Her Majesty the Queen - v. -, 2017 SKPC 66

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 066 Date: April 05, 2017 Information: 35709700 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Daniel Thomas Kossick Appearing: S. Cameron For the Crown D. Piché For the Accused DECISION ON QUALIFICATION VOIR DIRE D.C. SCOTT , J [ 1 ] On August 31, 2016, the accused Daniel Kossick was charged with possession of methamphetamine for the purpose of trafficking and possession of proceeds of crime under $5000.00.

At the time of arrest, the police seized 3.82 grams of methamphetamine, two cell phones, one that worked and one that did not, and $90.00 in cash. The arresting officer viewed some of the messages on the functioning cell phone and later transcribed them. At a later date, the same cell phone was searched pursuant to a search warrant and subsequently analyzed. [ 2 ] The trial of this matter commenced January 23, 2017. As part of its case, the Crown called Cpl. Dalton Marciniuk to provide expert opinion evidence in the following areas:

1. The methods of packaging, distribution, and pricing of methamphetamine; 2. The general patterns of usage and effects and the observable signs of usage of methamphetamine; and 3. The language, jargon, paraphernalia, offence-related property and proceeds of crime connected to the possession, use, trafficking and distribution of methamphetamine. [ 3 ] During a qualifications voir dire , the Crown tendered two expert reports prepared by Cpl. Marciniuk. Exhibit P-2 on the voir dire is a report of the officer’s opinion with respect to certain aspects of use and trafficking of methamphetamine, the associated use of cell phones, and his

interpretation of certain cell phone messages. Exhibit P-3 on the voir dire is a report which sets out the text of certain electronic messages, along with the officer’s

interpretation of those conversations. The defence objects to Cpl. Marciniuk providing expert evidence in the area of “the general patterns of usage and purchase of methamphetamine”, the presence or absence of paraphernalia, and seized money. Further, defence counsel objects to the officer providing his own

interpretation of certain cell phone communications. [ 4 ] In particular, the defence takes issue with portions of Exhibit P-2, being paragraphs 5 (general patterns of methamphetamine consumption), 12 (opinion specific to cell phones), 14 (opinion regarding devices for methamphetamine use), 15 (opinion regarding the purpose for which the accused was in possession of methamphetamine), 16 (opinion regarding the absence of certain paraphernalia), 17 (opinion regarding seized money) and the report’s conclusion. With respect to Exhibit P-3, the defence takes issue with Cpl. Marciniuk’s

interpretation of the meaning of each of the Facebook and SMS messages. [ 5 ] I have been asked by defence counsel to rule on the admissibility of the contested proposed evidence. It is important to be reminded that, to this point in the trial, Cpl. Marciniuk has testified only with respect to his qualifications. He has not yet been asked for his opinion and has not been cross-examined with respect to that opinion. The Crown submits that the reports are only summaries of the evidence to be tendered and his proposed testimony will expand on, clarify and explain the basis for the opinions outlined in the reports.

Qualifications of Corporal Marciniuk [ 6 ] An expert qualification voir dire was entered into during which Cpl. Marciniuk testified as to his education and professional experience. His curriculum vitae [CV] was filed which detailed his training and experience. [ 7 ] Cpl. Marciniuk earned a human justice degree from the University of Regina, a criminal justice diploma with honours from the Lethbridge Community College and an arts and sciences degree from the University of Saskatchewan. [ 8 ] Cpl. Marciniuk has been a member of the RCMP for 17 years.

Since September 2014, he has been posted to the Saskatoon Police Service, Integrated Crime North Section, and is currently a member of the Saskatoon Integrated Drug Enforcement Street Team [SIDEST]. His duties include participating in Controlled Drugs and Substances Act [ CDSA ] investigations into street level and mid-level drug traffickers. His daily duties include meeting with confidential human sources, surveillance, and preparing judicial authorizations and executing search warrants.

He has also taken on the role of lead investigator, affiant, exhibit officer and file manager. [ 9 ] As a member of the RCMP, he served in a number of Saskatchewan detachments in La Ronge, Melfort, Ile a la Crosse and Meadow Lake. While in La Ronge, between 2008 and 2014, he focused on serious and habitual offenders with drug addictions and gang affiliations. He gained experience in identifying major drug dealers in Northern Saskatchewan, and their methods of conducting illicit activities related to street gangs.

He also served as supervisor/investigator during that assignment. [ 10 ] The corporal has extensive drug enforcement training, regarding the effects of drug use and addictions; trends in importation,

production and distribution and dangers of fentanyl and carfentanyl in British Columbia; preparing expert opinion reports and conductingthorough possession for purpose investigations; production of methamphetamine; surveillance techniques; investigating organized crimegroups associated with trafficking large quantities of illicit drugs; obtaining judicial authorizations; identifying street drugs based uponappearance, street names, drug use paraphernalia and street jargon; identifying grow operations; working with confidential informants;concealment, packaging and pricing of drugs. [11] Cpl.

Marciniuk has given presentations to probation staff, educators, medical students, nurses and young people regardingstreet drugs including methamphetamine. [12] His drug investigation experience has involved varying amounts of methamphetamine. He has executed CDSA searchwarrants; he has interacted with undercover operators and observed their purchase of controlled substances. As a member of SIDEST heconducts investigations on street level drug trafficking involving differing drug amounts and cash.

He has observed drug traffickers dealcontrolled substances and has seen some of the methods used to package and distribute controlled substances. He has observed dial-a-dope transactions and has investigated such operations. He has observed drugs, packaging and items used in trafficking, production,presses and concealment. He has conducted lengthy surveillance of drug trafficking, observing techniques used to sell drugs tocustomers.

He has been responsible for seizure of evidence, including drugs, money and other articles relevant to an investigation. [13] The corporal is a regular contact for confidential human sources, and has knowledge of current drug trends, packaging, streetpricing, usage concealment, storage, trafficking methods, phone lingo, codes and street terminology, and ways of administering illicitdrugs. 4 [14] Cpl. Marciniuk’s CV also details a number of notable investigations in which he has been involved. For example, as amember of Project Forseti, he monitored wire transmissions, including phone calls and text messages.

He participated in a number ofinvestigations related to various levels of methamphetamine trafficking, which allowed him to observe trafficking patterns and methodsof concealment, associated paraphernalia and currency, and dial-a-dope operations. [15] Although Cpl. Marciniuk has not testified as an expert witness in the past, his experience in illicit drug investigation andenforcement, including that involving methamphetamine, is lengthy, extensive and wide-ranging.

Law regarding admissibility of expert evidence [16] According to R v Mohan, (SCC), [1994] 2 SCR 9 [Mohan], a qualified expert means having “acquired specialor peculiar knowledge through study or experience”. That case established four criteria for determining the admissibility of expertevidence: (1) relevance; (2) necessity in assisting the court; (3) absence of an exclusionary rule; and (4) a properly qualified witness.

Evidence that does not meet these threshold requirements should be excluded: White Burgess et al v Abbott and Haliburton Co., 2015SCC 23 [White Burgess] para 23. [17] The Court in R v Abbey, 2009 ONCA 624 [Abbey] further developed the analytical framework by suggesting a two-stageprocess for assessing admissibility of an expert’s opinion. First, the Court must consider the four Mohan criteria as stated above. Second, the Court must perform a gatekeeping function, balancing the benefits and risks of admitting such evidence.

In essence, “thetrial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial processto warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: Abbeypara 76. [18] However, the admissibility inquiry is not to be conducted in a vacuum. Before applying the two stage process to decideadmissibility, the Court must first determine the nature and scope of the proposed expert opinion.

The boundaries of the proposedopinion must be carefully defined so as to minimize any potential harm to the trial process. A “cautious delineation of the scope of theproposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential”: Abbey para 62. See also Rv Sekhon 2014 SCC 15 [Sekhon] para 46; R v Bingley, 2017 SCC 12 [Bingley] para 17. [19] The approach in Abbey has been endorsed in a number of cases including Sekhon, White Burgess and Bingley.

[ 20 ] As mentioned, I have not yet heard the testimony of Cpl. Marciniuk. Before making a determination regarding the admissibility of his proposed evidence, I must first define the nature and scope of Cpl. Marciniuk’s opinion evidence which is the purpose of this decision. Once I have heard the officer’s testimony, within the defined boundaries, I will make a determination with respect to admissibility and weight to be given such evidence. [ 21 ] The following is the proposed evidence contested by the defence.

General patterns or usage and purchase of methamphetamine [ 22 ] The contested evidence related to general patterns of use and purchase of methamphetamine is contained in the Opinion Report dated January 5, 2017 (P-2). It refers to conduct “normally” undertaken by “average” and “regular” methamphetamine users, as well as “heavy and binge users”. Further, report P-2 offers a conclusory opinion with respect to the purpose for which the accused was in possession of the methamphetamine. [ 23 ] Defence counsel does not challenge Cpl. Marciniuk’s qualifications, generally.

Neither is the defence concerned that the basis for Cpl. Marciniuk’s opinion is acquired anecdotally. Rather, the defence argues that Cpl. Marciniuk’s opinions with regard to general patterns of use and purchase of methamphetamine usurp the function of the trier of fact and draw inferences with regard to the ultimate issues, which the Court is able to draw on its own. Further, defence asserts the opinions, in the circumstances of this case, lack probative value and are highly prejudicial. [ 24 ] The defence relies on the decision of R v Mulaj , 2014 ONSC 4405 [ Mulaj ], a trial by judge alone.

In that decision the trial judge did not permit the expert to provide evidence regarding consumption patterns. Neither did the Court allow the expert to provide an opinion about the absence of tools for consumption as an indicator that the accused’s possession of 4.3 grams of cocaine was for trafficking. [ 25 ] Although the expert in that case was permitted to provide an opinion on the ultimate issue, it was not admitted as it was based on “borderline indicia” with a high potential for prejudice: Mulaj para 48 .

Further, such evidence was unnecessary, in that the Court required no expert guidance from which it could draw its own conclusions on the totality of the evidence: para 51. Such evidence lacked probative value and its admission would assist in relieving the Crown of its burden of proof: para 51. [ 26 ] The Court in Mulaj concluded that evidence of consumption patterns and the absence of consumption tools was not sufficiently beneficial, legally relevant or necessary.

Further, if it were received, it might shift the burden upon the accused to tender evidence, expert or otherwise, to prove his innocence: para 53. [ 27 ] The Crown in the present case argues that the general value of methamphetamine in Saskatoon and the common methods and amounts of use by other users provides important context to the amount of that drug seized from the accused.

The evidence does not purport to determine as a fact the accused’s personal usage at the time of arrest. [ 28 ] The Crown relies on the case of R v Dominic , 2016 ABCA 114 [ Dominic ], wherein the Alberta Court of Appeal decided that expert evidence regarding drug usage (i.e. how much a user will purchase and consume at a given time) was properly admissible.

The evidence was challenged by the accused on the basis that it was not legally relevant and the officer did not possess expertise in these matters. [ 29 ] In Dominic , the opinion evidence of general use was criticized by defence because it was derived from “anecdotal” reports of drug users. As mentioned, that is not the concern in the present case. The defence in Dominic also contended that the impugned evidence of “binge use” was not legally relevant, because it was not probative but highly prejudicial. The appeal court disagreed.

The Court interpreted the expert’s evidence as referring to “‘most users’, not all users, thereby minimizing the risk of misuse of his testimony”: para 35. The term “practices and habits of cocaine users” was considered by the appeal court to be vague and ought to have been more precisely defined. Nonetheless, the expert testified within the scope for which he was qualified: para 41.

[ 30 ] In the case before this Court, I am not satisfied that evidence regarding patterns of the “average/regular user” or “binge/heavy user” is necessary or probative. Neither is evidence of consumption patterns of other users sufficiently beneficial as an indicator from which this Court should infer that the accused intended to traffic, rather than consume, the 3.8 grams of methamphetamine found on his person. Information about consumption patterns by average or heavy users of methamphetamine is not necessary to assist this Court in determining the accused’s purpose for possessing the drug.

Given the generalities associated with terms such as “average user”, “regular user” or “heavy user”, its reliability is questionable. The proposed evidence lacks evidentiary value in determining whether Mr Kossick intended to traffic. Absence of consumption tools or scales [ 31 ] Similarly, expert evidence with respect to the absence of consumption tools or scales as referenced in paragraphs 14 and 16 of Exhibit P-2 is not necessary.

The officer’s reference in paragraph 16 to sellers “sometimes” having a scale and his observation that he has seen “traffickers that only sell drugs and traffickers that use and sell drugs” is, once again, unnecessary and of no probative value. Opinion regarding the accused ’s intention for possessing the drugs [ 32 ] I will not permit Cpl. Marciniuk to provide his opinion in paragraph 15 of Exhibit P-2, regarding the purpose for which the accused possessed the methamphetamine. This amounts to the officer’s opinion with respect to the ultimate issue to be determined by this Court.

Similarly, the Court will not permit Cpl. Marciniuk to provide his conclusion, as set out in P-2, regarding the purpose for which the accused possessed 3.8 grams of methamphetamine, the cell phones and cash. Once again, his opinion goes to the ultimate issue, which is for this Court to determine. Opinion regarding cash found on the accused [ 33 ] The defence objects to paragraph 17 in Cpl. Marciniuk’s report P-2. I note, however, that the corporal states he can offer no opinion with respect to the amount of money found on the accused.

Interpretation of Facebook messages and SMS messages found on cell phone [ 34 ] This contested evidence relates to Cpl. Marciniuk’s

interpretation of messages derived from a seized cell phone, referenced in Exhibits P-2 and P-3. [ 35 ] The Crown seeks to have Cpl.

Marciniuk provide an opinion regarding the “language, jargon, paraphernalia, offence-related property and proceeds of crime connected to the possession, use, trafficking and distribution of methamphetamine.” However, the officer’s report goes further by including his opinion with respect to the meaning of entire conversations. [ 36 ] The defence argues that the officer’s expert opinion is simply drawing an inference from the messages found on the functioning cell phone, thereby usurping the function of the trier of fact.

The defence relies on R v Farah and Khattak, 2016 ONSC 2874 , para 11 [ Farah and Khattak ], a jury trial, wherein the trial judge states: [11] ...such expert evidence is admissible to prove the meaning of particular words or phrases used by the participants of such illicit conversations, but that expert witnesses may not provide their own contextual

interpretations of the entire conversations. The rationale for this general rule appears to be that the trier of fact must have the assistance of an expert witness as to the meaning of terms and phrases commonly used in the illegal drug trade, just like a trier of fact may need assistance of an interpreter to understand words spoke in another language. At the same time, to permit an expert to interpret and explain the meaning of an entire conversation in context is unnecessary once the coded language is explained by the expert, and would risk overwhelming the trier of fact on what is likely the ultimate issue in the case. [emphasis added]

[ 37 ] The defence also relies on the statement in Drug Offences in Canada (2015) by B.A. MacFarlane, R.J. Frater and C. Michaelson, that the governing rule with respect to this kind of expert opinion evidence is as follows: As long as the witness is properly qualified, and the evidence meets the threshold of reliability, the witness may express an opinion on the meaning of specific words or phrases, but may not be asked to draw inferences from that evidence.

For instance, the witness may express the view that, in the local drug community, “straight white, rocked up” refers to cocaine, but [he or she] may not be permitted to express a view on what was going on between the parties at the time.

That falls exclusively to the trier of fact for assessment. [ 38 ] In R v Edison , 2015 NBQB 74 [ Edison ] the Court held that the expert witness was only entitled to give opinion evidence with respect to drug jargon as follows: [73] . . . 2) . . . “that persons engaged in drug dealings often speak to each other in coded or furtive language and give examples of how that technique is employed”; (3) . . . “on the common acronyms used by those engaged in the drug trade to describe illicit drugs. . . and other terms common to drug dealing”; and (4) . . . “hypothetical examples of how those dealing in drugs might construct coded conversations as well as the methods used to decode the messages provided that the hypothetical examples do not reflect the evidentiary matrix” of the accused’s case. [ 39 ] The Court in Edison concluded that the officer was not entitled to give opinion evidence specifically interpreting any purported coded or furtive language utilized in the case: para 73.

The defence in the present case argues that Cpl. Marciniuk’s expert opinion with respect to the meaning and import of the Facebook and SMS messages is contrary to these principles, in that it purports to specifically interpret the conversations found. [ 40 ] The Crown points out that in Farah and Khattak , the Court observed there might be circumstances where this type of expert evidence would be permitted to offer “more contextualized opinions about the meaning of commonly used drug jargon, or provide suggested

interpretations of coded intercepted conversations”: para 23. [ 41 ] It is my view that Cpl. Marciniuk’s evidence with respect to specific jargon, slang and commonly used terminology related to the illicit drug trade, found in the cell phone messages, is relevant and necessary to assist the Court in understanding the conversations in the cell phone messages. He will have familiarity with such language from his experience in surveillance and contacts with human sources. However, once his explanation of that language is provided, this court can draw inferences from the interpreted language. To permit Cpl. Marciniuk to offer his own

interpretation of entire conversations contained in the cell phone messages would allow him to usurp the function of this Court. [ 42 ] Cpl. Marciniuk will be permitted to testify with respect to his opinion as to the meaning of jargon, slang, language, terms and phrases commonly used in the illegal drug culture, including language commonly used in the purchase and sale of methamphetamine. He may also explain any contextual factors that may assist the Court in interpreting the terms and phrases in different contexts. [ 43 ] He will not be permitted, however, to provide his conclusory

interpretation of entire conversations contained in the Facebook and SMS messages from the accused’s cell phone. Rather, he will be limited to providing the Court with his understanding of the meaning of commonly used terms and phrases in the illicit methamphetamine drug culture along with contextual factors. [ 44 ] The following proposed evidence was not contested by the defence: Methods of packaging, distribution and pricing of methamphetamine

[ 45 ] No objection was raised by defence with respect to this type of proposed evidence. Such evidence is relevant and is necessary in that it is outside the knowledge and experience of the Court: R v Choli 2016 SKCA 64 . The officer’s education and professional experience in drug investigation and enforcement qualifies him to offer his opinion with regard to the various methods of packaging, distribution and pricing of methamphetamine. His expert opinion is probative and will assist the Court in reaching its conclusion. There is little or no risk in allowing the officer to testify in this regard.

Effects and observable signs of methamphetamine use [ 46 ] No objection was made by defence with respect to the officer’s expertise regarding the effects and observable signs of methamphetamine use, set out in paragraph 6 of his report P-2. It is not clear from Cpl. Marciniuk’s education and experience that he is qualified to provide evidence with respect to the physiological effects of methamphetamine on a user, generally, and more particularly, how those effects differ depending upon the manner in which the drug is used, the purity of the drug and tolerance of the user.

This evidence would require a pharmacological or medical background, which the officer does not appear to possess. However, given his education and experience as a police officer, he is qualified to testify with respect to observable signs of methamphetamine use. Conclusion regarding the nature and scope of Cpl. Marciniuk ’s expert testimony [ 47 ] I find that Cpl. Marciniuk is an expert in the street level distribution and sale of methamphetamine and will be permitted to testify as an expert witness and provide his opinion with respect to the following areas. 1.

Methods of packaging, distribution and pricing of methamphetamine; 2. Observable signs of usage of methamphetamine; 3. Language, jargon, slang and terminology commonly used by sellers and buyers of methamphetamine, limited to his understanding of the meaning of those terms and phrases in the methamphetamine drug culture, along with any contextual factors that may assist the Court; 4.

Paraphernalia, offence-related property and proceeds of crime connected to the possession, use, trafficking and distribution of methamphetamine, except with respect to his opinion regarding the absence of consumption tools, as referenced in paragraph 14 of Exhibit P-2 and his opinion regarding the absence of scales, as referenced in paragraph 16 of P-2; [ 48 ] Cpl. Marciniuk will not be qualified or permitted to offer his opinion with regard to the following: 1. General patterns of use and consumption of methamphetamine as referenced in paragraphs 5(

b) through (

e) of Exhibit P-2; 2. His conclusion whether the accused was in possession of the methamphetamine for the purpose of trafficking it, as referenced in paragraph 15 of Exhibit P-2; 3. His

interpretation of entire conversations derived from cell phone messages, as set out in the “opinion specific to this case” column in paragraph 12 of Exhibit P-2 and throughout Exhibit P-3; 4. His

interpretation of conversations derived from cell phone messages as referenced in paragraph 16(1) of Exhibit P-2. [ 49 ] The Court thanks counsel for their briefs of law which were of great assistance.

_________________________ D.C. Scott, J