2014 MBPC 5, 2014 MBPC 5

Cite # 2014 MBPC 5 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Cindy Sholdice and David Mann ) for the Crown - and – ) ) Marcus Baird ) Evan Roitenberg and Laura Robinson ) for the Accused ) Judgment on voir dire delivered: February 13, 2014 Robert Heinrichs, P.J. INTRODUCTION [ 1 ] The Crown seeks to have Constable Dennis Robert declared an expert at this trial, in the areas of dog handling, how his tracking dog, Reya, responds to human scent, how Reya communicates her findings to him, and his

interpretation of those communications. Defence Counsel agrees to the first two areas of expertise the Crown is asking for, but not for the latter two. CONSTABLE ROBERT [ 2 ] Constable Dennis Robert joined the Winnipeg Police Service in 2002 and has been with their canine unit since 2009. His Curriculum Vitae was filed as an Exhibit in this voir dire . It outlines many years of dog handling and dog training experience. In addition, he has attended a number of dog rearing, handling and tracking courses or seminars.

To date he has over 600 hours of quarry experience. [ 3 ] Constable Robert’s dog partner, “Reya”, is a female Belgian Malinois, also known as a Belgian Shepherd Dog. Reya first spent some time with Constable Robert when she was eight weeks old; when she was eight months of age, she was returned to him to begin her training, at which time she started with the tracking courses. Three different levels of tracking were completed: rural, industrial and urban. There were shorter and then longer tracks at each level. There was training in different settings and terrains and in all sorts of weather.

Distractions and cross tracks were obstacles she had to deal with. She was required to pass each level before moving on to the next level. In addition to the tracking, there was obedience training and other types of searches that were trained for, including narcotics. Constable Robert explained that the temperature can be a significant factor in tracking a scent. In extreme cold, for example in -30 degrees Celsius with a wind chill, a scent will freeze in 10 to 15 minutes. In extreme heat, a scent will also not be suitable for tracking within a short period of time.

As well, the higher the humidity, the longer the scent will remain strong. He also explained that there are environmental scents and human scents. What Reya is specifically trained to follow is called an "enhanced scent" or “fear scent”. It is given off by human adrenalin when a person is excited or fearful, such as when someone is being chased. People give off scents all of the time, as human cells die and fall off and leave a trail. Every person has their own unique scent. This happens because of what the person eats, what deodorant they use, the clothing they wear and so forth.

A dog’s sense of smell is hundreds of times greater than humans and so they can distinguish the different scents. [ 4 ] Constable Robert explained that Reya has a different harness or outfit for each task she is involved with. When her tracking harness is on, Reya knows she is to be tracking human scent. He is able to see when she picks up a track as she will no longer be searching about or sniffing the air; her nose will be to the ground and she will be pulling at the leash to keep going. The stronger the scent, the more intense she is.

The reason why she pursues the scent is because she knows there will be a reward for her at the end. [ 5 ] Validating is the term for successfully completing an unknown track that is set out. Reya successfully validated in all General Patrol agendas, including narcotics, and so in August, 2009, she started her police duties with Constable Robert. Constable Robert testified that he is confident of Reya's tracking abilities. [ 6 ] Since 2009, Reya has been validated in all General Patrol and Narcotic Agendas each year, through 2013.

Constable Robert testified that if a tracking dog was ever not successful in validating, they would go through remedial training until they could successfully pass the required levels. Constable Robert noted that Reya has never failed at this; she has always successfully validated.

[7] Reya’s record for tracking arrests and evidence located are as follows: 2009: 8 tracking arrests and evidence located 5 times. 2010: 12 tracking arrests and evidence located 12 times. 2011: 20 tracking arrests and evidence located 45 times. 2012: 24 tracking arrests and evidence located 19 times. 2013: 9 tracking arrests and evidence located 1 time. 2014: 1 tracking arrest so far. [8] The totals are 74 tracking arrests and evidence located 82 times. [9] Constable Robert testified that, in his statistics, the tracking arrests include the total number of suspects apprehended byReya.

On occasion this will have included more than one suspect apprehended at one time. Additionally, there are times whenevidence is located during the same tracking when one or more suspects are apprehended. [10] Constable Robert testified that Reya now has approximately 5 years of street experience.

He has now done between 300 and500 tracks with Reya; however, he has not kept a running record of: • When he and Reya are called in to try and locate a track and no track is found; • When the scene is too contaminated to try and locate a track; • When Reya is unsuccessful in locating anyone or any evidence after commencing with a track; or • How many of the tracking arrests, or evidence located, have resulted in an arrestee being convicted of an offence, discharged oracquitted of an offence or offences charged with as a result of the tracking. [11] Constable Robert was also not able to say how many tracking arrests or how often evidence had been found between when shestarted in 2009 and by the first week of April 2011, as his statistics were not broken down by the date or by the month.

THE LAW [12] When considering expert evidence, the Court must determine that the expert opinion evidence is “necessary”, that it is relevant,reliable and outweighs the potential prejudice. As well, the expert must have some special knowledge and experience going beyond thatof the judge or the jury deciding the facts. Dog track evidence is one kind of expert evidence which is presented to the Court onoccasion. It is generally accepted in the Courts across Canada that once a proper foundation is set out, dog track evidence can beadmitted as circumstantial evidence.

However, whenever it is presented and accepted as evidence, there is always a question of whatweight should be attached to it. (See R. v. Sherman, (BC SC), 1997 CarswellBC 2689, 13 C.R. (5th) 173 (BCSC) atparagraph 27 and R. v. Klymchuk, 2000 CarswellOnt 5337, at paragraph 15.) [13] It is necessary for both the dog handler and the dog to be qualified when the dog handler is called upon to testify as an expertwitness. The case most often relied on and quoted from in dog tracking cases is the 1962 B.C.C.A. decision of R. v.

Haas, (BC CA), 1962 CarswellBC, 39 W.W.W. 224, 38 C.R. 154, 132 C.C.C. 362, 35 D.L.R. (2d) 172. As set out by Davey, J.A. in thatcase: The evidence tendered should not be admitted unless the crown first establishes the qualifications of the dog and its trainer. Itis the dog's propensities and skills that make the evidence of what the dog did admissible, just as it is a witness's qualifications andtraining that establishes him as an expert and makes his opinion admissible. The qualifications of the dog, like those of anexpert, must be proved. (Paragraph 14) [14] In the Sherman case, Romilly, J. expanded on this.

He stated that, "The dog master should be qualified as an expert in how thepolice dog responds to human scent and how the police dog communicates his findings i.e. the prosecutor should establish the basis forinterpretation of the dog's reactions.

" He then listed a number of areas and questions that the dog master should answer in order toestablish this: 1. the training; 2. the length of service in the dog section; 3. the experience; 4. the number of times the dog master has testified in court and the level of court at which he or she testified; 5. which kind of training was used in training the dog? 6. what has been the ongoing training of the dog? 7. the number of investigations;

8. the record of accuracy; and 9. the breed of dog. [ 15 ] Other Courts have asked for more particular details in some of these areas, but this list covers all of the key points. (See for example R. v. Matheson , 2012 CarswellAlta 779, 2012 ABPC 68 , 1ow W.C.B. (2d) 159, [2012] A.W.L.D. 4435, 70 Alta. L. R. (5th) 60 at paragraph 149 and Klymchuk at paragraph 3, where the book entitled Expert Evidence, by Freckelton & Selby, is quoted.) THE EVIDENCE CONCERNING REYA [ 16 ] Constable Robert testified as to the training Reya had prior to going into police service.

Further details of this are also found within his Curriculum Vitae. While he was never asked how this compared to the training of any other police dog, either with the Winnipeg Police Service, or elsewhere, the training was clearly extensive and met all of the criteria for the Winnipeg Police Service. [ 17 ] Reya has been a working dog for the Winnipeg Police Service for approximately five years. On the dates of the alleged offences before the Court, she would have been in service for approximately two years.

Constable Robert testified that he has done all of Reya's training; he has been her only handler. [ 18 ] It would appear from the number of tracking arrests and times that evidence has been located that Reya has been working continually, except for a period of time in 2010, when she gave birth to a litter of eight pups.

Given that Constable Robert's estimate that he and Reya had now done between 300 and 500 tracks, it clear that Reya is now an experienced tracker. [ 19 ] Constable Robert was not asked about his history of testifying in Court as an expert dog handler and as an expert in explaining how Reya communicates with him and his

interpretation of that communication. Nor does his Curriculum Vitae set out his previous experience as an expert witness in this field. [ 20 ] Constable Robert was not asked to explain the type of training used with respect to Reya, other than to explain the steps she had to go through to be validated.

However, as both Counsel had agreed, and as his Curriculum Vitae clearly sets out, Constable Robert has a lot of experience in the raising and training of dogs; it is accepted that he appropriately trained Reya. [ 21 ] Constable Robert has outlined in his Curriculum Vitae and testified to the ongoing training Reya has had. As a requirement of continuing to be a working dog with the Winnipeg Police Service, Reya must be validated every year.

Remedial steps would have to be taken if there was any issue along the way, but with Reya that has not been necessary, as she has successfully validated each and every year since 2009. Constable Robert testified that he trusts Reya; he believes that she can successfully track. [ 22 ] Constable Robert has not kept a record of how many investigations he and Reya have been involved in.

However, based on his evidence about the number of times they have tracked (in the hundreds) the number of arrests as a result of those tracks, and the number of times evidence has been located, they have clearly been involved in many investigations. [ 23 ] Constable Robert could not testify as to any record of accuracy with respect to Reya and the tracks they have followed. There appears to have been no follow-up with respect to what has happened with any of the arrestee's police investigations or subsequent charges, or how any evidence located has assisted in any police investigations or subsequent charges.

Constable Robert's trust in the accuracy of Reya's tracking success appears to be based on how she has performed in training and in subsequently validating, as no details about the results of the tracking arrests and evidence located were given. [ 24 ] Reya is a Belgian Malinois. Constable Robert explained that this is the choice of breed for Winnipeg Police Service dogs, as they are high drive, high energy dogs, less prone to some health issues than German Shepherds, and a smaller dog than a German Shepherd, making it easier to lift them over fences and so forth.

Constable Robert also pointed out that out of the litter of eight pups that Reya had in 2010, five of them are now police service dogs. Constable Robert was not asked to explain what distinguishes a Belgian Malinois as an excellent tracking dog. ANALYSIS [ 25 ] The evidence given at the voir dire is lacking with respect to three areas or questions:

1. Constable Robert's history of testifying as an expert in Court proceedings. 2. Evidence about Reya's record of accuracy. 3. Information about this breed, a Belgian Malinois, and their ability to perform as tracking dogs. [ 26 ] Constable Robert should have been asked about his past appearances in Court as an expert: what courts he has appeared in, what the areas of expertise were that he was qualified in, and if he was ever not qualified as an expert. This is a

section that does need to be added to his Curriculum Vitae. While the Sherman case listed this as a question that should be put to the dog handler, little mention is made, in the reported cases, of how often a dog handler has testified as an expert in any other reported case. While the lack of this evidence is not fatal to qualifying Constable Robert as an expert in how Reya communicates with him and his

interpretation of it, this will be relevant in determining what weight to place on his opinion evidence. [ 27 ] Evidence about Reya's accuracy should have been provided to the Court as well. It may not be possible to account for what other factors are at play in an arrestee being charged with an offence or offences after being tracked by a dog, and while an ultimate guilty plea, conviction or acquittal may not be directly as a result of the dog's tracking, there must be some information or statistics that can be tracked about the outcomes of these arrests.

Again, in reviewing the other reported dog tracking cases, the Courts appear to have had little information given to them about their particular dog's record of tracking accuracy. [ 28 ] As Davey, J.A. commented about the dog in his appeal in Haas , "As soon as it is judicially noticed that some dogs do have the ability to track, the admission that this dog was as good at that as it could be sufficiently establishes the dog's qualifications for the purposes of the argument on admissibility of the evidence." (Paragraph 16) He then goes on to talk about the importance of instructing the jury on the value and weight of such evidence. [ 29 ] Of note, with respect to Reya, is that whenever she has been validated, she has successfully completed an unknown track that has been set out for her.

These tracks are subject to verification and Reya apparently has an unblemished record for being accurate in that testing. As defence counsel has agreed to Constable Robert’s expertise as a dog trainer and handler and that Reya has the ability to track human scent, it follows that Reya’s record of known accuracy when being tested can be relied on. Therefore, the lack of evidence on Reya's record of accuracy in tracking on while on the job is not fatal to Constable Robert testifying as an expert in how Reya communicates with him and his

interpretation of it, but the weight to be placed on this opinion evidence may be affected as a result. [ 30 ] Constable Robert testified about Reya's breed, a Belgian Malinois, but did not specifically comment on why this particular breed is used to track human scent. Clearly he and the Winnipeg Police Service believe that this is the right breed for the task. While Davey, J.

A. in the Haas case was troubled by the Crowns' failure to lead any evidence with respect to the propensities of the breed in his case, a German Shepherd, and their skill in tracking, and believed it to be improper to take judicial notice of it, he did allow for taking judicial notice of the fact that some dogs do have the ability to track people. (see paragraphs 14 - 15) [ 31 ] Of note is the fact that in the Haas decision, O'Halloran, J.A. (with the concurrence of Bird, J.A. and Tysoe, J.A.) appeared to be satisfied with the fact that the RCMP trainer and handler in their case was an experienced dog handler and that the dog in question was a German Shepherd, and that they were "both as good as they could be".

Constable Robert has testified to Reya's ability to track and while it would have been helpful to have more detail about Belgian Malinois' abilities in tracking human scent as a breed, defence counsel did not contest the fact that Reya had the ability to track human scent.

CONCLUSION [ 32 ] In assessing all of Constable Robert's testimony at the voir dire and in reviewing his Curriculum Vitae, this Court is satisfied that Constable Robert can be qualified as an expert in the areas requested by the Crown, however, the weight to be attached to his opinion evidence will be assessed in light of the concerns the Court has just noted. [ 33 ] Therefore, Constable Robert will be allowed to testify as an expert in 1. Dog handling and training; 2. Reya's ability to track human scent; 3. How Reya communicates with Constable Robert when she is tracking; and 4. Constable Robert's

interpretation of Reya's communication with him when she is tracking. “ORIGINAL SIGNED BY:” Robert Heinrichs, P.J.