r v. CHUN, 2011 QCCQ 4963

JH 5280 R. c. Chun 2011 QCCQ 4963 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-017422-046 DATE: 17 May 2011 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J. C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v. CHUN, Sy Veng LECK, Leng Ky PENG HENG OR GOLD Inc. A & A SERVICES MONÉTAIRES Inc.

Accused _____________________________________________________________________________ JUDGMENT ON VOIR DIRE (Admissibility of Expert Testimony) _____________________________________________________________________________ [ 1 ] I conclude that Mr. Garry Clement is qualified to testify as an expert in relation to questions of drug trafficking, proceeds of crime related to drug trafficking and Asian organised crime. These are subjects of specialised expertise that are not within the knowledge of the trier of fact in this case.

Given the theory of the prosecution, I have no hesitation in concluding that his evidence is admissible within the meaning of the principles set out in Mohan . His evidence is (

a) relevant and material and (

b) necessary. The other two criteria stated in Mohan [1] are not at issue on this voir dire . [ 2 ] However, it is not permissible for Mr. Clement to testify by giving his opinion as to the weight or probative value of the testimony given by other witnesses concerning contested facts in this case. This does not mean that the witness cannot be asked questions concerning testimony given by other witnesses. It means, and I repeat, that Mr.

Clement may not give his opinion as to inferences or conclusions that the trier of fact should draw from the testimony of other witnesses concerning contested matters of fact in this case. [ 3 ] The witness may identify information that forms the premise for his opinion and, within qualified areas of experience and expertise that are not shared by the trier of fact, he may give an opinion concerning the inferences and conclusions that are supported by the premise and that might be drawn by the trier of fact. Three limitations apply.

The witness must not tell the trier of fact what inferences or conclusions should be drawn from the premise of his opinion and, second, he must not tell the trier of fact what weight or probative value should be ascribed to the inferences and conclusions stated in his opinion.

Third, his testimony must not trespass on the ability of the trier of fact, without expert assistance, to draw appropriate inferences and conclusions from non-expert evidence that is already before the court. [ 4 ] Any questions concerning the testimony of other witnesses must be formulated on a hypothetical premise and must not seek an opinion on the weight or probative value of the testimony given by another witness. Any evidence given by Mr. Clement on the voir dire that is inconsistent with this principle is inadmissible at the trial.

It is inadmissible because it is not necessary for an expert to perform the functions reserved to the trier of fact. The testimony of an expert can be necessary only to the extent that it enables the trier of fact to draw inferences or conclusions about relevant information that he or she would not otherwise be able draw upon a careful assessment of the evidence at trial that is admissible and admitted.

[ 5 ] Mr. Clement’s testimony is not inadmissible because it touches upon matters of fact that are material to the ultimate issues before this court. It is inadmissible to the extent that it purports to substitute for the fact-finding functions reserved to the trier of fact. [ 6 ] I invite the parties to examine the evidence given by Mr. Clement on the voir dire and on 24 May 2011 to make further submissions concerning any specific passages in relation to the principles I have stated here. If the parties proceed in this manner, I will rule on each passage thus identified.

Alternatively, the prosecution may elect to call Mr. Clement to testify at the trial and to examine him in chief in accordance with this judgment. ____________________________________ PATRICK HEALY, J. C.Q. Me Marie-Michèle Meloche Me Fabienne Simon For the Prosecutor Me Raphaël H. Schachter, c.r. Me Dominique St-Laurent For the Accused Date of hearing: 4 May 2011