Court File and Parties

COURT FILE NO.: CR-22-018

DATE: 20220802

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Brazier

BEFORE: Justice C. Boswell

COUNSEL: Indy Kandola and Susan Safar for the Crown Anthony G. Bryant and Stephanie Marcade for Mr. Brazier

HEARD: June 28, 2022

ENDORSEMENT on MOHAN VOIR DIRE

[1] Mr. Brazier is charged with trafficking in cocaine, heroin and fentanyl. He is also charged with manslaughter in the death of James Glover, a young man who died in March 2020 after ingesting drugs purportedly sold to him by Mr. Brazier.

[2] The Crown intends to adduce in evidence certain text messages found on forensic examination of Mr. Glover’s cell phone. The messages are said to have been exchanged between Mr. Brazier and Mr. Glover on or around the date of Mr. Glover’s death. They contain what the Crown contends is coded drug language. As an example, Mr. Glover purportedly asked Mr. Brazier for “Purple Gatorade” and “White Groceries”. The Crown contends that these references were to fentanyl and cocaine respectively.

[3] The Crown seeks to tender expert evidence about the interpretation of coded language used in the illicit drug trade as well as drug trafficking more generally, including aspects of the drug subculture, indicia of drug trafficking and the street values of illicit drugs. An order is sought qualifying Detective Constable Mike Deyell of the Ontario Provincial Police as an expert in these areas. DC Deyell will be asked to offer an opinion about the meaning of some of the language used in text exchanges between Mr. Glover and Mr. Brazier.

[4] As a general rule, opinion evidence is presumptively inadmissible in criminal proceedings in Canada. An exception to the general presumption arises where the opinion evidence is tendered through a properly qualified expert. Qualification of an expert is subject to the application of criteria established by the Supreme Court in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 and refined in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

[5] The admissibility of an expert’s opinion, the scope of the evidence and the manner of its introduction are all issues typically determined following a hearing conventionally referred to as a Mohan voir dire.

[6] The voir dire involves a two-step analysis (see White Burgess, paras. 23-24). First, the party tendering the expert evidence must establish the threshold requirements of admissibility. These include the four traditional Mohan factors: (1) that the evidence is logically relevant; (2) that it is necessary to assist the trier of fact; (3) that it is not subject to an exclusionary rule apart from the rule relating to expert opinion evidence; and (4) that it is tendered through a properly qualified expert. Additionally, if the opinion is based on novel or contested science or science used for a novel purpose, the tendering party must establish the reliability of the underlying science for the purpose proposed.

[7] Provided the court is satisfied that the traditional Mohan factors are established, the analysis will proceed to the second stage. This stage involves a cost/benefit analysis. The court must make a determination about whether the evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from its admission. See R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330 at para. 76 and White Burgess, at paras. 22-34. In making this determination the court exercises its discretionary gatekeeping function. This stage has been referred to as an assessment of the legal relevance of the evidence.

[8] In this instance, though a date was set for a contested Mohan voir dire regarding the qualification of DC Deyell to give expert opinion evidence, Mr. Brazier’s counsel advised that they do not contest the admissibility of the proposed evidence. Their only expressed concern was about maintaining the right to cross-examine DC Deyell about whether he may have some conscious or unconscious bias, given his occupation as a law enforcement officer, that may go to the weight the jury places on his evidence.

[9] In view of the position of defence counsel, I will make only brief remarks about the qualification issue. I will begin with the four traditional Mohan factors.

(i) Logical relevance

[10] Relevance is a threshold requirement of any evidence, whether expert or otherwise.

[11] Logical relevance “exists as a relation between an item of evidence…and a proposition of fact that the proponent seeks to establish by its introduction”: R. v. Luciano, 2011 ONCA 89, at para. 204.

[12] Relevance is a low threshold. An item of evidence is logically relevant if it renders a fact in issue more or less likely – as a matter of logic and human experience – than that fact would be without the evidence. See R. v. Candir, 2009 ONCA 915 at para. 48.

[13] Two of the central issues in this case are: (1) whether Mr. Brazier was, at the relevant time, selling drugs including heroin, fentanyl and cocaine; and (2) whether Mr. Brazier sold heroin, fentanyl or cocaine to Mr. Glover on the date in question. Evidence about the meaning of the language used in their digital embraces is undoubtedly relevant to these two issues. Moreover, evidence about the drug culture, how drugs are illicitly bought and sold and the prices paid for various illicit drugs will also be relevant contextual evidence that may assist the jury in understanding the relationship, if any, between Mr. Brazier and Mr. Glover.

[14] I am satisfied that the proposed evidence meets the low threshold of logical relevance.

(ii) Necessity

[15] Expert opinion evidence carries with it certain risks. One risk is that it will overwhelm the jury and distract them from their task. More specifically, the jury, impressed with the credentials of the expert, may simply defer to his or her opinion rather than carefully evaluating it. Another risk is that the expert may usurp the fact-finding function of the jury. Because of these risks, and others, our law imposes the requirement of necessity as a precondition to admissibility.

[16] Expert opinions are essentially ready-made inferences that are offered to the trier of fact as reasonable conclusions arising from a constellation of particular facts found or assumed as a basis for the opinion. If the facts in issue are such that the jury is able to draw reasonable inferences on their own – without the help of an expert – then the expert’s opinion is not necessary and thus, not admissible. It is only where the presenting facts are of such a technical nature as to likely be outside of the jurors’ experience and knowledge that expert evidence of a scientific nature is required.

[17] The Supreme Court described the necessity criterion in Mohan at para. 22 as follows:

What is required is that the opinion be necessary in the sense that it provides information which is likely to be outside the experience and knowledge of a judge or jury.

[18] Most jurors will have some familiarity with the notion that illicit drugs are traded on a regular basis in our communities. They will have at least some knowledge of the existence and nature of drugs such as heroin, fentanyl and cocaine.

[19] On the other hand, I suspect that most will not be familiar with the precise way in which drug transactions are often carried out, the availability and cost of such drugs, and the language used in the drug subculture to describe the various substances available for purchase.

[20] In my view, the necessity requirement is made out with respect to the proposed evidence of DC Deyell.

(iii) Absence of an exclusionary rule

[21] There is no exclusionary rule in play – apart from the presumptive rule against opinion evidence – that may impact on the admissibility of the evidence in issue.

(iv) A properly qualified expert.

[22] In Mohan, the concept of a properly qualified expert was succinctly described as the requirement that the proposed expert be shown to have acquired special or peculiar knowledge through study or experience in respect of the matters he or she is being offered to testify about.

[23] There appears to be no dispute in this case that DC Deyell has acquired, through education, training and experience, special or peculiar knowledge about the illicit drug trade in the Wasaga Beach area, including the drug subculture, indicia of drug trafficking, pricing and the use and meaning of coded language.

[24] Crown counsel filed DC Deyell’s curriculum vitae as part of the evidence on the Mohan voir dire. In brief, he has been a member of the OPP for 22 years. He has 13 years of experience in drug enforcement and has been involved in a great many drug investigations. His involvement has included over 4,000 hours of surveillance, interrogation, debriefing, and reviewing and listening to trafficking-related conversations. He has taken some 20 courses, between 2009 and 2019, relating in one way or another to drug trafficking investigations. In addition to studying basic investigative techniques, he has studied drug investigative techniques, surveillance, the interception of private communications, search warrants, handling confidential informants, and providing expert evidence. He has been qualified as an expert in drug trafficking – indicia and interpreting coded language – more than twenty times in both the Ontario Court of Justice and the Superior Court of Justice. He has authored more than 100 expert witness reports relating to conspiracy, trafficking, possession for the purpose of trafficking and possession of property obtained by crime.

[25] I am satisfied, as counsel appear to be, that DC Deyell has special or peculiar knowledge relating to the indicia of drug trafficking, the pricing of illicit street drugs and the interpretation of coded language used in the drug trade.

[26] The modern concept of a properly qualified witness requires more, however. In Wight Burgess, the Supreme Court instructed that a properly qualified witness is one who, in addition to having peculiar or special knowledge about a matter in issue, is fair, objective and non-partisan. In other words, impartial.

[27] White Burgess makes it clear that the threshold requirement of impartiality is not particularly onerous. (Para. 49). Once the proposed expert attests or testifies that he or she recognizes his or her duty to be impartial and accepts that duty, the onus shifts to any party opposing admission to show that there is a realistic concern about impartiality capable of undermining the admissibility of the proposed evidence in whole or in part. (White Burgess, para. 48).

[28] In the instant case, DC Deyell was not called to give oral evidence on the voir dire because defence counsel have not contested his qualification. Presumedly, he will, when called, testify that he is unbiased and impartial. The fact that he is an OPP officer – a member of the force investigating the charges before the court – is not, alone, sufficient to raise a presumption of impartiality. See R. v. Sekhon, 2014 SCC 15, at para. 73.

[29] There is presently no evidence before the court that might raise a concern about DC Deyell’s impartiality, capable of undermining the admissibility of his evidence.

[30] I find that he is a properly qualified expert.

(v) Legal Relevance

[31] Stage two of the Mohan voir dire – the cost/benefit analysis – is often referred to as an assessment of the legal relevance of the expert evidence on offer. Here, the court must decide whether the benefits of the evidence outweigh its potential harm.

[32] Benefits of expert evidence typically include the probative value of the evidence, its helpfulness to the trier of fact and the significance of the issue to which the evidence is directed. In assessing probative value, the court must consider the reliability of the evidence on offer, which includes an assessment of “not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert's expertise and the extent to which the expert is shown to be impartial and objective”: Abbey, para. 87.

[33] Costs typically include the consumption of time, prejudice and confusion and, perhaps most importantly, the danger that the jury will be unable to make a critical assessment of the evidence. See Abbey, paras. 90-92.

[34] In this instance, defence counsel do not dispute that, on balance, the probative value of the proffered evidence, and its ability to assist the jury, exceed the risks associated with admission of the evidence. The defence, as I noted, does not challenge threshold reliability but reserves the right to cross-examine DC Deyell on issues of impartiality which may of course go to the ultimate reliability of his evidence.

[35] All things considered, I am satisfied that DC Deyell is a properly qualified expert witness able to provide opinion evidence in the areas identified by the Crown.

[36] The Court of Appeal instructed in Abbey that it is particularly important to establish the limits of the proposed expert’s qualifications and the boundaries of his or her evidence. Doherty J.A. described this significant exercise as follows, at paras. 62-64:

A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal. ...At the conclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible.

[37] No dispute was raised with respect to the Crown’s proposed delineation of the scope of DC Deyell’s evidence. I accept and hold, that he is qualified to provide opinion evidence regarding the indicia of trafficking, the street value of drugs including heroin, fentanyl and cocaine, and the interpretation of coded language used in the context of the sale and distribution of controlled substances.

[38] The Crown included in its scope of expertise, “the drug subculture”. I accept that DC Deyell has first-hand experience in policing in the drug subculture and he may give evidence about his experience and observations. I think it unlikely he will be offering opinions about the drug subculture. If I am wrong, I am prepared to revisit the delineation of the scope of opinion evidence I have ruled admissible.

[39] Having said all of that, the weight to be assigned to any evidence tendered through DC Deyell is for the jury to decide. His employment with the very police force investigating the charges against Mr. Brazier is one factor for the jury to consider. It remains open to defence counsel to cross-examine DC Deyell on issues going to his impartiality, including any conscious or unconscious biases he may hold. And of course it will be open to the defence to suggest to the jury that, while DC Deyell’s evidence was admitted, it ought to be given little or no weight given his employment with the OPP.

C. Boswell J.

Date: August 2, 2022