONCA 940, recently revisited the whole issue of how and when a police officer should be qualified as an expert. In Mills, the trial judge was satisfied that the police officer, (a member of the Toronto Police Service - the same police service that arrested the accused), from his experience as a police officer had the “peculiar knowledge necessary to provide the expert street gang evidence”. The Court of Appeal, at para. 59, begins its analysis with the observation that the mere fact the officer in question was a “TPS officer does not suggest bias”.
[34] The Court of Appeal in Mills, at para. 62, goes on to confirm that just because a police officer who is proffered as an expert works in the same police service that investigated the matter, does not “inform whether that witness is unable or unwilling to fulfill his primary duty to the court to be fair, non-partisan and objective”. The Court in Mills, at para. 63, goes on to contrast the facts in McManus where the proposed police expert had known the accused for a long period of time; “importantly, believed the accused was a drug trafficker”; was the exhibits officer; and “was integrally tied to the investigation itself”.
[35] None of the facts presented in either McManus or Fabos correspond in any way to Corner. At its highest, Corner was a member of the same Drug Enforcement Unit as all of the police witnesses who testified as fact witnesses in this case. Corner was not involved in any way, shape or form in the investigation of, nor the arrest and ultimate search of Mr. Park. Provided Corner met (as I have already concluded he does) all of the other criteria to qualify him as an expert, I am satisfied that he should not be disqualified on the basis of bias.
[36] During the course of the qualification voir dire, I was impressed with Corner’s candour and willingness to accept various propositions put to him by defence counsel. Until Corner was recalled, neither counsel asked him about his understanding of what he understood the role of an expert was. Specifically, there was no mention made in specific terms that he understood his primary role was to be impartial, independent and unbiased. Nonetheless, from the manner in which he conducted himself during the voir dire, I was satisfied that even though he may not have used the “right verbiage”, he would provide the court with opinion evidence that was not only relevant and necessary, but also evidence that was fair and impartial.
[37] When dealing with police expert evidence there is, in my view, a heightened obligation on the court as part of its discretionary gatekeeping, to weigh in the balance the potential risks against the potential benefits of admitting the proposed expert opinion evidence. The circumstances of this case require someone with experience in the drug subculture to explain to the jury what they need to know about drug pricing and drug quantities. As this activity is by implication illegal, it is unlikely that this kind of evidence can be obtained from drug dealers. As such, it is not surprising that this kind of evidence is often elicited from a police officer, who by reason of his education training or experience can provide the court with the opinion evidence that is required.
[38] There is always the risk that the opinion evidence coming from a police officer may be afforded more weight simply because it comes from a police officer. Provided the court is satisfied that the proposed officer fully understands his or her obligation to provide unbiased, impartial and independent evidence to the court, such risk can, if required, be addressed in the final instructions to the jury. Balanced against this risk is the obvious benefit to the court in receiving police expert evidence on the drug subculture such as was sought in this case. Having weighed the potential risk against the benefits of the proposed evidence, I am prepared to qualify Corner as an expert as sought by the Crown.
Justice M.L. Edwards
Released: January 30, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER PARK
Defendant
RULING ON ADMISSIBILITY OF EXPERT EVIDENCE
Justice M.L. Edwards
Released: January 30, 2020