R. v. Nguyen et al Date:, 2012 BCPC 554

Citation: R. v. Nguyen et al Date: 20121216 2012 BCPC 0554 File No: 201799-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THI NGOC BICH NGUYEN THU THI NGUYEN NAM HOANG NGUYEN EXCERPTS FROM PROCEEDINGS RE: QUALIFICATIONS OF SERGEANT DAVID GRAY OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: P. Eccles; M. Wiancko Counsel for the Accused Thi Nguyen: M. Nathanson Counsel for the Accused Thu Nguyen: N. Hartney

Counsel for the Accused Nam Nguyen: K. Neurauter Place of Hearing: Vancouver, B.C. Date of Hearing: August 16, 2012 Date of Judgment: August 16, 2012 Introduction [1] THE COURT: This is a ruling regarding the qualifications of Sergeant David Gray, who was tendered by the Crown as anexpert witness to provide opinion evidence on the following areas: a. The identification and tracing of assets and cash derived from criminal activity, primarily drug trafficking and production,inclusive of the recognition of monies or assets as proceeds of crime and what markers to look for in doing so; b. money laundering in general including: (

i) the methods by which cash generated by, in particular, the drug industry, including marihuana production and sales, is convertedfrom foreign currencies to Canadian funds and why; (ii) which currencies are the most common to the drug trade; (iii) marihuana production, pricing, packaging, yields, and the market in and outside of Canada for bulk production of marihuana. Issue [2] The only issue to be addressed in this ruling is whether Sergeant Gray possesses sufficient expertise to be qualified as an expertin the above noted areas. If I find that he does, the other three criteria of the test set out in R. v.

Mohan, (SCC), [1994] 2S.C.R. 9, remain to be addressed. Testimony of Sergeant Gray [3] Sergeant Gray has been a member of the RCMP for 14 years. Prior to that, he was a lawyer who was called to the BritishColumbia bar in 1994. He worked for three years in the Lower Mainland, where he practised family law for approximately two years. Further, for another approximately 10-month period he did ad hoc work, on a full-time basis, for the Attorney General of Canada,primarily dealing with offences under the Narcotic Control Act and the Food and Drugs Act.

Sergeant Gray's curriculum vitae wasmarked as Exhibit A in the voir dire and will be attached as an appendix to this ruling when it is published. (NB - the curriculum vitae isnot attached to the published version). [4] After completing six months of RCMP basic training, Sergeant Gray worked on general duties in Richmond, British Columbia,for approximately one year. He remained with the Richmond detachment, but was assigned to general duties at the VancouverInternational Airport for approximately one year.

He was then assigned to general duties and community policing in the Richmonddetachment for approximately 15 months. For approximately one year after that, he was an investigator in the Marihuana ProductionUnit, working in the Richmond detachment. In that capacity he was responsible for the investigation of marihuana production offences. During that time he was involved in the investigation of over 100 indoor marihuana production operations. [5] In October 2003, Sergeant Gray went to work as an investigator in "E" Division in Vancouver, British Columbia, in theIntegrated Proceeds of Crime Section.

In that capacity his role was to identify and trace assets derived primarily from drug-relatedcriminal activity. He was involved in several major investigations relating to the production, trafficking, and exportation of marihuana,the importation and trafficking of cocaine, and the seizing, restraining, and forfeiting of assets derived from those activities. [6] Sergeant Gray left the Integrated Proceeds of Crime

Section in November 2005 and began an assignment as anon-commissioned officer in charge of the Marihuana Enforcement Team. The primary mandate of that unit was the investigation ofmarihuana production in Richmond. Sergeant Gray was the supervisor of a team of four investigators. [7] For approximately nine months in 2008, Sergeant Gray was a non-commissioned officer in charge of the Economic andComputer Crime Section.

In that capacity he investigated financial and fraud-related offences committed in Richmond. [8] In October 2008, Sergeant Gray returned to "E" Division and the Integrated Proceeds of Crime Section, this time in Surrey,British Columbia, as a supervisor/investigator. He was supervisor of a team of investigators that focused on proceeds of crime andmoney laundering offences. [9] From April 2011 to the present, Sergeant Gray has worked as a supervisor/investigator with the Combined Forces SpecialEnforcement Unit - Proceeds of Crime Team.

This is a provincial law enforcement unit comprised of investigators from the RCMP andmunicipal and city police forces to investigate organized crime groups. Sergeant Gray is the supervisor of a team of investigators thatfocuses on proceeds of crime and money laundering offences with respect to organized crime. [10] In addition to his assigned duties as a police officer, Sergeant Gray has attended various courses which are set out in hiscurriculum vitae and will not be set out in this ruling.

In the course of cross-examination it was determined that he had spentapproximately 36 days in total on courses\training relating to proceeds of crime issues. He has also given presentations, either on his

own or a co-presenter, at seven work-related workshops or courses, and at three community presentations from 2001 to the present. Position of the parties [11] The Crown submits that Sergeant Gray has unique and specialized skills, obtained through training and experience, that allowhim to be qualified in the areas outlined by the Crown which are set out in this ruling. The Crown argues that Sergeant Gray hasaccumulated a base of knowledge well beyond that of the average trier of fact. [12] Mr.

Nathanson, on behalf of Bich Nguyen, argues that although Sergeant Gray has some experience in relation to proceeds ofcrime investigations, that experience does not raise him to the level of an expert. Mr. Nathanson submits that in cases where witnessesare tendered, but there are no objectively discernible criteria for their expertise as there would be for someone with a professionaldesignation such as a doctor, scientist, or forensic accountant, the court needs to be particularly cautious in assessing qualifications. [13] Mr. Nathanson does not suggest that no police officer can ever be qualified as an expert.

However, he urges the court to bevigilant and to look at this witness's qualifications with a critical eye. Mr. Nathanson notes that there are many persons who have someknowledge in a particular field; however, that does not make them an expert. [14] Mr. Nathanson notes that Sergeant Gray has only worked in proceeds of crime related investigations for six of his 14 years withthe RCMP. He asserts that working in an area for five to six years does not make a person an expert in a particular field. Essentially, theposition advanced by Mr.

Nathanson is that Sergeant Gray's knowledge is not sufficient to allow him to be qualified as an expert in thisproceeding. [15] Mr. Nathanson raises a number of other issues which he asks the court to take into account in assessing Sergeant Gray'squalifications. He submits that Sergeant Gray, in his curriculum vitae and in his testimony, tended to overstate his experience andknowledge. In particular Mr. Nathanson points to the last paragraph of the curriculum vitae and submits that Sergeant Gray overstatedthe nature of instruction he provides to RCMP members. Mr.

Nathanson says it is important to look at this part of Sergeant Gray'scurriculum vitae when assessing other assertions contained therein. [16] Mr. Nathanson also submits that Sergeant Gray's employment as a lawyer is irrelevant to the assessment the court needs tomake in this proceeding. However, he argues that the assertions Sergeant Gray makes in regard to his employment as a lawyer ought tocause this court concern. Again Mr. Nathanson suggests that Sergeant Gray's assertions are an overstatement and possibly misleading. [17] Another issue raised by Mr.

Nathanson relates to Sergeant Gray's evidence that he did not make notes in his notebook aboutwhen he was asked to provide an opinion in this matter or in the course of preparing that opinion. He did not bring his notebook withhim when he testified the first day, and did not bring it the second day either. Moreover, Sergeant Gray said he would do the same thingagain. [18] Mr. Nathanson argues that Sergeant Gray's testimony regarding the notebook is not the hallmark of an expert.

Moreover, Mr.Nathanson submits it is inconceivable that someone who purports to be an expert would not make notes about matters relating to theexpert opinion he or she is asked to provide. Mr. Nathanson argues that the issue of the notes and of the overstatement in the curriculumvitae raise an issue of credibility that should be taken into account in the court's assessment of Sergeant Gray's qualifications. [19] Mr. Hartney, on behalf of Thu Thi Nguyen, adopts all of Mr. Nathanson's submissions. He points out, as well, that SergeantGray has no firsthand experience of speaking to money launderers.

He notes that in some of the cases dealing with experts there is anindication that the experts tendered by the Crown had done undercover work, or had listened to hours of wiretap, or had spoken topersons involved in the criminal activities under investigation. [20] Ms. Neurauter, on behalf of Nam Nguyen, adopts all of Mr. Nathanson's submissions.

The Law [21] The Crown must prove, on a balance of probabilities, that Sergeant Gray possesses sufficient expertise to be qualified as anexpert. [22] In order to be qualified as an expert, the witness must have acquired special or peculiar knowledge through study or experiencein respect of matters on which he or she undertakes to testify: see paragraph 27 in Mohan. [23] The qualification of a person as an expert does not depend upon the means by which the skill was acquired.

As long as thecourt is satisfied that the witness is sufficiently experienced in the subject matter at issue, the court will not be concerned with whetherhis or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence: see R. v. Marquard, (SCC), [1993] S.C.J. No. 119 at paragraph 35, citing The Law of Evidence in Canada (1992). [24] The expertise necessary to support admission of the opinion evidence of an expert is special knowledge and experience goingbeyond that of the trier of fact: see Marquard at paragraph 35. In R. v.

K.(A.), (ON CA), [1999] O.J. No. 3280, adecision of the Ontario Court of Appeal, Charron J.A., as she then was, described this criterion as follows at paragraph 103: As stated in Mohan, "the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge throughstudy or experience in respect of the matters on which he or she undertakes to testify." This criterion is usually not difficult to apply. However, it must not be overlooked.

Opinion evidence can only be of assistance to the extent that the witness has acquired specialknowledge over the subject-matter that the average trier of fact does not already have. If the witness's "special" or "peculiar" knowledgeon a subject-matter is minimal, he or she should not be qualified as an expert with respect to that subject. [25] The case law makes it clear that it is necessary to scrutinize a proposed expert's qualifications in the specific context of thepresent case: see R. v. Violette, 2008 BCSC 920 , [2008] B.C.J. No. 2766, and the cases cited therein at paragraph 13.

[26] In R. v. Sanghera, 2012 BCSC 995 , [2012] B.C.J. No. 1483, Holmes J. was asked to qualify a police officer as anexpert witness to give opinion evidence in two areas. One of those two areas was urban street jargon in the Lower Mainland of BritishColumbia. In addressing whether the police officer was a properly qualified expert she noted, at paragraphs 8 and 9, as follows: [8] The expertise necessary to ground qualification need not have come from academic study of the subject. Mr. Justice Hall recentlydiscussed expert evidence at some length in R. v. Aitken, 2012 BCCA 134.

In that case, the witness was a podiatrist, and his expertise inforensic gait analysis had been gained over a period of years through observation and experience in the professional realm. [9] Hall J.A. noted that while the factors in the well-known Daubert case may apply to proposed opinions that are scientific innature, experts may also be qualified "based on specialized knowledge acquired through training or experience in a particular discipline"(para. 79). For example, Hall J.A. referred to the following excerpt from R. v.

Abbey, 2009 ONCA 624 at para. 109, which concernedthe evidence of a sociologist, who was an expert in urban street gang culture in Canada: [109] Scientific validity is not a condition precedent to the admissibility of expert opinion evidence. Most expert evidence routinelyheard and acted upon in the courts cannot be scientifically validated.

For example, psychiatrists testify to the existence of various mentalstates, doctors testify as to the cause of an injury or death, accident reconstructionists testify to the location or cause of an accident,economists or rehabilitation specialists testify to future employment prospects and future care costs, fire marshals testify about the causeof a fire, professionals from a wide variety of fields testify as to the operative standard of care in their profession or the cause of aparticular event. Like Dr.

Totten, these experts do not support their opinions by reference to error rates, random samplings or thereplication of test results. Rather, they refer to specialized knowledge gained through experience and specialized training in the relevantfield. To test the reliability of the opinion of these experts and Dr. Totten using reliability factors referable to scientific validity is toattempt to place the proverbial square peg into the round hole.

Analysis [27] In reaching my conclusion about the qualifications of Sergeant Gray, I have considered his education and training and hisexperience in policing generally, and specifically in relation to proceeds of crime investigations. I have also considered the legalprinciples that apply to assessment of qualifications of an expert, and the submissions of counsel. [28] Defence counsel acknowledge Sergeant Gray has some knowledge in relation to proceeds of crime, but they argue that the levelof knowledge he possesses is not sufficient.

In considering that submission I have taken into account the observation made by CharronJ.A. in the K.(A.) decision, to the effect that a witness whose special or peculiar knowledge is minimal should not be qualified as anexpert. [29] In this case, it would not be fair to say that Sergeant Gray's knowledge is minimal. His six years of experience relating toproceeds of crime investigations may not be at the high end of years of experience, but it cannot be said that his knowledge andexperience is minimal. [30] I have considered the points raised by Mr.

Nathanson and adopted by the other defence counsel regarding the notebook and theoverstatements in the curriculum vitae; however, I do not find those submissions persuasive. [31] As noted in Mohan, an expert must have acquired special or peculiar knowledge through study or experience in respect of thematters on which he or she undertakes to testify. The case law does not suggest that in order for a witness to be qualified as an expert, heor she must be the best expert or the most qualified or the most knowledgeable.

As noted in Watt's Manual on Criminal Evidence atparagraph 29.02, deficiencies in expertise that do not render a witness incompetent to give expert opinion evidence go to the weight to begiven to the witness's evidence. [32] The deficiencies, and there were a number of them, pointed out by defence counsel in this case do not render Sergeant Grayincompetent to give expert opinion evidence. However, they will go to weight. Conclusion [33] Accordingly, I find Sergeant Gray is qualified to give expert opinion evidence on the areas identified by the Crown. (RULING CONCLUDED)