I. Introduction

[1] Paul Michael Davidson (“Davidson”) is charged with one count – importing cocaine, at Pearson Airport, in Mississauga, on October 2, 2018, contrary to section 6(1) of the Controlled Drugs and Substances Act. Jury selection occurred yesterday in Brampton, and the evidence will begin tomorrow.

[2] Today, a pretrial application was heard. The subject matter of the application is summarized at paragraph 2 of the factum in the name of the Crown but relied upon jointly by both sides. In essence, the Crown wants to elicit evidence at trial from Border Services Officer Bruzon (“Bruzon”) that (i) Davidson had two suitcases, one larger than the other, (ii) Bruzon emptied the large suitcase and examined it, (iii) Bruzon did the same with the small suitcase, (iv) the empty small suitcase felt heavier than the empty large suitcase, according to Bruzon, and (v) the empty small suitcase felt heavier than Bruzon would have expected, or put another way, the empty small suitcase felt abnormally or unusually heavy.

[3] The Defence disputes only item (v) above. The Crown argues that the said impugned evidence is admissible as lay opinion.

[4] No viva voce evidence was heard on the application. The entire hearing took less than one hour. During questioning from the Court, the Crown volunteered to contact Bruzon to enquire as to whether he could come to testify on the application, however, in my view that would have been improper given the jointly agreed upon basis that the application was presented, which basis included the filing of a transcript of Bruzon’s relevant testimony at the preliminary inquiry.

[5] For the brief reasons that follow, the contentious part of the Crown’s application is dismissed. This Court rules that Bruzon’s anticipated evidence that the small suitcase felt heavier than he would have expected, or that it felt abnormally or unusually heavy, is inadmissible at trial.

II. Decision

[6] The governing law is not controversial and need not be dealt with at length, except to say that both sides agree that one of the necessary criteria for the admissibility of the impugned evidence as lay opinion is that “the witness [Bruzon] has the necessary experimental capacity to draw the inference, that is, form the opinion” (clause 3 of paragraph 4 of the factum relied upon by both sides).

[7] Here, the impugned evidence does not come close to satisfying that requirement. From the preliminary inquiry transcript, we know the following: (i) that Bruzon had less than one year on the job at the time of the seizure in question, (ii) that, at the time of the seizure, due to his inexperience, Bruzon was relying upon the assistance of a senior coaching officer, (iii) that Bruzon, at the material time, and even months later at the preliminary inquiry, had no knowledge as to whether it is extraordinary for carry-on luggage to weigh more than five kilograms (this small suitcase, empty, weighed about five kilograms), (iv) that Bruzon had never dealt with this particular brand of bag before the incident in question, (v) that Bruzon had never weighed any carry-on bag, of any brand, before this incident, or since for that matter, up until March 2019, and (vi) that Bruzon conceded that “of course” different brands of bags have different weights.

[8] Simply put, given that evidence, Bruzon cannot say what is normal or usual for the weight of a suitcase of similar size, and thus, he cannot properly be permitted to opine on whether this small suitcase was abnormally or unusually heavy.

[9] All of the cases relied upon by the Crown are distinguishable on their facts. Most important, none of them involves an officer as inexperienced as Bruzon who is being offered, on a contested basis, as a lay opinion witness to give this type of evidence (as opposed to merely observing that a bag is top heavy, or back heavy, for example).

[10] Alternatively, if I am wrong on that conclusion, the impugned evidence remains inadmissible on a straight probative value versus prejudicial effect analysis. As the Crown has properly conceded, the impugned evidence has very limited probative value. Its potential prejudicial effect, however, is significant. There is one issue in this case – did Davidson know about the cocaine inside his luggage? Bruzon’s impugned evidence, as weak as it is, once admitted at trial, could be latched upon by the jury as proof that Davidson must have known that there was something suspicious about the small bag and, further, he must have known that there were illegal narcotics inside it. That would be unreasonable and unsafe, in my view.

[11] Consequently, other than those portions that are on consent, the Crown’s application is dismissed.

Conlan J.

Released: January 28, 2020

COURT FILE NO.: CR-19-1509

DATE: 2020 01 28

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Paul Michael Davidson

ENDORSEMENT - Crown Pretrial Application Regarding Lay Opinion Evidence

Conlan J.

Released: January 28, 2020

R. v. Davidson, 2020 ONSC 751

Case Summary

ENDORSEMENT – Crown Pretrial Application Regarding Lay Opinion Evidence

I. Introduction

II. Decision

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues