R. v. Nguyen et al Date:, 2012 BCPC 557

Citation: R. v. Nguyen et al Date: 20121130 2012 BCPC 0557 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 RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: P. Eccles; M. Wiancko Counsel for Accused: Thi Nguyen M. Nathanson; G. Ng Counsel for Accused: Thu Nguyen N. Hartney

Counsel for Accused: Nam Nguyen K. Neurauter Place of Hearing: Vancouver , B.C. Date of Hearing: November 30, 2012 Date of Judgment: November 30, 2012 Introduction [ 1 ] THE COURT: This voir dire concerns the admissibility of evidence given by Mr. John Kuziora, the managing director of foreign exchange services for RBC, regarding the rate offered by the bank for exchanging U.S. currency to Canadian currency during the period of 2003 to 2005 and how that rate compared to the exchange rate provided at Calforex during the same period. The Crown called Mr.

Kuziora to seek to establish, among other things, that a customer using RBC to exchange the amount of money allegedly exchanged by the accused in this case, roughly $18 million U.S. to $24 million Canadian, would receive a better exchange rate from RBC than the rate received from Calforex. The exchange rate that RBC could have provided would result in a saving to the client in the range of $250,000 to $300,000. [ 2 ] The question of the admissibility of Mr. Kuziora’s evidence arose because counsel for all three accused challenged the admissibility of such evidence through this witness.

In brief, the defence argues that Mr. Kuziora's evidence is not admissible because it is expert opinion evidence. Appropriate notice of the Crown's intention to call this evidence was not provided to the defence. (I note parenthetically that when I refer to the defence, I am referring to all three accused and all three defence counsel.) Accordingly, the evidence should not be admitted. The defence further argues that a voir dire should not be held. [ 3 ] For its part the Crown argues the evidence it intends to elicit from this witness is not expert opinion evidence at all.

At most, it might be characterized as lay opinion evidence. However, even if that were the case, there is nothing preventing Mr. Kuziora from giving lay opinion evidence that RBC would have given a better exchange rate. [ 4 ] Initially, I thought I could render a decision on the defence’s objection based on the submissions of counsel. However, after hearing the initial submissions from both the Crown and the defence, I concluded a voir dire was necessary because much turned on the specific nature of Mr. Kuziora’s anticipated testimony.

Accordingly, I declared a voir dire and advised counsel that they could make further submissions after Mr. Kuziora testified, in addition to the submissions they had already made. Evidence of Mr. Kuziora in the Voir dire [ 5 ] Mr. Kuziora testified that for the last three years, he has been the managing director of foreign exchange services for RBC across Canada. This includes, among other things, dealing with policies, pricing, training staff, and interacting with clients. Prior to undertaking his current responsibilities, Mr.

Kuziora worked in a number of different areas at RBC including as senior manager of pricing for business financial services, as a commercial account manager which included dealing with currency exchange matters, and as vice president of the RBC Windsor Banking Centre for a period of five years. His duties at the Windsor Banking Centre did not include being directly involved in foreign exchange transactions, but he was responsible for supervising employees who carried out those transactions. [ 6 ] Mr. Kuziora testified about RBC's procedure in regard to exchanging U.S. currency to Canadian currency for clients.

He said that the client usually approaches the bank. The bank's preference is that it does not conduct foreign exchanges with non-clients, but this is not an inflexible rule. Assuming that the party seeking to make a foreign currency exchange is a client and that the bank has undertaken its due diligence, the bank would take the client’s order. The bank would then source the funds and give the client a quote regarding the rate at which it is prepared to undertake the exchange. At that stage, the client can accept or decline the quote.

The client could also say it does not like the rate and ask the bank if it can do better. [ 7 ] The factors that determine whether the bank offers a better rate are the client’s ability to negotiate and the value of the client to the bank. In considering the value of the client, RBC will consider whether the client has a relationship with another bank or whether the client represents high value. Having taken all of this into consideration, the bank considers whether it has "room" to negotiate a better rate. Mr.

Kuziora said it is not unheard of for the bank to have razor-thin profit margins with certain clients in the range of one- one-hundredth of a cent for every dollar exchanged. In other words, for every dollar such a client exchanges, RBC makes a profit of one-one-hundredth of a cent. Mr. Kuziora said when he was at the Windson Banking Centre, on an annual basis, that Banking Centre conducted foreign exchanges for clients in various ranges.

The clients varied from those who did $5,000 to $10,000 of foreign exchanges per year to others who did foreign exchanges in the range of $5 million, $10 million, to $100 million. [ 8 ] Mr. Kuziora was asked whether a client who exchanged $18 million U.S. to $24 million Canadian between 2003 and 2005 would be considered a significant client. He said it would. He would give such a client a better exchange rate. [ 9 ] Mr.

Kuziora was asked to explain the meaning of "interbank rate." He explained that foreign exchange transactions take place "in the air" around the world between any two entities who can find each other. Such exchanges take place electronically and various services, for example Bloomberg, monitor foreign exchanges that take place on a regular basis. The interbank rate refers to the rate at which two banks will exchange currencies in blocks of $5 million and up. He said Canadian and U.S. currencies are the most frequently exchanged currency pairing. [ 10 ] Currency exchange rates vary and are constantly updated.

The Bank of Canada maintains a record of foreign exchange rates on a daily basis which provides information on the exchange rates as of noon and close-of-business, Eastern time. The Bank of Canada maintains historical information on its website. Mr. Kuziora said he provided a URL to the Crown but he did not specify what it was in court. Mr. Kuziora explained that, according to the Bank of Canada, they do sampling of interbank rates from sources at those two

times. Occasionally, RBC refers to the Bank of Canada rate particularly if it is looking at history in the marketplace. [ 11 ] Mr. Kuziora said that in preparation for coming to court, he was provided with Appendix A which is a document attached to the expert report prepared by Sergeant Gray who testified earlier in this trial. Appendix A contains a list of currency exchange transactions from 2003, 2004, and 2005 which were apparently conducted by the three accused through Calforex, a currency exchange house in Vancouver. Mr. Kuziora said he is familiar with currency exchange houses.

RBC considers them their primary competitors. Appendix A sets out the date of the transaction, the amount apparently tendered in U.S. funds, the amount of Canadian funds received, a reference number, and the name of the individual conducting the exchange. [ 12 ] Using the information provided in Appendix A, Mr. Kuziora prepared a spreadsheet. He calculated the exchange rate received from Calforex for each transaction by dividing the amount of Canadian dollars received by the amount of U.S. dollars tendered.

He also calculated the number of transactions that occurred between the time of one transaction entry to the time of the next entry. He assumed that the reference numbers given to the transactions by Calforex were in chronological order. [ 13 ] Mr. Kuziora also determined the rate reported by the Bank of Canada on its website at noon and at the close-of-business for each day on which transactions were listed in Appendix A.

He compared the exchange rate given by Calforex, which he had calculated as explained above, to the Bank of Canada noon rate and the Bank of Canada close-of-business rate and calculated the difference. [ 14 ] Mr. Kuziora was asked what exchange rate would be provided for a client that was conducting the number of exchanges shown in Appendix A. He said it would depend on various factors, but probably RBC would provide an exchange rate at 10 to 20 points. He was asked whether he had found any exchange rate in the 10 to 20 point range in Appendix A.

He said he had found none but that there were several transactions that did not make sense. [ 15 ] Mr. Kuziora was asked how the RBC rate for the exchange of foreign currency would relate to the Bank of Canada rate. He said the Bank of Canada rate is a sampling of the interbank rate in the foreign exchange market at noon and close-of-business each day. He said that the Bank of Canada, from what he could tell from all his references to the Bank of Canada website in the past and while developing the spreadsheet, is a very good comparison or very good proxy for the interbank rate at any given point in time.

He also said that RBC does not use the Bank of Canada rate. In essence, there is no such thing as a Bank of Canada rate because it is a sampling of the interbank rate in the marketplace. He said RBC uses the interbank rate to set its foreign exchange rate. RBC would price its foreign exchange rate at a premium over the interbank rate because the interbank rate is RBC’s cost and they need to make a profit. [ 16 ] Mr.

Kuziora was asked if he was a supervisor looking at a commercial client profile, as set out in Appendix A, from 2003 to 2005 and, if he accepted that entity as a client and was prepared to do business with it, what would the difference be in the exchange rate on this volume of business between RBC and Calforex. Mr. Kuziora said if there was that volume of business and if the entity was an acceptable RBC client, the RBC exchange rate would be 20 to 25 points above the interbank rate. RBC would make one-quarter of a cent for every dollar exchanged.

On the other hand, the Calforex rate, based on the rates he calculated for the currency exchanges in Appendix A, was one-and-a-half cents per $1 of currency exchanged. He further said that based on a volume of $24 million, one would be looking at a range of $300,000 in earnings for Calforex and $50,000 to $60,000 earnings for RBC on the same volume. [ 17 ] Mr. Kuziora testified it is RBC’s business practice to get information from their clients. He said RBC needs to know who they are dealing with to ensure they are dealing with legitimate transactions.

The type of information RBC obtains includes authenticating that a business is a legitimate business, checking that the business is properly registered, confirming ownership of the business, confirming the identification of those who are authorized to engage in transactions on behalf of the business, and confirming that the transactions are in keeping with the purpose or intended purpose of the accounts. RBC typically seeks a source of funds declaration for $10,000 or more. If RBC does not know the source of funds, they will not transact business with a client. [ 18 ] That is a fairly detailed

summary of Mr. Kuziora's evidence in direct. All three defence counsel had no questions for Mr. Kuziora on the voir dire . Position of the Parties [ 19 ] I will briefly summarize the extensive and forceful arguments made by the parties The Defence [ 20 ] Mr. Nathanson submitted that Mr. Kuziora’s evidence should not be admitted because the evidence he gave is in the nature of expert opinion evidence. Defence counsel were not provided with notice as required under the Evidence Act , nor did they receive a curriculum vita or an expert report or

summary of Mr. Kuziora's evidence. Mr. Nathanson submits that the evidence elicited from Mr. Kuziora in the voir dire is a classic example of the kind of evidence that would be tendered through an expert witness. He points out that Mr. Kuziora has no personal knowledge of matters relating to this case. He was given documents by the Crown and he compared those documents to other information, which included hearsay evidence, and he took certain assumptions into account to arrive at an opinion. [ 21 ] Mr.

Nathanson points out that the Crown in its initial submissions indicated RBC did not keep records of foreign currency exchange rates going back to the dates covered by the charges before the court, 2003 to 2005, therefore Mr. Kuziora cannot specifically say what the RBC rates were during that time. Mr. Nathanson submits it is clear from Mr. Kuziora's evidence and the spreadsheet he prepared that he undertook an analysis of information placed before him, including information from Calforex records contained in Appendix A, and interpreted that information. [ 22 ] Mr.

Nathanson submits the Crown is attempting to establish through this witness that if the accused had met the RBC disclosure requirements and had been accepted as clients for currency exchange transactions, the exchange rate they would have received would have yielded a better return than that given by Calforex. However, that would have depended on how hard they would have pressed RBC for break on the point spread and thus on the commission charged. Mr. Nathanson submits this is a complete answer to the Crown's position that Mr. Kuziora is simply "doing the math".

This evidence indicates that the situation is not black and white and is subject to negotiation. The defence is left to cross-examine the witness in a vacuum. Mr. Nathanson asks -- how can one arrive at a

conclusion about a negotiation process? He argues it is purely hypothetical. He also asks -- how does one arrive at a conclusion aboutsomething that never occurred? Mr. Kuziora's evidence is not about what he saw, but about what RBC apparently would have done ifcertain conditions had been met. Mr. Nathanson points out this is purely hypothetical. [23] Mr. Nathanson further argues that Mr. Kuziora's evidence is based on hearsay, namely, the Appendix A to Sergeant Gray'sreport and Bank of Canada information obtained from the Bank of Canada website. Mr. Nathanson points out that Mr.

Kuziora gave noevidence about what the RBC exchange rate was for the period of time in question. Instead, he extrapolated a rate by using historicalinformation from the Bank of Canada website. That information was not placed before the court and the defence has no way of testingit. [24] Mr. Nathanson further argues that Mr. Kuziora's evidence is not lay opinion evidence. He acknowledges that the R. v. Graat(1983), (SCC), 2 C.C.C. (3d) 365, makes it clear that the list of subjects on which a layperson may give opinionevidence is not closed.

However, there are unifying features in the cases where such evidence was admitted. The most salient featuresare that the observations the layperson relies on to form his or her opinion must be personally made and the subjects upon which anopinion is given must be subjects on which an ordinary person could give an opinion. Mr. Nathanson submits the law has drawn abright-line distinction between lay opinions and expert opinions. He argues that the evidence given by Mr. Kuziora clearly falls in thecategory of expert opinion.

He says that 12 people off the street would not be able to explain how foreign currency exchange rates workand how those rates are arrived at. Mr. Nathanson submits Mr. Kuziora essentially testified about the practice and procedure relating toforeign currency exchanges, the pricing for currency that is exchanged including the pricing arrived at by the Bank of Canada, how ratesare determined and fluctuate, and banking practices within the foreign exchange context. Additionally Mr.

Kuziora described, in part,how the financial system works and how currency exchange rates are determined by agencies such as Bloomberg and Reuters. Mr.Nathanson submits that only someone with special expertise in banking and currency exchanges can give that kind of evidence. Heargues that this kind of specialized information is well beyond the competence of the layperson. [25] Mr. Hartney on behalf of Ms. Thu Nguyen adopted Mr. Nathanson's submissions, but also made brief submissions on severalpoints. [26] Ms. Neurauter on behalf of Mr. Nam Nguyen adopted the arguments made by Mr. Nathanson.

The Crown [27] The Crown argues that the evidence Mr. Kuziora provided is not opinion evidence and is admissible just like the evidence ofany other witness. Without conceding this first point, the Crown argues in the alternative that the evidence given by Mr. Kuziora is layopinion evidence which ought to be admitted. [28] The Crown argues that Mr. Kuziora provided factual evidence based on his experience as an employee at RBC. The Crownfurther argues that the evidence given by Mr. Kuziora was based on his own observations about what takes place at RBC. Mr.

Kuzioratestified about what an individual would pay at RBC for the exchange of “X" amount of currency. The Crown acknowledges Mr.Kuziora prepared a spreadsheet, however, it submits the spreadsheet was based, in part, on information already before the court throughother witnesses. Other information contained on the spreadsheet is information readily available to Mr. Kuziora as part of his duties atRBC. There is information on the spreadsheet based on calculations Mr. Kuziora has undertaken, but it is based on "facts." [29] The Crown submits Mr. Kuziora is not providing an opinion, he has simply "done the math".

The Crown submits Mr.Kuziora's evidence provides a base from which the parties and the court could do their own calculations. Mr. Kuziora has simplifiedmatters by doing the calculations for us. Mr. Kuziora has simply provided evidence about the bank's practices regarding the exchange ofcurrency including its policies and practices with regard to the clients they accept and the rates they offer for currency exchanges. Additionally, Mr. Kuziora provided evidence about the difference between the rates charged by RBC for currency exchanges and therate charged by Calforex.

The Crown submits such evidence is not opinion evidence, but recitation of facts regarding foreign exchangepractices at RBC. [30] In the alternative, Crown argues that if Mr. Kuziora's evidence is characterized as opinion evidence, then it falls in the categoryof lay opinion and should be admitted. The Crown relies on Graat for the proposition that non-expert witnesses have been allowed togive opinion evidence on a number of subjects. The Crown argues Mr. Kuziora was simply giving a lay opinion on the value of a dollarin the context of currency exchanges.

The Crown points out that in the Graat case the court noted it could see no reason in principle orin common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he was able to moreaccurately express the facts he perceived. [31] The Crown reviewed the spreadsheet prepared by Mr. Kuziora and points out that most, if not all, of it is factual informationwhich was either testified to by other witnesses or by Mr. Kuziora.

The Crown argues the only live issue is what value RBC would usewhen setting a currency exchange rate for a customer who carried out currency exchanges in the amount and value of the exchangesallegedly carried out by the three accused. The Crown says a witness can give an opinion on value. It argues that Mr. Kuziora'sevidence with respect to the rate RBC would give such a customer for a currency exchange is no different than a BMW car salesmanwith years of experience in the business giving evidence on the value of a 2003 BMW. The Crown submits Mr.

Kuziora is entitled togive a compendious statement regarding the value of a currency exchange rate that would have been given by RBC. The Crown notesMr. Kuziora was not asked any questions going to the ultimate issue in this case, namely, whether the facts before the court constitutemoney laundering. Applicable Legal Principles [32] The opinion rule is a general rule of exclusion. In a number of cases including R. v. A.K., (ON CA), [1999]O.J. No. 3280 (Ont.C.A.) and R. v. Abbey, (SCC), [1982] S.C.J. No. 59, it has been noted that witnesses testify as tofacts.

As a general rule, witnesses are not allowed to give any opinion about those facts. It is well-established that generally opinionevidence is not admissible. It is excluded because it is up to the trier of fact to draw inferences from the evidence and to form his or heropinions on the issues in the case.

[33] In R. v. K.A., Charron J.A., as she then was, noted that absent a favorable ruling, a party is not allowed to adduce opinionevidence at trial. She further noted that in some cases, it may be possible to rule on the admissibility of the proposed evidence on thebasis of counsel's submissions alone. However, it may at times prove necessary to hold a voir dire in order to properly consider allrelevant factors; see paragraph 73. That is what was done in this case. [34] In R. v.

Abbey, the court adopted the definition of "opinion" set out in Cross on Evidence as follows: In the law of evidence "opinion" means any inference from observed fact, and the law on the subject derives from the general rule thatwitnesses must speak only to that which was directly observed by them.

The court also noted that where it is possible to separate fact from inference the witness may only testify as to fact. [35] In McWilliams’ Canadian Criminal Evidence, vol.1, 4th ed., loose-leaf (updated September 2012), (Aurora, Ontario, CanadaLaw Book 2007) at 12:10 "opinion" is defined as follows: An opinion is an inference, deduction, impression or conclusion from an observed fact or facts. Secondary inferences, conclusionsderived from primary facts, are exclusively within the province of the trier of fact. [36] In R. v.

A.K., Charron J.A. also commented on the nature and reason for the "opinion rule" at paragraphs 70 to 72 as follows: [70] Before embarking upon a consideration of the criteria for admissibility of expert opinion evidence, it is important to recognizethe nature of and reason for the "opinion rule". [71] The opinion rule is a general rule of exclusion. Witnesses testify as to facts. As a general rule, they are not allowed to give anyopinion about those facts. Opinion evidence is generally inadmissible.

Opinion evidence is generally excluded because it is afundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or heropinions on the issues in the case. Hence, as will be discussed below, it is only when the trier of fact is unable to form his or her ownconclusions without help that an exception to the opinion rule may be made and expert opinion evidence admitted.

It is the expert'sprecise function to provide the trier of fact with a ready-made inference from the facts which the judge and jury, due to the nature of thefacts, are unable to formulate themselves ... [72] The line between fact and opinion must therefore be kept clearly in mind. A witness, who is an expert in a particular field, maybe called simply to give evidence on the facts he or she has observed without offering an opinion based on those facts. To that extent,and if otherwise admissible, this evidence is not subject to the opinion rule.

This would be the case, for example, where a treatingphysician is called to describe the injuries he or she observed on a patient without offering any opinion on the matter. It is only when awitness purports to give an opinion on certain facts that the opinion rule comes into play. If, in our example, the treating physician goeson to say that it is usual or unusual, as the case may be, to observe this kind of injury in a patient who alleges that sexual intercourse hastaken place, the witness is offering opinion evidence and the evidence will be subject to the general rule of exclusion.

It will only beadmissible if certain established criteria are met. [37] In R. v. Collins, (ON CA), [2001] O.J. No. 3894, Charron J.A. again had occasion to comment on opinionevidence. In that case, she was addressing the admissibility of experiment evidence, but her comments are apposite to the issue raised inthis case. She wrote as follows at paragraph 17: In the law of evidence, an opinion means an "inference from observed fact": see R. v. Abbey (1982), (SCC), 68 C.C.C.(2d) 394 at 409.

As stated in Abbey, as a general rule, witnesses testify only as to observed facts and it is then up to the trier of fact todraw inferences from those facts. A lay witness will be permitted to give an opinion only with respect to matters that do not requirespecial knowledge and in circumstances where it is virtually impossible to separate the facts from the inferences based on those facts. Awitness testifying that "a person was drunk" is a common example of an opinion that can be provided by a lay witness. See R. v. Graat(1982), (SCC), 2 C.C.C. (3d) 365 (S.C.C.) for a review of the law on non-expert opinion.

Otherwise, opinion evidencewill only be received with respect to matters calling for special knowledge beyond that of the trier of fact. In those cases, an expert in thefield may be permitted to provide the judge and jury with an opinion, that is "a ready-made inference which the judge and jury, due tothe technical nature of the facts, are unable to formulate" (Abbey at 409). The law as to expert opinion evidence was authoritativelyrestated in Mohan, supra. Before expert opinion evidence can be admitted, the evidence: (

a) must be relevant to an issue in the case; (

b) itmust be necessary to assist the trier of fact; (

c) it must not be subject to any other exclusionary rule; and (

d) it must be given by aproperly qualified expert. [38] In McWilliams’ Canadian Criminal Evidence, it is noted at paragraph 12:20:10 that in some circumstances a witness' evidencemay seem to "straddle that hazy line" between expert testimony and lay opinion testimony. It is further noted that where a witness’answer is founded in special knowledge, experience and training it is likely subject to expert not lay opinion rules. The case of R. v.Lewis 2012 ONCA 388 is quoted in McWilliams’ as an example of such a circumstance. [39] In R. v. Lewis, the accused was charged with importing cocaine.

A Border Services inspector was called to give evidence aboutthe screening interview with the accused during which the inspector became suspicious. Inspector Bellissimo's testimony surroundingthe "indicator questions" gave rise to the principal ground of appeal. She was not qualified as an expert witness. However, she wasasked about what she had been taught in her training about "cash paid tickets" and "short notice" bookings and why the appellant'sresponses to the two "indicator questions" raised a suspicion relating to drugs.

Defence counsel objected to this evidence as inadmissiblehearsay and opinion evidence. [40] At paragraphs 22 and 23 of that decision Blair J.A., writing for the court, made the following comments on the issue of opinionevidence:

[22] Although the Crown disavows any intention of relying on the Bellissimo testimony as opinion evidence, and did not seek to qualify the Inspector as an expert, the practical reality is that the impugned testimony was opinion evidence. Moreover, it was opinion evidence clothed with the additional aura – and therefore credibility – of a border services official, who would be seen by the jury to be knowledgeable, experienced and trained in dealing with situations involving people seeking to bring drugs into the country ...

I do not accept the contention that Inspector Bellissimo’s evidence on the issue of cash payments and the purchase of tickets on short notice was the type of evidence that members of the jury would know from their own life experience and common sense.

It was a particularized type of information relating to international drug importing, falling within the knowledge of people working in that area and beyond the ken of ordinary jurors. [23] While there may be situations were a properly qualified expert could give such evidence, no attempt was made to qualify Inspector Bellissimo to do so, and, as noted above, the evidence was highly prejudicial to the appellant. The only significant issue at play during the trial was whether the appellant knew that the “wine bottles” contained a controlled substance.

The gist of Inspector Bellissimo’s testimony with respect to the cash payments and last-minute bookings for tickets was that the appellant used “drug money” (inferentially from her distributor) in order to buy her ticket for cash so that she wouldn’t leave a “paper trail” back to that distributor – in short, that the appellant was a courier. It is a small step from the acceptance of that evidence to the conclusion that the appellant knew about the cocaine in the bottles. Analysis [ 41 ] The first issue I will address is whether Mr. Kuziora's evidence is in whole or in part opinion evidence.

It is clear, subject to relevance and any applicable exclusionary rules, that Mr. Kuziora's evidence regarding his position at RBC and RBC’s practices and procedures in relation to foreign exchanges, including evidence about how currency exchange rates work, how rates are determined, and RBC’s banking practices within the foreign exchange context, are factual details about RBC’s practices and policies. It is also clear that Mr. Kuziora had the requisite experience and knowledge to provide evidence on those factual details. However, Mr.

Kuziora's evidence went further than simply providing factual details about the policies and practices of the financial institution where he works. He provided testimony which, in my view, amounted to providing an opinion. For example: (

a) He opined that between 2003 in 2005, a client who exchanged $18 million U.S. for $24 million Canadian would be considered a significant client of RBC and that he would give that client a better exchange rate then he would to others. (

b) He opined that Canadian and U.S. currencies are the most frequently exchanged pairing of currencies. Given his evidence that foreign exchange transactions take place in the air around the world between any two entities who can find each other and that such exchanges take place electronically, this statement is clearly nothing but his opinion, albeit that it is based on his years of experience with RBC. (

c) He determined the rate historically reported by the Bank of Canada at noon and close-of-business for each day in 2003 to 2005 on which transactions with Calforex and the accused allegedly took place, as listed in Appendix A. Given his evidence that the Bank of Canada rate is merely a sampling of the interbank rates from various sources and that RBC does not generally use the Bank of Canada rate, his evidence is clearly an opinion. It is based on inferences that the historical rate listed on the Bank of Canada website was accurate and that it would have been the rate RBC would have offered. (

d) He testified that although RBC uses the interbank rate when calculating the exchange rate it offers clients, the Bank of Canada rate was a very good comparison or very good proxy for the interbank rate. However, he also said that when RBC sets its exchange rate, it builds in a profit above the interbank rate because the interbank rate is what the currency costs the bank. He did not give evidence as to what the RBC rate was during the relevant period. Accordingly, he cannot say as “a fact” what the rate might have been; therefore, he was giving an opinion, albeit an educated opinion. (

e) He referred to the Bank of Canada “rate,” yet at the same time testified that there is no such thing because the rate is just a sampling. Therefore, the importance he places on the Bank of Canada rate in these proceedings reflects his opinion on the value of that information as a tool. The rate itself cannot be an observed “fact” if it is a sampling from various sources unknown to the witness. (

f) He said that if he had been a supervisor in the timeframe covered by the transactions in Appendix A, he would give 20 to 25 points above the interbank rate. This conclusion was based on a lot of "ifs" i.e., if the client were accepted, if there was that volume of business, and so on. Clearly, this is simply speculation on his part. He is looking backwards through a crystal ball. How can he state as “a fact” what he would have done that many years ago? [ 42 ] A review of Mr.

Kuziora’s evidence leads me to conclude that while some of his evidence was factual background evidence, his testimony regarding exchange rates that may have been available at the relevant time periods and his comparison of the rates RBC would have given to those that Calforex gave is simply opinion evidence based on his experience and background knowledge as a banker. It is not factual evidence. [ 43 ] The second issue is whether Mr. Kuziora's evidence is lay opinion evidence. The Crown's alternative argument regarding the admissibility of Mr.

Kuziora's evidence was that if the court found his evidence to be opinion evidence then it is nevertheless admissible as lay opinion evidence. The Crown relies on Graat as well as R. v. Hill 17 OAC 309 and R. v. Ilina 2003 MBCA 20 as examples of cases where the courts have admitted opinion evidence. In addition to the submissions of counsel, I was assisted in my analysis on this issue by the helpful review of the history of and cases regarding lay opinion evidence contained in

chapter 12:20:10 in McWilliams’ Canadian Criminal Evidence . In particular, I noted the following passage: While the history of the lay opinion evidence rule has been fraught with ambiguities, a modern statement of the lay witness opinion rule describes its receipt ability in these terms:

The objections raised by defence counsel was that lay witnesses were being asked to give opinion evidence as opposed to simply stating facts relating to their observations. [This is a reference to Sopinka.] Sopinka, The Law of Evidence in Canada , 2nd ed. (1999), deals with this at p. 609 as follows: Courts now have greater freedom to receive lay witnesses opinions if, (1) the witness has personal knowledge; (2) the witness is in a better position than the trier of fact to form the opinion; (3) the witness has the necessary experiential capacity to make the conclusion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility described the facts she or he is testifying about.

But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences. It is always a matter of degree. As the testimony shades towards a legal conclusion, resistance to admissibility develops. Accordingly, where the opinion is rationally based on the perception of the ordinary witness and is helpful to a clear understanding of the witnesses testimony, it is generally receivable.

It has been said that non-expert opinion evidence is generally inadmissible unless: (1) by permitting the lay witness to testify in the form of an opinion, the witness "is able more accurately to express the facts ... perceived; (2) the facts from which witness received an "impression" were too "evanescent in their nature" (fading or disappearing quickly from site or existence) "to be recollected"; and (3) the inference or impression narrated by the witness is steeped in facts "too complicated to be separately and distinctly" related. [ 44 ] In this case, a review of Mr.

Kuziora's evidence leads me to conclude that the opinions expressed by the witness were not necessary to accurately express the facts perceived. Mr. Kuziora did not perceive any facts in the same way that the lay witnesses did in Graat , Ilina , and Hill . This was not a situation where Mr. Kuziora received an impression from facts that were fading or disappearing quickly from his sight or existence. I also find that this was not a situation where a compendious expression of fact and opinion were inextricably intertwined. [ 45 ] In my view, a large part of the evidence provided by Mr.

Kuziora is not the kind of evidence about which an ordinary witness can give an opinion. In Graat , where the issue was degree of intoxication, the court concluded it was not a case for the exclusion non- expert testimony because the matter called for a specialist. In doing so, the court acknowledged that there may be circumstances where specific, technical, or specialized testimony is necessary in order that the tribunal properly understand the relevant facts.

The court found that intoxication and impairment of driving ability are matters which a modern jury could intelligently resolve on the basis of common ordinary knowledge and experience and that the guidance of an expert was unnecessary. [ 46 ] My conclusion in this case is that the evidence provided by Mr.

Kuziora relating to how foreign currency exchanges work, how the rates are set, the compilation of rates by the Bank of Canada, and other evidence related to the rates offered in cases where currency is exchanged, is specialized evidence which a modern jury could not intelligently resolve on the basis of common ordinary knowledge and experience. Accordingly, I conclude that the evidence Mr. Kuziora gave on these points was not lay opinion evidence; instead, it was in the nature of expert opinion evidence. The Crown has not provided the required notice and has not qualified this witness as an expert.

Accordingly, his evidence on these points is inadmissible. [ 47 ] In the event my conclusion that the testimony of Mr. Kuziora was opinion evidence that ought to have been given by an expert is incorrect, I wish to address a third issue. That issue is whether the basis of Mr. Kuziora's evidence about rates was founded on inadmissible hearsay evidence. Mr. Kuziora made it clear his evidence about the currency exchange rates that would have been available in the period of 2003 to 2005 was based on rates published by the Bank of Canada on its website. Mr.

Kuziora explained he obtained information from the Bank of Canada website regarding the noon and close-of-business rates published by the Bank of Canada. He further explained those Bank of Canada rates were a sampling of interbank rates from sources that were not specifically identified in his evidence. He later suggested that the use of the term "rates" was a misnomer because, in essence, there is no such thing as a Bank of Canada rate since the Bank of Canada information is simply a sampling of the interbank rates available in the marketplace at any given time. [ 48 ] Mr.

Kuziora essentially used what might loosely be called business documents of the Bank of Canada. As I understood his evidence, those documents are created by the Bank of Canada by sampling transactions that take place in the marketplace on a daily basis. Accordingly, in my view, there are two levels of hearsay. First, the information Mr. Kuziora obtained from the Bank of Canada website is hearsay. He did not produce the information. He did not provide the reports issued by the Bank of Canada other than reproducing numbers he saw on the website on the spreadsheet he prepared.

He cannot say what transactions were sampled on any particular day and so on. Second, the information apparently provided by the Bank of Canada is itself hearsay in that it is a sampling of foreign exchange transactions between two banks. There is no evidence of how that sampling took place, what transactions were monitored, and so on. Accordingly, I find that the information Mr. Kuziora relied on from the Bank of Canada to extrapolate what the RBC bank rate would have been in the period of 2003 to 2005 is hearsay, in fact at points double hearsay, and is not admissible. [RULING ON VOIR DIRE CONCLUDED]