R. v. Mongovius, 2018 BCPC 91

Citation: R. v. Mongovius 2018 BCPC 91 Date: 20180221 File No: 217654-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. DUSTIN TERRANCE MONGOVIUS ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: G. Kipp Counsel for the Accused: P. Del Rossi, C. Muldoon Place of Hearing: Surrey , B.C. Date of Hearing: February 21, 2018 Date of Ruling: February 21, 2018 [ 1 ] These are the reasons on the application before the court on the second voir dire that we have had in the trial of R. v.

Mongovius in Surrey, Court File Number 217654-2C. [ 2 ] This is a Crown application and the Crown seeks to have Cpl. Moon qualified as an expert witness and specifically the Crown is seeking to qualify Cpl. Moon as an expert in the possession of cannabis marihuana for the purpose of trafficking, trafficking, consumption, packaging, distribution, pricing practices, terminology/street language and the trends with respect to dial-a-dope operations including the roles of participants in dial-a-dope operations with regard to cannabis (marihuana).

[ 3 ] Defence argues that Cpl. Moon should not be qualified as an expert in these areas being sought. They argue he lacks expertise in the specific area of cannabis and also there is a secondary concept of what I am calling "the appearance of bias" that needs to be considered when considering his positioning within the RCMP organization. THE LAW [ 4 ]

Section 657 is the guiding

section when I consider the qualifications of any expert witness. Simply speaking, just because a person has some or a lot of experience in one particular area or field, that does not, in itself, qualify a person to provide expert testimony in a criminal trial. In this case, we have completed a voir dire and the sole issue that I must consider is whether the individual is qualified as an expert and, if so, what the nature and scope of the proposed expert evidence will be.

I am forbidden to permit an expert to give an opinion on common matters or matters that the expert has no special skills, knowledge or training. I also must consider whether the opinion is relevant and necessary. [ 5 ] Is the proposed evidence relevant? I am not certain as to the exact areas that apply in the case at bar. The case deals with marihuana, the possession of it, the purpose of its possession and other related concepts perhaps such as packaging and, I suppose, potential pricing.

If this expert is able to provide me information or evidence in relation to these issues, it may be helpful in determining the issues in the trial. [ 6 ] Is it necessary? By no means do I have any specialized knowledge of marihuana.

I find that the corporal's opinion may have scientific information that is likely to be outside of my experience or knowledge or just basic information; for example, how we got onto the topic of budder is unclear to me but it is an example of how this officer has specialized information that I could benefit from when we are using some of these terms. [ 7 ] The evidence must not usurp the duty that I have as a trier of fact. I am mindful of the duty of the trial judge. Specifically, I must not allow the opinion of the expert to solely guide my findings.

To put it in other words, just because an expert says that packaging is consistent with a purpose related to trafficking does not eradicate my responsibility when considering that opinion in the context of all the other evidence. It is my view that I may accept some, all or none of the expert evidence on any particular point, and if I accept some, I should ask myself why and if I do not accept some portions of the evidence, I should also consider why I am not accepting this information. CPL.

MOON'S QUALIFICATIONS [ 8 ] He is not simply an RCMP officer giving the court his opinion based solely on his experiences as a police officer. His experiences and training are detailed in his Curriculum Vitae and further supplemented by his oral testimony. I will not repeat the 23 pages of credentials that he relies on. I will, however, acknowledge the defence argument with respect to his qualifications. THE DEFENCE ARGUMENT [ 9 ] The position was very ably made clear that the defence does not wish Cpl. Moon to be qualified as an expert in this trial for the following reasons.

I might even presume that the argument implies the cumulative effect of these arguments that are being made calls into question whether he should be qualified as an expert. [ 10 ] First, it is not argued that Cpl. Moon is not an expert when it comes to certain aspects of drug offences. For example, he has been previously qualified as an expert by myself in the case of R. v. Babba , which was a decision from February 2017. So at least in that case, he was qualified to be an expert.

In that case, he provided the court with evidence regarding the possession of certain substances, specifically cocaine, heroin and Fentanyl. It is submitted that Cpl. Moon might have much experience but most of his experience is relevant to investigations dealing with "hard drugs" whereas, in this case, we are dealing with marihuana. [ 11 ] At first glance, his resumé heavily favours his expertise in certain substances. I would think knowing how a dial-a-dope operation works for hard drugs might be quite useful in understanding how a dial-a-dope operation works in marihuana operations.

While perhaps contrary to the view of the defence, I accept Cpl. Moon's position that there are similarities. [ 12 ] Defence also submits that Cpl. Moon does not have much of an understanding of how things such as budder or shatter are created. Cpl. Moon indicated to the court that he had had a much better understanding of these topics than I. However, I accept that he did not appear to have a detailed understanding as to the exact equations as to how different marihuana derivatives or extracts are created. [ 13 ] My comments are two-fold. First, does this case somehow involve shatter or budder on its production?

If so, I note that he is not being offered as an expert in the production of marihuana or extracts, although it is possible that these topics might overlap a bit with consumption or packaging. Secondly, rather than just guess as to what the case is about, I simply note that I need to find, if he is an expert being sought by the Crown, certainly if I rule that he is an expert in the specific areas sought, his opinion as to how shatter is created might have little weight, if any. [ 14 ] I find that he does have significant experience that could assist me, as the trier of fact.

He has been in the Drug Unit for eight of 10 years. He started off in the Marihuana Enforcement Unit. If I understand his evidence, it appears to be true that this unit dealt largely with grow operations which would be slightly different than assessing individual packaging. However, he then transitions in his experience and knowledge of being an RCMP officer with basic training and drugs, as received through their initial training, to a more experienced officer with more job experience in the area of marihuana. He has also been recently promoted to corporal in a supervisory capacity in the Drug Enforcement Unit.

As I understand it, this unit specializes in the trafficking and production of substances. While somewhat focused on harder drugs, often it also deals with offences relating to marihuana use, possession or trafficking. [ 15 ] His resumé details his courses and formal training. However, I take note of his on-the-job training or experience as being involved with a unit that specializes in drug enforcement. He was involved in dozens, if not hundreds, of operations and investigations to do with one substance or the other; sometimes, that substance was marihuana.

[ 16 ] He is able to assist me as to the packaging and costs of marihuana. His knowledge of the drug trade in general is fairly specific to Surrey but some of his formal training extends to courses such as the pipeline course that, as I understand it, has to do with the transportation of substances of any type, including marihuana, through the highway systems. INDEPENDENCE [ 17 ] Counsel for the accused raises an interesting argument. They argue that experts providing evidence must be providing reliable evidence. That was not exactly the phraseology that was being submitted but that is how I took the submission.

Above are the reasons as to why the defence, I think, questions the reliability of any opinion that might be proffered by this particular witness. Further, it is submitted that in order for evidence to be reliable, it must also be credible. To put it in simple terms, a court needs to consider whether the expert is truly independent; that is, are they sufficiently distant enough from the subject upon which they provide an opinion so as to be able to provide an objective opinion. [ 18 ] In this case, there were three other officers that were involved in the investigation. They all work for the Surrey RCMP. Cpl.

Moon is an officer with the Surrey RCMP. There were some questions designed to elicit whether Cpl. Moon might be too close to the individuals and thus the opinion he might render may take into account improper factors such as friendships, for example. I think it is always proper for counsel to elicit information as to the relationship between the proposed expert and the other individuals that are closely linked to the case.

I would think in some instances the relationship between the expert and investigating officer might be so close that it might be in the larger interests of justice to find another expert whose relationship with the subject matter, investigating agency or other officers more distant.

On this point, while I appreciate the Crown's submission that it would be impractical to bring in officers from other jurisdictions just because these officers work together, I also agree with the larger principle found in Klassen at paragraph 31 where in the court says that: Ideally, the expert should not be an employee of the investigating police service. At minimum, if he -- I would add she: -- works for the same department, he [or she] should work independently from the investigating officers. I think the key reason for this is fairly simple.

The reliance on the opinion of a witness, perhaps especially an expert witness, who carries with him or her the appearance of bias, should be avoided. [ 19 ] Once more, to echo counsel's submissions when we use the word bias, the suggestion is not that this corporal is biased but that, at least from the defence perspective, he might be too close to the officers involved to render an objectively reliable opinion. On this point, I respectfully disagree. There does not appear to be any type of friendship or relationship that exists between the corporal and the other officers. They work for the same agency.

They may have worked together on any number of cases but, by most of the evidence, it is not a close working relationship other than being involved in certain cases together. [ 20 ] In the circumstances, after having considered the submissions of Cpl. Moon and the submissions of counsel and I say this one point, that I am not certain whether I will need to rely on the evidence of Cpl.

Moon as an expert, but I do qualify him as an expert in the possession of cannabis marihuana for the purpose of trafficking, trafficking, consumption, packaging, distribution, pricing practices, terminology/street language and the trends with respect to dial-a-dope operations, including the roles of participants in dial-a-dope operations with regard to cannabis. [ 21 ] I invite counsel to provide me submissions at the end of the proceedings as to what weight, if any, should be accorded to the opinions provided by Cpl. Moon. (RULING ON VOIR DIRE CONCLUDED)