CITATION: R. v. Masters-George, 2025 ONSC 1949

COURT FILE NO.: CR-25-20000146-0000

DATE: 20250328

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

JORDAN MASTERS-GEORGE

Defendant

Colin Sheppard, for the Crown

Daniel Rechtshaffen and Emily Conte, for Defendant

HEARD: March 24, 25 and 26, 2025

RULING ON ADMISSIBLITY OF EXPERT EVIDENCE¹

Shin J.

1Mr. Masters-George is charged with one count of conspiracy to commit the indictable offence of trafficking in controlled substances contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19.

2The Crown primarily relies on several intercepted communications between Mr. Masters-George and Burnell Smith to establish the conspiracy. The Crown seeks the admission of expert opinion evidence from Detective Richard Duffus of the Toronto Police Service. Specifically, the Crown proposes Det. Duffus be qualified as an expert in the following areas:

• The distribution, sale, and use of controlled substances, including cocaine, fentanyl, heroin, and any derivatives, including whether or not possession of these controlled substances is for the purpose of trafficking.

• Prices, quality, methods of use, strength, character, quantity, appearance, and packaging of these drugs when sold;

• Practices, habits, and modus operandi of the drug subculture associated to these substances, including terminologies associated with drug trafficking (slang and coded language), weapons, possession of proceeds of crime, and counter-surveillance techniques.

3The Crown filed an application record, factum and book of authorities in support of his application. No materials were filed by the defence. Det. Duffus testified on the voir dire and several documents were made exhibits, including:

• His curriculum vitae.²

• The report he authored for the Project Venom Group 2 accused persons, which I understand included 10 accused, one of whom is Mr. Masters-George. This report was completed, provided to the Crown, and disclosed in August 2023, prior to the preliminary inquiry.³

• 13 hypothetical scenarios related to the Group 2 accused, prepared by the Crown.⁴ The Crown asked Det. Duffus to opine on whether or not the scenarios were consistent with possession for the purpose of trafficking. This document was provided to Det. Duffus sometime in August 2023, prior to him authoring his report.

• A lexicon containing Det. Duffus’s definitions of specific drug related slang or coded language. Det. Duffus prepared this lexicon specifically in relation to Group 2. This lexicon was prepared by Det. Duffus at or around the same time as his report and was provided to the Crown and disclosed together with his report.⁵

4The intercepted communications the Crown relies on were played in court during the voir dire and made exhibits.⁶

5Det. Duffus has been a police officer for 35 years. He has been a detective in the TPS Drug Squad since August 2013 and is currently a detective in the Major Projects section. From 2013 to 2023, he was a detective with the Drug Squad’s Street Team. The Street Team primarily deals with street level enforcement involving street level to mid-level drug dealers. On the Street Team, Det. Duffus was primarily supervising team members, including undercover and surveillance officers, and overseeing investigations. Prior to 2013, Det. Duffus was assigned to various divisions and units within the TPS and was involved numerous drug investigations in varying capacities.

6His experience in the investigation of various drug related crime includes being:

• a team leader / road boss;

• an undercover officer - he has done over a 100 drug purchases of a variety of drugs;

• a search warrant affiant over 100 times;

• involved in the execution of search warrants;

• a confidential informant and agent handler – he has regularly debriefed informants and agents;

• a surveillance officer;

• involved in the collection and processing of seized drugs;

• involved in the seizure of a variety of drugs – he had been involved in hundreds of seizures of each of powdered cocaine, crack cocaine, heroin and fentanyl in various amounts, including seizures involving hundreds of kilograms of cocaine.

7Det. Duffus has also participated in a multitude of training sessions, conferences and courses related to drug investigations and expert witness issues. From 2008 to date, Det. Duffus has been qualified to testify as an expert in relation to a variety of drugs, including cocaine, fentanyl and heroin, 61 times, primarily with the consent of the defence.

8Det. Duffus testified that he understands his duty as an expert is to provide unbiased and impartial evidence to assist the court. He confirmed that the first page of his CV contains the following:

Note to defence counsel:

I am available for consultation in your matter before the court or as a

defence witness.

9Det. Duffus has never testified as a defence witness. He has had defence counsel contact him three or four times to ask him questions and he made himself available to them. He was not involved in the Project Venom police investigation.

Legal principles

10The admissibility of expert evidence is governed by the two-part test set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. In White Burgess, the Supreme Court of Canada adopted Doherty J.A.’s reformulation of the Mohan criteria in R. v. Abbey, 2009 ONCA 624 with minor adjustments.

11In R. v. Abbey, 2017 ONCA 640, at paras. 48-49, Laskin J.A. helpfully set out the two-stage test as follows:

48The test may be summarized as follows:

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 fulfil 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 gatekeeper role, determines that the benefits admitting the evidence outweigh its potential risks, considering such factors as:

a. Legal relevance,

b. Necessity,

c. Reliability, and

d. Absence of bias.

49In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements.

12With respect to the threshold requirement that the expert be properly qualified, once the proposed expert testifies that they recognize and accept their duty to the court is to provide impartial, independent and unbiased evidence, the burden shifts to the party opposing admission to show a “realistic concern” as to why the expert might not comply with that duty. If a realistic concern is shown, the burden shifts back to the party seeking admission to demonstrate on the balance of probabilities why the expert is a properly qualified expert. Expert evidence should only be excluded in very clear cases where the court finds the proposed expert is unable or unwilling to provide fair, objective and non-partisan evidence: White Burgess, at para. 47-50; R. v. Mills, 2019 ONCA 940, at paras 42-43.

13Once the threshold admissibility requirements are met, any remaining concern about the expert’s compliance with their duty or their impartiality and independence must be considered as part of the overall cost-benefit analysis the judge must conduct in their gatekeeping role: White Burgess, at paras 34 and 54; Mills, at para. 45.

Analysis

14The defence concedes that the first three threshold requirements of admissibility are met – the evidence is logically relevant; it is necessary to assist the trier of fact; and the evidence is not subject to any other exclusionary rule. The defence challenges the fourth threshold requirement, arguing that Det. Duffus is not properly qualified as he is unable to provide impartial and unbiased evidence.

15At the gatekeeper stage, the focus of the defence argument is that the prejudicial effect of admitting the evidence outweighs its probative value. The defence submits the prejudice relates to:

(a) Det. Duffus’s bias; and

(b) his inadequate adherence to the strict requirements of being an expert. The defence submits that Det. Duffus does not understand the role of an expert and is careless in carrying out the duties of an expert.

16The defence primarily relies on five specific issues with Det. Duffus’s testimony on this voir dire to argue that Det. Duffus is biased, lacks impartiality and lacks an understanding of the role of an expert. I will address each of these concerns raised by the defence.

(i) Det. Duffus lied or was deliberately dishonest when he would not agree that it was unusual that he authored a report that does not contain hypotheticals or a synopsis

17Defence counsel argues that during his cross-examination, Det. Duffus was deliberately dishonest when he would not agree that it was atypical or unusual that he would author a report that does not contain an opinion on hypothetical scenarios or a synopsis of the charges the report relates to. This, according to the defence, is a lie meant to mislead or misdirect the court into believing that his report in this case was a regular report.

18Det. Duffus agreed that it is typical for his reports to include hypotheticals. He then disagreed with the suggestion that it was unusual or uncommon for him to not include either hypothetical scenarios or a synopsis in his reports. He explained that the contents of a report he authors depend on the circumstances and the request made by the Crown. He provides opinions on hypothetical scenarios in his reports if they are provided to him by the Crown. He also testified that he does not believe he ever authored a report that contains no hypothetical scenarios or no synopsis.

19While I agree with defence that if Det. Duffus has never generated a report that does not contain hypotheticals or a synopsis before, such a report would be atypical, I disagree that Det. Duffus was being deliberately dishonest, attempting to mislead the court or deflect. As Det. Duffus explained, the determination of the content of his reports is driven by the Crown’s requests of him. He provides opinions on hypotheticals only if the Crown provides them. Whether he provides a synopsis would depend on the information about the case provided to him by the Crown.

20Defence counsel submits that Det. Duffus was being dishonest in order to create the illusion that his expert report in this case was not unusual, and that he was loathe to concede something that he perceived may be helpful to the defence. The foundation for these arguments – that Det. Duffus’s report does not contain hypotheticals – is incorrect, likely as result of a misunderstanding. While the report as filed as Exhibit 6 does not contain hypotheticals, the Crown explained during reply submissions that Exhibit 6 is only a portion of Det. Duffus’s August 2023 report, which is the only report he has ever written in relation to the Project Venom Group 2 accused persons. Det. Duffus’s complete report included opinions on 12 of the 13 hypothetical scenarios the Crown provided on the last eight pages. The Crown removed those eight pages for the purposes of this trial as none of the hypothetical scenarios are relevant to this trial.⁷ Defence counsel took no issue with these reply submission.

(ii) Det. Duffus lied or was deliberately dishonest when he would not agree he knew the hypotheticals were drawn from the facts in Project Venom

21Defence counsel submits that Det. Duffus lied when he disagreed with the suggestion that he knew the 13 hypothetical scenarios provided to him by the Crown⁸ were drawn from the facts of Project Venom. When asked this question in cross-examination, Det. Duffus’s response was that he would be assuming they were, but that he did not know. The question was then repeated and Det. Duffus answered, “they are obviously from Project Venom, but from what scenarios and the circumstances, I don’t know the totality of those circumstances.”

22I disagree that Det. Duffus was lying during this exchange. In my view, the answers to the question are not necessarily inconsistent. How I understand his answers is that while he obviously knows the hypotheticals are generally drawn from Project Venom, he does not know whether the specific hypothetical facts outlined in each scenario are actually drawn from evidence or the actual facts of Project Venom. Each scenario contained in Exhibit 6 is very specific and detailed. Det. Duffus was not involved in the Project Venom investigation. The only thing the Crown provided to him from the police investigation was one or two intercepted communications for each hypothetical scenario. Det. Duffus did not have any information related to any of the police seizures or their surrounding circumstances which I assume the hypotheticals were based on. I do not find his answers misleading or an attempt to be misleading.

(iii) Det. Duffus lied or was deliberately dishonest when he testified he provided an opinion on all 13 hypotheticals

23I turn to the next lie alleged by the defence. Defence counsel asked Det. Duffus whether he provided an opinion on all 13 of the hypothetical scenarios in Exhibit 6 and Det. Duffus answered “yes”. Defence counsel then pointed out that answer was not “entirely accurate” and Det. Duffus agreed that he did not opine on one of the hypotheticals, that being hypothetical #3. Defence counsel urges the court to find Det. Duffus deliberately lied when he agreed he provided an opinion on all 13 hypotheticals. Defence counsel argues that Det. Duffus ought to have been prepared to answer truthfully as he was cross-examined on this same issue in January 2025 at the trial of Brandon Caleb who is another Project Venom Group 2 accused.

24That Det. Duffus was incorrect in his initial response does not necessarily equate to a deliberate lie. Det. Duffus immediately agreed he was incorrect when the inaccuracy was pointed out to him. Defence counsel’s suggestion that Det. Duffus probably did not know that defence counsel knew he did not provide an opinion on all 13 hypotheticals is speculative and contrary to the known facts that: (1) Det. Duffus knew his full report was disclosed to defence counsel; and (2) at the preliminary inquiry which defence counsel attended, Det. Duffus testified he did not provide an opinion on hypothetical #3 and explained why he did not (as described further below). It is far more likely that Det. Duffus simply forgot he did not opine on one hypothetical until reminded and/or was careless in his response to the question.

(iv) Det. Duffus suppressed an opinion that is helpful to the defence and does not understand the role of an expert witness

25Related to issue (iii), the defence urges me to find that Det. Duffus suppressed an opinion that would be helpful to the defence by not including his “opinion” regarding hypothetical #3 in his report.

26As noted, Det. Duffus did not provide an opinion on hypothetical #3, which involves 316 grams of the drug Xanax, or include any reference to it in his report.⁹ In cross-examination, Det. Duffus explained that he could not opine on the amount of Xanax in the scenario as he did not know whether a physician would prescribe that amount of Xanax to an individual. He also could not speak to the amount based on his experience. He agreed with the question that because he could not form an opinion whether it was for the purpose of trafficking or was simple possession, he did not include it in his report. He testified that he provided “something” to the Crown with regards to this issue and that he was not asked anything further, and later in cross-examination, he testified that he told the Crown that he “couldn’t speak to it”.

27There is no issue that during Det. Duffus’s testimony on September 11, 2023 at the Group 2 preliminary inquiry, which included Mr. Masters-George, he provided a similar explanation as to why he did not include this hypothetical in his report when he was cross-examination by the defence counsel for a different accused. There is no issue that Mr. Rechtshaffen represented Mr. Masters-George at this preliminary inquiry.¹⁰ In addition, Det. Duffus testified at the trial of a different Group 2 accused, Brandon Caleb, on January 29, 2025 and was cross-examined on this same issue – while Det. Duffus initially could not recall whether he did not include it in his report because he could not opine that it was for the purpose of trafficking, his memory was refreshed with his explanation at the preliminary inquiry.

28The defence submits that Det. Duffus suppressed his opinion that hypothetical #3 could be possession for the purpose of trafficking or simple possession and that this opinion would be helpful to the defence. The defence further submits that the fact that he did not include his findings on hypothetical #3 reveals that Det. Duffus does not understand his role as an expert witness. Defence counsel submits that in determining whether an expert is impartial and performing their duties in the manner required, the court must examine whether the proposed expert understands their role in the process and their obligation to report on that process. If Det. Duffus’s findings or conclusion on hypothetical #3 is ambiguous or inconclusive – that it could be either possession for the purpose of trafficking or simple possession – he is required to report and disclose that finding and this finding constitutes an opinion of inconclusive. According to the defence, either Det. Duffus does not understand his role as an expert as he does not understand that inconclusive is an opinion or he knew his opinion is exculpatory evidence and chose not to include it in his report. The result is that he is denying the court of the ability to make a finding with all the information.

29I disagree with these submissions. First, I disagree that Det. Duffus’s explanation is properly, or can only be, characterized as an opinion in the way urged by the defence. His evidence is that he had insufficient knowledge and expertise to render an opinion on hypothetical #3 and as such, he appropriately did not form an expert opinion. The import of his evidence is that amount could be possession for the purpose of trafficking, simple possession or not a crime at all because it was prescribed by a physician and legally possessed. He simply did not know. There is nothing wrong, and much right, with an expert not providing an opinion that they believe they do not have the requisite expertise to opine on. Second, even if his evidence can be viewed as an “opinion” that the 316 grams of Xanax could be either possession for the purpose or simple possession, I find that he was not supressing or attempting to supress an opinion that could be beneficial to defence, advertently or inadvertently. Not mentioning hypothetical #3 in his report is likely more beneficial to the defence than including an opinion that it could be either possession for the purpose of trafficking or simple possession as it more directly leaves open the possibility that no criminal offence was committed (i.e. that the Xanax was possessed legally).

30In my view, Det. Duffus remaining silent on this hypothetical in his report is not problematic. Remaining silent in his report adequately reflects his view that he could not opine on hypothetical #3 and that he was unable to reach a conclusion as to whether the scenario constituted possession for the purpose or simple possession (i.e. that his conclusion was “inconclusive”). This is particularly true in circumstances where all defence counsel for the Group 2 accused persons were provided all 13 hypotheticals and were aware that Det. Duffus was asked to opine on them. Another expert may have explicitly stated in their report that they could not reach an opinion or that their finding is inconclusive. While that may more clearly and directly reflect the expert’s inability to reach a conclusion on the question asked, I do not agree that Det. Duffus’s failure to do so reflects any misunderstanding of the role of an expert in these circumstances. Det. Duffus reported to the Crown that he could not “speak to” this hypothetical; he testified at the preliminary inquiry that he could not reach an opinion and explained why; and while disclosure obligations rest on the prosecution, if Det. Duffus’s failure to address hypothetical #3 raised any concerns for any of the defence counsel, they were made aware they could contact Det. Duffus if they had any questions and none did.

(v) Det. Duffus’s failure to report his lack of knowledge of Xanax or benzodiazepines

31In cross-examination, Det. Duffus agreed with defence counsel that he should not be rendering an opinion on benzodiazepines (there is no dispute that Xanax is a benzodiazepine). He was asked in cross-examination whether he told the Crown that he was not an expert on benzodiazepines or that the Crown should not ask him questions about it after the Crown asked him to opine on hypothetical #3. Det. Duffus answered that he did not say that to the Crown specifically. He testified that he told the Crown he could not speak to it. The defence submits that the court should have an enormous concern with this. Defence counsel relies on Recommendation #92 in Justice’s Goudge’s Report on the Inquiry into Pediatric Forensic Pathology in Ontario¹¹ which the defence submits Det. Duffus failed to follow. There is no issue that the principles underlying Justice Goudge’s recommendations apply to all experts. Recommendation #92 provides:

Forensic pathologists have a positive obligation to recognize and identify for others the limits of their expertise. They should avoid expressing opinions that fall outside that expertise. When invited to provide such opinions, they should make the limits of their expertise clear and decline to do so.

32I disagree that Det. Duffus’s failure to specifically tell the Crown that he should not be asked questions about Xanax or that he is not an expert on benzodiazepines represents a fundamental failure to follow this recommendation or any duty on an expert. In my view, Det. Duffus sufficiently followed the spirit of this recommendation in the context of his role as an expert in the Project Venom prosecutions. He avoided expressing opinions that fall outside his expertise by not opining on hypothetical #3 in his report and advised the Crown that he could not speak to that hypothetical. He also did not provide an opinion on hypothetical #3 and explained why he did not when he testified at the preliminary inquiry, at Mr. Caleb’s trial earlier this year and at this voir dire. In these circumstances, he made the limits of his expertise sufficiently clear.

(vi) Threshold stage – Det. Duffus is properly qualified

33The threshold requirements for admissibility of the proposed opinion evidence of Det. Duffus are met. Based on his training and experience, Det. Duffus clearly has the requisite specialized knowledge to provide opinion evidence in the areas the Crown proposes. Det. Duffus testified that he understands his obligation to the court to provide impartial, independent and unbiased evidence and I find that he does understand his obligations to the court.

34I have considered the five issues raised individually as noted, and I have considered their impact collectively. At its highest, these issues raise the possibility that Det. Duffus was somewhat careless in a limited number of answers he provided in cross-examination, he was perhaps a little more dug in on points than other experts may have been and/or he could have been clearer in his report. These are matters that can be addressed when I assess the ultimate weight of Det. Duffus’s expert opinion. Individually or collectively, these issues do not raise any concerns that Det. Duffus was deliberately attempting to mislead counsel or the court. They do not reveal partiality or bias. Nor do they reveal that Det. Duffus does not understand his role as an expert or that he displays an inadequate adherence to the strict requirements of being an expert. The issues do not demonstrate a clear unwillingness or inability for Det. Duffus to meet his obligations as an expert witness: R. v. Oppong, 2021 ONCA 352, at para. 66. The defence has not shown a realistic concern as to why the expert might not comply with his duties to the court: Mills, at para. 42; White Burgess, at para 48.

35The threshold reliability stage of admissibility is met.

(vii) Gatekeeper stage – the benefits of admitting the evidence outweigh the costs of its admission

36I am satisfied that the probative value of Det. Duffus’s proposed evidence significantly outweighs any potential prejudicial effect. Det. Duffus will be able to provide relevant, necessary and reliable evidence regarding the distribution, sale and use of controlled substances generally and specifically with respect to cocaine, crack cocaine, fentanyl and heroin; and the pricing, quality, methods of use, strength, character, quantity, appearance and packaging of these drugs when sold. His anticipated expert evidence regarding the practices, habits and modus operandi of the drug subculture, including the meaning of slang and coded terminology, will assist the court in making findings on the content and meaning of the intercepted communications. All these matters are not common knowledge.

37The proposed evidence carries with it little potential prejudice. Det. Duffus’s testimony on the trial proper will not consume an undue amount of time, complicate the trial or cause confusion. I disagree with the defence submission that it would be dangerous to allow Det. Duffus to testify. The primary danger or risk arising from the admission of opinion evidence is that the trier of fact’s function as fact-finders might be usurped by that of the witness: Oppong, at para. 41; Abbey (2009), at para. 90. Defence counsel submits the prejudice with respect to Det. Duffus’s anticipated testimony is, in part, he will testify that in his expert opinion, the intercepted communications are about cocaine and his police experience and training are such that he will be perceived as the “drug super cop”. This danger or prejudice is really an argument that the trier of fact will be overwhelmed by his expert opinion and expertise. This concern is attenuated as this is a judge alone trial.

38I will continue to turn my mind to the partiality, bias and other concerns raised by the defence in determining the ultimate reliability of, and weight I will place on, Det. Duffus’s opinion: White Burgess, at para. 45.

Conclusion

39I conclude that Det. Duffus is a qualified expert in the areas proposed by the Crown, subject to one caveat. I will hear brief submissions on whether “weapons, possession of proceeds of crime and counter-surveillance techniques” should remain in the third bullet of the Crown’s proposed areas.

40The expert evidence of Detective Duffus with respect to these areas is admitted.

The Honourable Justice L. Shin

Footnotes

1. 1During the first day of trial, a voir dire was entered into on the admissibility of Det. Duffus’s proposed expert evidence only and the exhibits were entered as lettered exhibits on the voir dire. However, on March 25, 2025, the parties agreed that all the evidence on the voir dire ought to be blended with the trial proper. The lettered exhibits already entered on the voir dire were made numbered exhibits on the trial at the end of submissions on March 26, 2025.
2. 2Exhibit 4, previously Exhibit A on the voir dire.
3. 3incorrectly noted as “Group 6” on the cover page. Exhibit 5, previously Exhibit B on the voir dire.
4. 4Exhibit 6, previously Exhibit C on the voir dire.
5. 5Exhibit 8, previously Exhibit E on the voir dire
6. 6The transcripts of the intercepts are contained in Exhibit 2 (binder) and the audio files are contained in Exhibit 15 (USB).
7. 7Hypotheticals #1-7 and 9-13 relate to other accused persons. Hypothetical #8 relates to a charge against Mr. Masters-George which the Crown has withdrawn (possession for the purpose of trafficking) and I understand that there will be no evidence related to that scenario introduced at this trial.
8. 8Exhibit 6 (previously Exhibit C)
9. 9Hypothetical #3 is connected to a different Group 2 Project Venom accused, not Mr. Masters-George, and is unrelated to the charge Mr. Masters-George faces on this trial.
10. 10The transcripts of Det. Duffus’s preliminary inquiry testimony are included in the Crown’s application record.
11. 11Exhibit 3.