R. v. Piechotta Date:, 2016 BCPC 463

Citation: R. v. Piechotta Date: 20160927 2016 BCPC 463 File No: 36208 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JENNIFER ANN PIECHOTTA RULING AND REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY ON PRELIMINARY INQUIRY VOIR DIRE #1 Re: Qualification of Fraser Scott Rintoul As an Expert and the Admissibility of the Expert Evidence of Scott Fraser Rintoul Counsel for the Crown: I. McFadgen

Counsel for the Defendant: D. Marion and S. Runyon Place of Hearing: Campbell River , B.C. Dates of Hearing: September 23, 2015, April 19 and 20, 2016, May 17 and 27, June 9 and September 2, 2016 Date of Judgment: September 27, 2016 NATURE OF THE APPLICATION [ 1 ] The Crown seeks to tender RCMP Sgt. F.

Scott Rintoul as an expert witness at a preliminary inquiry to give evidence with respect to the following areas: the methods of packaging and concealment, trafficking, prices, usage, drug jargon and slang of certain drugs, in particular, cocaine, heroin and fentanyl (the “Proposed Areas of Expertise”). [ 2 ] The accused, Jennifer Ann Piechotta (the “Accused”), contends that Sgt. Rintoul does not qualify as an expert in the Proposed Areas of Expertise and that his opinion evidence ought not to be received. [ 3 ] On May 17, 2016, in the course of the preliminary inquiry, I ruled that Sgt.

Rintoul was as an expert in the Proposed Areas of Expertise and that my reasons would follow. [ 4 ] The following are those reasons for accepting Sgt. Rintoul’s qualifications as an expert in the Proposed Areas of Expertise and to permit him to give opinion evidence within the Proposed Areas of Expertise.

BACKGROUND [ 5 ] The Accused and Matthew Christian Ladret are charged on a two count indictment which, prior to amendment, indicates that on or about November 27, 2014, at or near Campbell River, B.C., that they did unlawfully possess a controlled substance, namely, heroin for the purpose of trafficking and, further, that they did unlawfully possess a controlled substance, namely, cocaine for the purposes of trafficking. [ 6 ] Both charges are laid as offenses contrary to section 5(2) of the Controlled Drugs and Substances Act (“ CDSA ”). [ 7 ] At the commencement of the preliminary inquiry on September 23, 2015, Crown applied, successfully, to amend one of the drugs described in the indictment and to replace the reference to the drug heroin with the drug fentanyl. [ 8 ] The charges arose out of the execution of a search warrant at a Quinsam Road residence in Campbell River, B.C. which, it is alleged, was the residence of Mr.

Ladret and at which, it is further alleged, the motor vehicle of the Accused was regularly parked in the driveway and over which residence she had control. [ 9 ] As a result of the execution of the search warrant, police seized a large quantity of cocaine and fentanyl along with a large quantity of cash and other items alleged to have been used in connection with a drug trafficking operation. [ 10 ] Neither the Accused nor Mr. Ladret were present at the Quinsam Road residence at the time of the execution of the search warrant.

However, they were arrested together shortly afterwards in the Accused’s motor vehicle after, allegedly, driving past the Quinsam Road residence while the execution of the search warrant was taking place. At the time of the arrest, the Accused was driving the vehicle and Mr. Ladret was in the passenger seat. [ 11 ] As a result of the search incidental to his arrest, Mr. Ladret was, allegedly, found to be in possession of cash in the amount of $1,830 in various denominations of $100, $50, $20, and $10 and $5 notes but mostly in $20 notes. A cellular phone was seized from the Accused.

As a result of search incidental to her arrest, the Accused was, allegedly, found to be in possession of $1,281.45 cash mostly in denominations of $50 and $20 notes and a cellular phone.

An amount of $1,119 was found in a ladies wallet located behind the driver’s seat occupied by the Accused, mostly in denominations of $20 notes. [ 12 ] As a result of a search of the Accused’s motor vehicle incidental to arrest, an amount of $1,100 cash, in denomination of $100 notes, was found in the centre console area beside the Accused, along with an Alcatel cell phone in the centre console of the front seat and some plastic sandwich baggies. No drugs were located within the Accused’s motor vehicle or upon the person of either the Accused or Mr.

Ladret. [ 13 ] From the outset of the preliminary inquiry, it was made clear by counsel for the Accused, Ms. Piechotta, that the committal of that Accused was contested. [ 14 ] This preliminary inquiry relates only to the Accused and not to Mr. Ladret who is not before me on the preliminary inquiry. [ 15 ] At the outset of the preliminary inquiry, Crown had indicated to the defence that it was their intention to call RCMP Constable Erin A. Stephenson (“Constable Stephenson”) as an expert in the Proposed Areas of Expertise.

I understand it that he was attached to Campbell River detachment of the RCMP as at the date of the commencement of the preliminary inquiry and also prior to that date. [ 16 ] Constable Stephenson had prepared a written report with respect to the two charges entitled as “Opinion Evidence of Constable Erin A. Stephenson” (the “Stephenson Opinion Report”) which had been properly delivered to defence counsel in advance of the commencement of the preliminary inquiry.

[ 17 ] Upon application by Crown, Constable Stephenson was permitted to sit in court to listen to and to observe the Crown’s witnesses on the first day of the preliminary inquiry. [ 18 ] According to the Stephenson Opinion Report, the author had prepared it and had reached certain opinions expressed in it, based upon his examination of the Report to Crown Counsel from the RCMP, the PRIME Exhibit Flowchart, photographs and the Certificates of Analyst. [ 19 ] The 13-page Stephenson Opinion Report contains information under a number of headings such as cocaine usage in the Campbell River area, cocaine packaging, methods of consumption, and rates of cocaine consumption, cocaine jargon, fentanyl usage, fentanyl jargon, fentanyl pricing trends, drug trafficking trends, and other conclusions. [ 20 ] Under the heading of “Conclusions” are listed eight separate opinions regarding the items which are the subject of the seizure including the amount of cocaine and fentanyl, the amount of Phenacetin, the two digital scales, the packaging materials, the cellular phones, the cash, the presence of weapons and the score sheets.

All information and concluding opinions relate to the question of whether the drugs seized were for the purposes of trafficking. [ 21 ] The

summary conclusion contained in the Stephenson Opinion Report at the bottom of page 13 states as follows: Based on my review of the investigative materials, exhibits, speaking with the investigator, my experience and for reasons I have articulated throughout this report. [sic] It is my opinion that the drugs seized from this investigation were for the purposes of trafficking at the “retail/distribution” level.

Please note, should further evidence or information surface at trial which I am unaware of at this time, my final opinion regarding this matter may change. [ 22 ] Various references are made in the Stephenson Opinion Report to the Campbell River area (specifically under portions relating to cocaine usage, cocaine packaging and drug trafficking trends) and the Vancouver Island Region under certain headings (specifically under cocaine jargon and fentanyl jargon). [ 23 ] At the continuation of the preliminary inquiry on April 19, 2016, Crown informed the court that Constable Stephenson was not available to testify at the preliminary inquiry but, rather, it was their intention to have Sgt.

Rintoul qualified as an expert with respect to the Proposed Areas of Expertise. Also, Crown stated that having read the Stephenson Opinion Report, Sgt. Rintoul was prepared to adopt the opinions contained in that Report. [ 24 ] I understand that defence had only been made aware of the proposed substitution of the Crown’s expert witness a very short period of time preceding the continuation of the preliminary inquiry on April 19, 2016. Also, defence was only provided with a copy of Sgt. Rintoul’s Curriculum Vitae moments before the April 19, 2016, continuation. [ 25 ] Based on Sgt.

Rintoul’s evidence given in the voir dire , he had been contacted approximate 48 hours prior to the continuation of the preliminary inquiry on April 19, 2016. The message he received was that he was needed on an urgent basis to testify at this preliminary inquiry. He confirmed with the Crown’s office his availability on April 20, 2016, but he told them he was not available on April 19, 2016. [ 26 ] He was sent a copy of the Stephenson Opinion Report on April 18, 2016, for his review and consideration. After dinner on that date, having read the Stephenson Opinion Report, Sgt.

Rintoul was able to confirm to the Crown that he was in a position to adopt the opinions expressed in the Stephenson Opinion Report. [ 27 ] The preliminary inquiry continued on April 19 and 20, 2016, with the Crown’s case. A defence adjournment was granted on April 20, 2016, prior to Sgt. Rintoul’s testimony in order to permit the defence to prepare itself for his cross-examination. [ 28 ] Sgt. Rintoul was called on May 17, 2016, in order to testify as to his experience and expertise in support of the Crown’s seeking to have him qualified as an expert in the Proposed Areas of Expertise.

He was then subjected to cross-examination by the defence. QUALIFICATIONS OF SGT. F. SCOTT RINTOUL [ 29 ] Sgt. Rintoul has completed 35 years as a member of the RCMP; 24 years of that service has been in the drug enforcement field related to investigations under the Narcotic Control Act , the Food and Drugs Act and the Controlled Drugs and Substances Act . [ 30 ] Over the course of his career, he has gained extensive knowledge about approximately 19 different drugs and, specifically, about trafficking, possession for the purposes of trafficking and the street level use of those drugs.

Cocaine and fentanyl are included in those drugs as are marihuana, amphetamine and ketamine. For these latter two drugs, he also has knowledge about importation. [ 31 ] In addition, he has further expertise in marihuana production. His 18-page Curriculum Vitae, updated to February 1, 2016, was filed as Exhibit A in the voir dire . He adopted that document in his viva voce evidence presented in the voir dire . [ 32 ] The Stephenson Opinion Report contain opinions which Sgt. Rintoul has adopted, and it was filed as Exhibit B. [ 33 ] Since June 2008, Sgt.

Rintoul has been in charge of the Burnaby RCMP detachment drug

section which consists of 12 regular members. He is responsible for the supervision, coordination, budgeting and direction for undercover operations, including drug trafficking operations, “dial-a-dope” operations and drug production operations including the execution of search warrants and the handling of seized drugs. These range from gram, ounce to kilogram level operations. This has included 35 independent investigations targeting “dial-a-dope” operations ranging from one day to 8 months in duration. [ 34 ] He has also overseen and monitored 150 undercover operation scenarios in 27 independent investigations.

[ 35 ] Sgt.

Rintoul also has 3 ½ years previous experience as an RCMP officer in Richmond; another 3 ½ years previous experience with the Surrey, B.C. drug enforcement unit; and 11 years previous experience with the drug enforcement unit at RCMP headquarters in Vancouver. [ 36 ] He has not directly purchased illicit drugs in his role as a drug enforcement officer nor worked as an under-cover operative for the RCMP but he has served extensively in the role as a “cover person” and as the manager and supervisor of “cover teams” which provide support for undercover operatives, guiding the undercover operatives in their work and planning strategies for them.

This work entails the briefing and the debriefing of the undercover operatives. Overall, Sgt.

Rintoul has been involved in over 700 drug investigations. [ 37 ] From June 1998 until June 2008, he was the lead investigator in an investigation of chemical drugs used at rave parties, nightclubs, concerts and on the street. [ 38 ] His Curriculum Vitae, under the heading “Comprehensive Experience,” details no less than 32 types of investigations in which he has been involved locally, provincially, nationally and internationally since 1980 to present. [ 39 ] In his viva voce evidence, he rejects any suggestion that his role has evolved to simply that of an administrator or that he is essentially deskbound in his duties. [ 40 ] Since July of 1992, Sgt.

Rintoul has been gaining knowledge about the Proposed Areas of Expertise through his drug enforcement duties, including direct participation and supervision, and his discussions and interactions with field-recognized and court- qualified drug experts.

Further, it includes discussions and interactions with forensic drug toxicologists and drug enforcement experts in the areas of possession for the purposes of trafficking, undercover operatives, drug dealers, drug users, police informants, investigative officers, drug enforcement officers within the RCMP and within other Canadian and international police forces, and international drug enforcement agencies. [ 41 ] He has worked on national committees dealing with drug law enforcement and issues that deal with the Proposed Areas of Expertise. [ 42 ] In addition, since 1997, he has been responsible for teaching, lecturing and facilitating drug awareness professional development training workshops on behalf of the RCMP and making presentations to law enforcement and governmental organizations, community organizations and health professionals. [ 43 ] Since 2001, he has co-authored two editions of the publication entitled “Designer Drugs and Raves” and also co-authored the reference manual entitled “Chemical Drugs - a Reference Manual for First Responders.” [ 44 ] In addition to receiving his own extensive RCMP drug training, he has organized, participated in and presented to a large number and a wide variety of high level national and international courses, workshops and conferences, including frequent presentations at RCMP educational and professional development programs.

His presentations have been made at court expert witness workshops. [ 45 ] He estimates that he has made over 600 presentations to police, community groups, health professionals, medical and medical emergency professionals, and front line workers and representatives of the coroner’s service. [ 46 ] His Curriculum Vitae also details relevant literature that he has reviewed and numerous Internet websites upon which he relies for lectures, research papers, periodicals and current bulletins on drug related issues. [ 47 ] Through these means, he testifies that he has been able learn about current street jargon, phrases, trends, concealment methods, weights and methods of operation of drug traffickers. [ 48 ] Sgt.

Rintoul testified that he has extensive experience, for many years, in the Proposed Areas of Expertise as it relates to heroin and cocaine. He also testified that the emergence of fentanyl, especially in a powder form, as an illicit street drug has been a fairly recent phenomena in B.C. and, in particular, since around 2014 when the production of OxyContin ceased. [ 49 ] He described the similarities and differences between heroin and fentanyl as it relates to the Proposed Areas of Expertise.

Since 2012, he has been including fentanyl as a topic in his presentations and has given 12 lectures on fentanyl to a variety of groups including Ministry of Health officials. [ 50 ] He has been involved in ongoing investigations and joint projects and investigations with the Vancouver Police Department involving fentanyl use and trends. He has been involved in five concluded investigations relating to fentanyl between June 2014 and December 2015. He had two ongoing investigations at the time he was testifying in the voir dire .

He was involved in an October 2014 police seizure of a large amount of fentanyl which I understand was his first involvement in a seizure of fentanyl arising out of an investigation that he oversaw. It started in May of 2014. He testified that based upon his experience, fentanyl is frequently sold to unknowing drug users as heroin. He concluded from the materials that he reviewed in this case that fentanyl was being passed off to the drug users as fentanyl. [ 51 ] As part of his cross examination he confirmed that: (

a) he had limited time to review the supporting materials upon which Constable Stephenson had used to prepare the Stephenson Opinion Report and only did so upon his arrival in Campbell River on April 20, 2016; (

b) he has only been qualified in court as an expert as it relates to fentanyl on one previous occasion; (

c) his police service has been on the Lower Mainland of B.C. although he has provided opinion evidence to RCMP detachments in other parts of the Province, including Campbell River;

(

d) he has not conducted a drug investigation in Campbell River; (

e) he has never spoken to a fentanyl user; (

f) he has never lectured on drug terminology and slang as it relates to fentanyl notwithstanding his knowledge about it and fentanyl’sinclusion in his presentations; (

g) there are universal drug terms and slang but there can be certain slang and jargon that is specific to a certain group; (

h) there is a variation in the price of illicit drugs, generally being cheaper in the urban areas such as the Lower Mainland of B.C. andmore expensive in rural and remote areas such as Campbell River because of factors such as distance, time and availability to procure thedrugs; and (

i) his source of knowledge regarding drug terms, slang and jargon comes from his discussions and interactions with police officers,undercover operatives, drug users and in reviewing financial ledgers seized in drug raids. [52] Sgt. Rintoul has been qualified as an expert in the Proposed Areas of Expertise or similar areas, including a plethora of otherillicit drugs described in his Curriculum Vitae, some 67 times in the Provincial Court of British Columbia and multiple times in theSupreme Court of British Columbia over the last 20 years.

That specifically includes some 23 times involving cocaine and some 9 timesinvolving heroin. I understand that he was also recently qualified as an expert in the Proposed Areas of Expertise, for the first time as itrelates to fentanyl, in the Supreme Court of British Columbia on November 19, 2015, at Salmon Arm, B.C. [53] Notwithstanding that Sgt. Rintoul has been previously qualified as an expert, I am required to scrutinize his qualifications in thecontext of this present case. I will have more to say about this below. [54] In response to direct questions from the Crown, Sgt.

Rintoul testified that he was aware of his duty as an expert to provideinformation to the court on an unbiased and objective basis. [55] He further testified that he was able to provide an unbiased and objective opinion in this case and that his past expert opinionshave been given on that same basis. He further testified that if he disagreed with the opinions in the Stephenson Opinion Report, hewould have so indicated. [56] In the past, he has decided in some cases that seized drugs were not possessed for the purposes of trafficking. [57] Sgt.

Rintoul has reviewed the information outlined in pages 6 to 13 of the Stephenson Opinion Report and since April 18, 2016,he has reviewed additional documents and information. None of this has changed his present opinion about the conclusions reached inthe Stephenson Opinion Report. CASE AUTHORITIES, TEXTS AND AUTHORS CITED BY THE PARTIES [58] The following case authorities and articles have been referred to and relied upon by the parties: a. Case Authorities Cited 1. R. v. Mohan, (SCC), [1994] 2 S.C.R. 9 (“Mohan”) 2. R. v. King, [2011] A.J. No. 387 (“King”) 3. White Burgess Langill Inman v.

Abbott and Haliburton Co., 2015 SCC 23 , [2015] 2 S.C.R. 182 (“White Burgess”) 4. R. v. Sekhon, 2014 SCC 15 , [2014] 1 S.C.R. 272 (“Sekhon”) 5. R. v. Giles, [2016] B.C.J. No. 652 (“Giles”) 6. R. v. Abbey (1982) (SCC), 2 S.C.R. 24 (“Abbey”) 7. R. v. Violette, 2008 BCSC 920 (“Violette”) 8. R. v. Jacobs, 2014 ABCA 172 , [2014] A.J. No. 544 (“Jacobs”) b. Authors and Articles Cited 1. Fenton, Scott: “A Properly Qualified Expert”, National Criminal Law Program, Edmonton, Alberta, July 6, 2010. (“Fenton”) 2.

Paciocco, David M. “Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on PartialExperts” (2009) 34 Queen’s L.J. 565. (“Paciocco Article”). c. Additional Cases Considered 1. R. v. K. (A.), (1999), (ON CA), [1999] O.J. No. 3280 (“K. (A).”) 2. R. v. J.-L.J., 2001 SCC 54 , [2001] S.C.J., No 52; 2000 SCC 51 (S.C.C.) (“J.-L.J.”) d. Additional Authorities Considered 1. Lederman, Sidney N., Bryan, Alan W. and Fuerst, Michelle K.: Sopinka, Lederman & Fuerst: The Law of Evidence in Canada Fourth

Edition; Markham Ontario: LexisNexis Canada, 2014 (“Sopinka, Lederman & Fuerst”); 2. Paciocco, David M. and Stuesser, Lee: The Law of Evidence, Fifth Edition, Toronto: Irwin Law 2008 (“Paciocco & Stuesser”); 3. Anderson, Glenn R: Expert Evidence Third Edition; Markham Ontario: LexisNexis Canada, 2014 (“Anderson”). [59] I have read and carefully considered each of these cases, and read and carefully considered the relevant portions of these articlesand text authorities in reaching my decision, notwithstanding that I may not make direct reference to some of them.

LEGAL PRINCIPLES [60] The recent Supreme Court of Canada decision in White Burgess delivered on behalf of the court by Mr. Justice Cromwellestablishes that the inquiry for determining the admissibility of expert opinion evidence is divided into two steps. In the first step, theproponent of that expert evidence is required to establish the threshold requirements of admissibility. That threshold is tested against thefactors established by Mohan, which are described below. Evidence that fails to meet these threshold requirements should be excluded.

The second step is that of the discretionary gate-keeping role to be performed by the trial judge. The trial judge must decide whetherexpert evidence that meets the admissibility preconditions is sufficiently beneficial to the trial process to warrant its admission despitethe potential harm to the trial process that may flow from the admission of the expert evidence. [61] The decision of Mr. Justice S.R. Romilly in Violette provides a very useful outline for the required analysis and the applicablelaw to determine the admissibility of expert evidence based on the Mohan criteria.

Admissibility of Expert Opinion Evidence [62] Violette provides the following guidance on the law governing the admissibility of expert evidence at paragraphs 23 to 26: 23 The law governing the admissibility of expert evidence is well established. Such evidence is admissible where the criteria set outin R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402 [Mohan cited to C.C.C.] are satisfied: (

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; (

d) a properly qualified expert. 24 In K. (A.), Charron J.A. (as she then was) explained the rule with respect to opinion evidence and the four Mohan criteria asfollows at paragraph 75: In a nutshell, the opinion rule can be stated as follows: opinion evidence is generally inadmissible unless it meets all four criteria set outabove. A consideration of the first two criteria, relevance and necessity requires a balancing of the probative value of the proposedevidence against its potential prejudicial effect. The Supreme Court in Mohan identifies a number of factors that should be considered inthis balancing process.

The proposed evidence will only be admissible if its probative value exceeds its prejudicial effect. The thirdcriterion involves a consideration of other applicable rules of evidence. Even if the proposed evidence is sufficiently probative towarrant admission, it may be subject to some other exclusionary rule and further inquiry may be required.

Finally, the last criterionrequires that expert opinion evidence be adduced solely through a properly qualified expert. 25 The onus rests on the party seeking to tender the opinion evidence to satisfy this test, subject to the trial judge's discretion toexclude overly prejudicial evidence: R. v. Ranger (2003), (ON CA), 67 O.R. (3d) 1, 178 C.C.C. (3d) 375 (C.A.)[Ranger]. Admissibility is established on a balance of probabilities. 26 The trial judge's important gate-keeping function with respect to the admission of expert evidence has been discussed in a numbercases, including R. v.

J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600 at paragraph 28 [J.-L.J.], per Binnie J. for the majority: In the course of Mohan and other judgments, the Court has emphasized that the trial judge should take seriously the role of "gatekeeper". The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basisthat all of the frailties could go at the end of the day to weight rather than admissibility. [63] Next I will consider the law relating to these four Mohan criteria and later the application of those principles to the present case. a.

Relevance [64] Violette, at paragraph 28, cites Sopinka J. in Mohan at paragraph 411 where relevance is defined as it applies to expert opinion. [65] A concise

summary is then provided in Violette at paragraphs 29 and 30 by referring to the decision of Charron J.A. in K.(A.),as follows: 29 Charron J.A. put it another way in K. (A.) at paras. 77-78, explaining how logical relevance can be determined by asking twoquestions: ... (

a) Does the proposed expert opinion evidence relate to a fact in issue in trial?

(

b) Is it so related to a fact in issue that it tends to prove it? If the answer to both these questions is yes, the logical relevance of the evidence has been established. This is the basic threshold requirement for the admissibility of any evidence. But, as we know from many rules of evidence, passing the threshold test is not always enough for proposed evidence to gain admission at trial. Depending on the nature of the evidence or its potential effect, policy considerations often require further screening of the evidence before it can be admitted.

In the case of expert opinion evidence, the courts have recognized the danger that it may distort the fact-finding process ... 30 She referred to the Supreme Court of Canada's caution in Mohan regarding the danger of expert evidence being used to distort the fact-finding process (because such evidence is apt to be accepted by the jury as virtually infallible and having more weight than it deserves), before going on to write as follows at paras. 79-84: Therefore, although the evidence may be logically relevant to some issue in the case, further inquiry is necessary to determine "whether its value is worth what it costs".

In other words, the following question must be asked: (

c) Although relevant, is the evidence sufficiently probative to warrant its admission? In other words, the evidence, although relevant, will not be admitted unless its probative value outweighs its prejudicial effect. Both the probative value of the evidence and its potential prejudicial effect will depend on a number of factors. The particular inquiries that should be made will depend on the particular facts of the case. The following questions may be useful to consider. The list is by no means exhaustive. (

i) To what extent is the opinion founded on proven facts? Although the expert is entitled to take into consideration all possible information in forming his or her opinion, the weight to be given to the opinion will depend on the extent to which the facts upon which the opinion is based are proven: see R. v. Abbey . (ii) To what extent does the proposed expert opinion evidence support the inference sought to be made from it? ... (iii) To what extent is the matter that the proposed evidence tends to prove at issue in the proceedings? ... (iv) To what extent is the evidence reliable? b.

Necessity [ 66 ] In the Mohan analysis, the expert evidence must be “necessary“ rather than merely “helpful” to the jury, that is the trier of fact. [ 67 ] It must necessarily provide information “which is likely to be outside the experience and knowledge of a judge or jury” (see Mohan at paragraph 413 and Violette at paragraph 45 ).

Violette observes that “necessity need not be judged by too strict a standard; absolute necessity is not required.” [ 68 ] At paragraphs 46 to 48, Violette again turns to K. (A.) when analysing necessity and the relevant factors: 46 In K. (A.) , Charron J.A. suggested at para. 92 that the following questions be asked when considering necessity: (

a) Will the proposed expert opinion evidence enable the trier of fact to appreciate the technicalities of a matter in issue? or (

b) Will it provide information which is likely to be outside the experience of the trier of fact? or (

c) Is the trier of fact unlikely to form a correct judgment about a matter in issue if unassisted by the expert opinion evidence? 47 She went on to explain as follows at para. 93: Where the subject matter of the opinion evidence is technical in nature, it is usually easy to meet the criterion of necessity. No one would dispute that the trier of fact is likely to need exert assistance in understanding the engineering principles involved in the construction of a bridge.

However, in cases such as this one, where the proposed opinion evidence is about human behaviour, it is much more difficult to decide whether the opinion will provide information which is likely to be outside the experience of the trier of fact, or whether the trier of fact is unlikely to form a correct judgment about the matter in issue.

It is up to the trial judge in each case to make a judgment call on this issue in the context of the particular case and his or her judgment is entitled to deference. ... 48 Charron J.A. referred to the concern that the trier of fact may give the expert evidence more weight than its true usefulness deserves, and that, accordingly, even if the evidence is necessary to assist the trier of fact, a further inquiry must be made before it can meet the necessity criterion. That inquiry asks whether the need for the evidence is sufficient to overcome its potential prejudicial effect.

She offered a non-exhaustive list of useful questions to ask in this regard: i. To what extent is other evidence available to assist the trier of fact in determining the issue in question? ii. What is the level of complexity of the proposed expert evidence? Is it easily understood or is it likely to confuse the average juror? [ 69 ] Therefore, even if the expert evidence is necessary to assist the trier of fact, further considerations must be examined, namely: “whether the need for the evidence is sufficient to overcome its prejudicial effect.” That prejudicial effect may occur in the situation

where the types of evidence may “overwhelm a jury” or “may unduly captivate the minds of the jurors” (see Violette at paragraph 54). [70] That risk can be ameliorated by the cross-examination of the expert on the foundation or basis for his or her opinions therebychallenging the opinion by presenting alternative inferences that could be drawn. [71] Charron J.A. at paragraph 99 of K.(.A.) says that the availability of other evidence on a point may diminish the necessity ofexpert testimony. R. v.

Pascoe (1997), (ON CA), 32 O.R. (3d) 37, 113 C.C.C. (3d) 126 at 143(C.A.) further notesthat if evidence is not necessary because the Crown is able to prove its case through less prejudicial means, then it should be excluded(see Violette at paragraph 59). c. Opinion on the Ultimate Issue [72] At paragraphs 61 to 64, Violette provides the case authorities and a

summary on the use of expert opinion as it related to theultimate issue to be decided by the trier of fact. It can be summarized as follows:

i) opinion evidence on the ultimate issue is not excluded on that ground alone; ii) it should be considered as part of the cost/benefit analysis in assessing necessity and reliability. An expert witness can express anopinion on the ultimate issue; iii) the witness is not permitted to express an opinion on the ultimate issue in order to facilitate oath-helping or when dealing with theissue of credibility; iv) the closer the evidence approached the ultimate issue, the closer must be the scrutiny to which it is subjected; and

v) in a judge alone trial, the judge may accept or reject the opinion of any expert in whole or in part and the judge should give anyexpert opinion only the weight that it deserves, always mindful that it is the judge alone and not any expert witness called to make thefinal decisions on all issues in the case. Hence, expert evidence on matters of fact should not be excluded simply because it suggestsanswers to issue which are at the core of the dispute before the court. d.

Absence of Any Exclusionary Rule [73] The third Mohan criteria requires consideration and an analysis of whether there is any exclusionary rule that would render theevidence of the expert inadmissible. Sopinka J. at paragraph 414 makes it clear that “[c]ompliance with criteria (a), (

b) and (

d) will notensure the admissibility of expert evidence if it falls afoul of an exclusionary rule of evidence separate and apart from the opinion ruleitself.” [74] Examples include the rule against the admission of disposition or propensity evidence; expert evidence that offends the similarfact evidence rule; the rule against hearsay; and the rule prohibiting evidence of bad character (see Violette at paragraphs 66 to 94). [75] I do not understand that defence is placing much in the way of reliance upon any exclusionary rule.

However, as will be notedbelow, the hearsay exclusion bears some particular mention as it relates to the defence argument when challenging Sgt. Rintoul as aproperly qualified expert. e. Hearsay Exclusionary Rule [76] Romilly J. in Violette writes as follows about the question of hearsay as it relates to the expert’s opinion and its admissibility (atparagraphs 69 to 73): 69 It is well established as a general rule that an expert may base his or her opinion on second hand information.

However, wherethat second hand information is not established before the trier of fact, the weight of the opinion may recede accordingly: see forexample Lavallee at 129-130, per Wilson J.

In Lavallee at 132, Sopinka J. drew a distinction between: i. evidence that an expert obtains and acts upon within the scope of his or her expertise; and ii. evidence that an expert obtains from a party to litigation about a matter directly in issue. 70 In the case of the first scenario, the expert arrives at his or her opinion on the basis of forms of enquiry and practice that are anaccepted means of decision within that expertise.

However, where the information on which the opinion is formed comes from themouth of a party, or from any other source that is inherently suspect, independent proof of the information relied upon is required:Lavallee [infra] at 132-133, per Sopinka J.; City of Saint John v. Irving Oil Co. Ltd., (SCC), [1966] S.C.R. 581, 58D.L.R. (2d) 404; and R. v.

Abbey, (SCC), [1982] 2 S.C.R. 24, 68 C.C.C. (2d) 394, per Dickson J. [Abbey cited toS.C.R.]. 71 The distinction drawn by Sopinka J. in Lavallee has been re-affirmed in connection with data compiled by others and used byexperts in offering opinions on the results of DNA analysis. For example, see R. v. Terceira (1998), (ON CA), 38O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), aff'd (SCC), [1999] 3 S.C.R. 866, 142 C.C.C. (3d) 95 and R. v. S.A.B., 2003SCC 60, [2003] 2 S.C.R. 678, per Arbour J. 72 The nature of the second hand information upon which an expert may rely varies significantly.

For example, a psychiatrist whoseopinion is sought on an issue of criminal responsibility, or a toxicologist summoned to offer an opinion about a blood alcoholconcentration, will often rely on information provided on interview with an accused. On the other hand, experts in the physical sciencesmay rely on a variety of test results compiled by others in accordance with generally accepted scientific principles. 73 While a factor in assessing the weight of an expert's opinion, the degree to which that opinion is based on hearsay alone is not a

factor in determining the admissibility of that evidence: R. v. Palma (2000), (ON SC), 149 C.C.C. (3d) 150, [2000]O.J. No. 5874 (QL) (S.C.J.) [Palma] and Lindsay. In Lindsay, Fuerst J. observed as follows at para. 22: It is clear, as a result of the majority decision in R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852, 55 C.C.C. (3d) 97 (S.C.C.),that an expert opinion is admissible, even if based on hearsay. The hearsay is admissible to show the information on which the expertopinion is based, and not as proof of the facts stated.

Before any weight can be given to an expert opinion based on hearsay, the facts onwhich the opinion is based must be proven by admissible evidence. This does not mean that each specific fact must be proven inevidence before any weight can be accorded the opinion, but the more the expert relies on unproven information, the less weight may begiven that opinion. To put it another way, in assessing the weight to be given to an expert opinion, the trier of fact is required to takeinto account that it is based in part on hearsay: see R. v. Burns, (SCC), [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193(S.C.C). [77] In R. v.

Lindsay, (ON SC), [2005] O.T. 583, [2005] O.J. No. 2870 (QL) (S.C.J.) [Lindsay] Fuerst J. states asfollows in her application of these principles (at paragraph 919): Hearsay evidence is admissible to show the information on which an expert opinion is based, but it is not admissible to prove the truth ofthe facts stated. There is no requirement that each and every fact relied on by the expert must be independently proven before the entireopinion can be given any weight.

The weight attributable to the expert testimony is, however, directly related to the amount and qualityof admissible evidence on which the opinion relies. The more the expert relies on facts not proved in evidence, the less weight may beattributed to the opinion by the trier of fact: see, R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852. f. Properly Qualified Expert [78] The issues that must be considered by the court when determining whether an individual proffered to provide expert opinionevidence is, in fact, a properly qualified expert include: 1.

Whether it is established that he or she has acquired a special or peculiar knowledge through study or experience in the area uponwhich the witness is asked to testify; 2. Is the expertise possessed by that witness a special knowledge and experience going beyond that of the trier of fact and hence willassist in the forming of a correct judgment about the subject matter or in the absence of the assistance of such expertise make it unlikelythat ordinary people will form a correct judgment about the subject matter; and 3.

Whether the witness recognizes and is able and willing to perform their duty to the court to give a fair, objective and non-partisanopinion. The authorities say that this is best addressed when determining that the witness is a properly qualified expert.

Special or Peculiar Knowledge [79] Charron J.A. in K.(A.) at paragraph 103 described this Mohan requirement of a witness presented by a party as an expert havingto have special or peculiar knowledge as follows: [103] As stated in Mohan, "the evidence must be given by a witness who is shown to have acquired special or peculiar knowledgethrough study or experience in respect of the matters on which he or she undertakes to testify." This criterion is usually not difficult toapply. However, it must not be overlooked.

Opinion evidence can only be of assistance to the extent that the witness has acquiredspecial knowledge over the subject-matter that the average trier of fact does not already have. If the witness' "special" or "peculiar"knowledge on a subject-matter is minimal, he or she should not be qualified as an expert with respect to that subject. [80] This passage makes it clear that the expertise can be gained either through study or experience and logically, in my view, from acombination of both. [81] As Fenton notes at

section 1, page 2 of his paper, with reliance upon White Burgess at paragraph 11: In addition, where the proposed evidence is based on novel or contested science, or science used for a novel purpose, the trial judge mustconsider the reliability of the underlying science. [82] Hence, there may be certain types of propounded expertise, premised on experimental aspects, which require the court to inquirewhether or not the basis of the witness’s expertise has been peer reviewed in order to determine whether or not the requirement of arecognized special or peculiar knowledge on a subject matter has been satisfied. [83] Fenton further notes at page 5: An impressive curriculum vitae is essential to a finding that the witness is a properly qualified expert.

The witness must have therequisite educational background and training, and demonstrate familiarity with (and be cross-examined on, if necessary) theauthoritative principles and peer-reviewed works in their field [citing R. v. MC [2014] ONCA 611]. That the proposed witness hasattained certain qualifications with a specialized form of discipline and is familiar with the peer-reviewed literature in their area ofexpertise is not necessarily sufficient.

A review of the relevant literature on a subject matter at the margins of the witness’s education,training and experience, or in a closely related field of study, does not render one an expert [citing R. v. Mathiesen, 2008 ONCA 747 atpara 126 and M.C. at para 76]. Instead, the witness must have demonstrated experience in the specific subject matter of the opinion.

Absent demonstrated experience, the court runs the risk that the proposed witness is not offering an independent opinion, but rather ismerely relying on the opinions of others [citing Mathiesen at para 127 and M.C. at para 100]. [84] Notwithstanding that a witness has previously been qualified by another court as an expert, each court must conduct a review ofthat witness’s qualifications and expertise in the context of the particular case before the court.

That principle was confirmed in Violetteat paragraph 13 and relied on the cases cited therein in the following fashion, namely: K.(A.) at paragraph 76 (C.A.) [K.(A.) cited to

C.C.C.] and R. v. D.D. , 2000 SCC 43 , 148 C.C.C. (3d) 41 at para 12 (although McLachlin C.J. wrote the dissenting judgment, she was not dissenting on this point). [ 85 ] Then, Romilly J. stated in the final sentence of paragraph 13: As Hill J. noted in R. v. D.(A.) , [2003] O.J. No. 4934 (QL), 2003 CarswellOnt 4873 (WLeC) at paragraph 23 (Ont.

S.C.J.) , "Qualification in another trial is not a ticket for life to giving expert opinion evidence in all subsequent legal proceedings." Expertise Beyond the ordinary person [ 86 ] Paciocco & Stuesser observe at page 203 as follows: “Expertise” is a modest status that is achieved when the “expert… possesses a special knowledge and experience going beyond that of the trier of fact.” [ 87 ] They go on to immediately note that: Where threshold exists, deficiencies in expertise can affect the weight of the expert evidence but not its admissibility. [ 88 ] Sopinka, Lederman & Fuerst at paragraph 12.131 note that the expert witness must possess special skill, knowledge or experience which is likely to be outside that of the knowledge or experience of the factfinder. [ 89 ] This is so because the expert’s opinion evidence is admissible to assist the factfinder to appreciate the facts due to their scientific or technical nature and to form a correct judgment on the matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge.

Thus, the expert witness provides a ready-made inference for the trier of fact because the judge or jury did not have the knowledge or experience to draw the required inferences from the evidence presented without the assistance of the expert witness [see Sopinka, Lederman & Fuerst at paragraph 12.130]. [ 90 ] Sopinka, Lederman & Fuerst further note that the expert’s usefulness in this regard is circumscribed by the limits of his or her skill, knowledge and experience. The admissibility of expert evidence is not dependent upon the means by which that skill was acquired.

The court must be satisfied that the witness is sufficiently experienced in the subject matter at issue. There will be no concern whether the expertise was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence [see Sopinka, Lederman & Fuerst at paragraph 12.133, citing in support of that proposition R. v. Marquard , [1993] 4. S.C.R. 233].

The Expert Witness’s duty to the court to give a fair, objective and non-partisan opinion [ 91 ] The Supreme Court of Canada in White Burgess confirms that expert witnesses have a duty to the court to give fair, objective and nonpartisan opinion evidence. [ 92 ] As appears in the headnote

summary and in particular paragraphs 11 to 13, 32 to 40, and in paragraphs 45 to 53, Justice Cromwell sets out the approach to consideration of this criterion. [ 93 ] Cromwell J. notes that the proposed expert witness must be aware of this duty and be able and willing to carry it out. An expert’s opinion must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained the proposed expert or the outcome of the litigation.

It must be unbiased in the sense that it does not unfairly favour one party’s position over another. [ 94 ] A proposed witness who is unable or unwilling to fulfil their duty to the court is not properly qualified to perform the role of an expert. The evidence of such a proposed witness failing to meet that threshold test is to be excluded. However, exclusions at the threshold stage should occur only in very clear cases of where the proposed expert witness is unable or unwilling to provide fair, objective and non-partisan evidence.

Anything less than a clear unwillingness or inability to fulfil this duty on the part of the proposed expert should not lead to exclusion. However, it is taken into account in the overall weighing of the costs and benefits of receiving the evidence. [ 95 ] The expert’s independence and impartiality are not to be necessarily presumed by the court in the absence of a challenge to it. But, states Cromwell J., the expert’s attestation or testimony which recognizes and accepts the duty will generally be sufficient in the absence of such a challenge.

Once the expert attests or testifies to this effect, then the burden shifts to the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because of an inability or unwillingness to comply with that duty. If that burden is satisfied by the opponent, then the burden shifts back to the party proffering the expert to establish on a balance of probabilities that this aspect of the admissibility threshold has been satisfied.

If this is not done, then either the evidence or those parts of the evidence tainted by a lack of independence or impartiality should be excluded. [ 96 ] Cromwell J. notes that this approach to admissibility conforms both to the general rule under the Mohan framework and to the general proposition in law that proponents of the evidence bears the burden of establishing its admissibility.

Cromwell J. observes that meeting this threshold requirement is not particularly onerous and that it will likely be quite rare for a proposed expert’s evidence to be ruled inadmissible for failing to meet that requirement. [ 97 ] Cromwell J. further states that the trial judge must determine whether the expert is able and willing to carry out his or her primary duty to the court.

In doing so, regard is given both to the particular circumstances of the proposed expert and to the substance of the proposed evidence. [ 98 ] Examples are then provided which clarify it is the nature and extent of the interest or connection with the litigation or party which matters. It is not the mere fact of the interest or the connection. Specifically the existence of some interest or a particular

relationship does not automatically serve to render the evidence of the proposed expert inadmissible. By way of a further example, a mere employment relationship with the party calling the evidence will be insufficient to render it inadmissible. [ 99 ] On the other hand, a direct financial interest in the outcome of the litigation will be more concerning to the court, as will an expert’s close familial relationship with one of the parties or where the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court.

Of similar concern is an expert who assumes an advocates role. In the view of Cromwell, J., they are clearly unwilling and/or unable to carry out the primary duty to the court. Cromwell J. emphasizes that the exclusion at this threshold stage occurs only in very clear cases in which the proposed expert is unable or unwilling to fulfil the duty to provide the court with fair, objective and nonpartisan evidence.

Anything less than this clear unwillingness or inability does not lead to exclusion but must be taken into account in the overall weighing of the costs and benefits of receiving the evidence. [ 100 ] Cromwell J. goes on to note that the decision of the court as to whether an expert should be permitted to give evidence despite having apparent interests or connections with the litigation is a matter of fact and degree. The concept of apparent bias is not relevant to the question whether or not an expert witness will be unable or unwilling to fulfil his or her primary duty to the court.

The question is not whether a reasonable observer would think that the expert is not independent when considering an expert’s interest or relationship with the party.

The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court, that being, to provide the required fair, nonpartisan and objective assistance. [ 101 ] In Violette , the issue of a purported lack of independence is dealt with in the context of a former police officer called to give evidence regarding outlaw motor cycle gangs, in general, and the Hells Angels motorcycle club, specifically. The court in Violette (at paragraphs 102 to 105 inclusive) examined and placed reliance upon the decision in R. v.

Klassen, 2003 MBQB 253 [“ Klassen ”]. [ 102 ] In Klassen , Scurfield, J. considered the question of the independence of a police officer whose experience as a drug investigator was held to qualify him to give evidence as to the indicia of trafficking and grow operations and, in particular, went on to discuss some considerations in assessing the independence of such an expert.

Those include the degree of separation from the investigation and, specifically, whether the expert shared the same police service employer; whether the expert worked in the same department or independently of the investigating officers; and the degree of the expert’s insulation from the investigation.

These are examined in determining the weight that the trier of fact should attach to the expert’s opinion. [ 103 ] Cromwell J. summarizes, as follows, with respect to the “Threshold Requirement” of admissibility of an expert opinion’s evidence: 53 In my opinion, concerns related to the expert's duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the "qualified expert" element of the Mohan framework: S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams' Canadian Criminal Evidence (5th ed. (loose-leaf)), at 12: 30.20.50; see also Deemar v.

College of Veterinarians of Ontario , 2008 ONCA 600 , 92 O.R. (3d) 97 , at paragraph 21 ; Lederman, Bryant and Fuerst, at pp. 826-27; Halsbury's Laws of Canada: Evidence , at paragraph HEV-152 "Partiality"; The Canadian Encyclopedic Digest (Ont. 4th ed. (loose-leaf)), vol. 24, Title 62 -- Evidence, at s.469. A proposed expert witness who is unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert.

Situating this concern in the "properly qualified expert" ensures that the courts will focus expressly on the important risks associated with biased experts: Hill, Tanovich and Strezos, at 12: 30.20.50; Paciocco, "Jukebox", at p. 595. [ 104 ] Cromwell J. then summarizes as follows with respect to the “Gatekeeping Exclusionary Discretion” at paragraph 54 as follows: 54 Finding that expert evidence meets the basic threshold does not end the inquiry.

Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge [page210] must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence.

At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. POSITION OF THE CROWN [ 105 ] Crown submits that Sgt. Rintoul is required by the court and will be of necessary assistance to the court in this preliminary inquiry with respect to the issue of possession of drugs for the purposes of trafficking because that particular concept is outside the common knowledge of the court and, hence, there is a need for an expert opinion. [ 106 ] Specifically, Sgt.

Rintoul’s opinion is relevant because one of the questions for the court to consider on the preliminary inquiry is whether there is some evidence that the seized drugs were possessed for the purposes of trafficking. His opinion will assist the court based on his review and

interpretation of the exhibits and the other evidence before the court in this preliminary inquiry, as well, so will his evidence about how he reached his opinions. [ 107 ] As I understand its submissions, Crown says that all of this will assist the court in assessing the reasonableness of the inferences to be drawn from the circumstantial evidence when it considers the relevant questions and, in particular, whether there is any evidence that could reasonably support a finding of guilt on the charges of possession for the purposes of trafficking. [ 108 ] Therefore, as I understand the Crown’s submissions, Sgt.

Rintoul’s evidence will be both relevant and will be necessary in assisting this court in this preliminary inquiry. Thus, says Crown, the first and second threshold of the Mohan requirements for the admissibility of expert opinion evidence is met. [ 109 ] Crown then says that there is no exclusionary rule that prevents the tendering of expert opinion evidence about possession of drugs for the purposes of trafficking and, in fact, it is very common for there to be such expert evidence. Therefore, Crown submits the third threshold requirement of Mohan is met.

[ 110 ] Crown further submits that Sgt. Rintoul is qualified to testify as an expert in all of the Proposed Areas of Expertise and that he has the requisite knowledge and expertise in each category of the three drugs, namely, cocaine, heroin and fentanyl. Therefore, Crown say he meets the fourth Mohan threshold criteria of a “properly qualified witness.” [ 111 ] Thus, based on his 24 years of RCMP involvement and duties with respect to drug investigations and related matters, he has both “rather extensive formal training” and has amassed “extensive experience” in the Proposed Areas of Expertise.

Crown submits that few officers come before the courts with as many qualifications and as much experience as possessed by Sgt. Rintoul in the Proposed Areas of Expertise. [ 112 ] It is further submitted that Sgt. Rintoul’s knowledge exceeds that of somebody within the general population. That said, to be accepted as an expert by a court there is nothing to require that such an individual be the foremost or the only expert in the area in which it is sought to qualify him or her.

Rather, he must have a better than average knowledge in that area and, thus, be able to assist the court. [ 113 ] Crown says that there are a number of different types of experts, drawing from different backgrounds, ranging from academic studies and scientific studies to those whose expertise arises from the amount and the duration of their experience in a particular field or discipline. Sgt.

Rintoul falls within this latter type of expert who has a considerable amount of experience accumulated in his 24 of years of dealing with police drug enforcement. [ 114 ] Crown places emphasis on the large number of times over the last 21 years that he has been accepted by the courts as an expert in the same areas as the Proposed Areas of Expertise and for which Crown now seeks to have him qualified as an expert in this case. Crown points out that during each of the multitude of cases, the courts have been required to consider the Mohan criteria, have all come to the same conclusions about Sgt.

Rintoul’s expertise, and have accepted him as an expert in the Proposed Areas of Expertise. [ 115 ] Based on the evidence provided by Sgt. Rintoul about the similarities between heroin and fentanyl, his expertise with heroin, and his expertise with other opiates, all of this informs his opinion about fentanyl as does his recent work in a number of investigations involving the trafficking of fentanyl. [ 116 ] Crowns further submits that Sgt.

Rintoul is unchallenged on his evidence about his knowledge and acceptance of his role and duty to the court as an expert to be unbiased and objective in his opinion and, further, that he has no bias with respect to the opinion that he intends to give. [ 117 ] Crown specifically notes how Sgt.

Rintoul has gained his previously recognized expertise in fentanyl and rejects that his expertise must be gained from and must rely upon speaking with fentanyl users or police informants about various aspects of fentanyl. [ 118 ] Furthermore, Crown argues that the fact that he reached the same opinion as Constable Stephenson, as expressed in the Stephenson Opinion Report, in the short time available after being contacted by Crown, and then after further consideration and review of exhibits, cannot and should not be taken as an indication that he is biased or lacks impartiality.

POSITION OF THE ACCUSED [ 119 ] Defence submissions are premised on the foundation that the four Mohan criteria apply equally in both trials and in preliminary inquiries. In support of this proposition, reliance is placed on R. v.

King at paragraphs 14 and 15. [ 120 ] I do not understand that defence is arguing that the proposed use of expert opinion evidence in this case does not generally meet the first two Mohan threshold criteria of relevance and necessity in assisting this preliminary inquiry court. [ 121 ] That is not to say the defence is precluding themselves from further arguing in the course of the preliminary inquiry about the admissibility of certain expert evidence on the basis of such things as being beyond the scope of the expert’s expertise, its relevance or its overly prejudicial effect. [ 122 ] However, I do understand that defence is arguing that Sgt.

Rintoul does not meet the threshold requirement of a “properly qualified witness” for a significant portion of the Proposed Areas of Expertise based on his background and experience. [ 123 ] Defence also argues that the circumstances surrounding his engagement as an expert witness are such that issues of a lack of independence and impartiality arise and, therefore, do not allow him to be a “properly qualified witness.” [ 124 ] Defence says that notwithstanding his impressive Curriculum Vitae in police surveillance and investigative techniques as it relates to drug trafficking generally, Crown’s attempt to qualify Sgt.

Rintoul in the Proposed Areas of Expertise amounts to an attempt to qualify him in too broad an area of expertise or beyond a proper scope of expertise. [ 125 ] In particular, defence says that Sgt. Rintoul should specifically not be qualified as an expert with respect to:

a) fentanyl; or

b) in the slang and drug language utilized in Campbell River because he lacks unique or specialized knowledge. [ 126 ] Defence submits that a properly qualified expert under the Mohan test requires more than above average knowledge within a field. Furthermore, there must be an element of “special or peculiar knowledge” accumulated throughout the course of experience. In defence’s submission, expertise gained through experience is highly contextual. [ 127 ] I understand that defence argues that such context is absent for Sgt.

Rintoul in many of the Proposed Areas of Expertise for which Crown seeks to have him accepted as an expert. [ 128 ] In that regard, it is suggested that there should be significant concerns by the Court about Sgt. Rintoul’s specific expertise in fentanyl and, in particular, in the context of possession of fentanyl for the purposes of trafficking in the Campbell River area.

[ 129 ] Defence says the concerns arise because his experience has never included surveillance, conducting drug trafficking investigations, handling undercover operatives or informants, or making uncover drug purchase, all in the Campbell River area. [ 130 ] Furthermore, there is nothing in the contextual experience of Sgt.

Rintoul which shows that he has an ability to interpret the language and jargon of drug traffickers specifically as it relates to fentanyl. [ 131 ] Furthermore, the suggestion is that he has no expertise in interpreting the language and jargon of drug users and drug traffickers in the Campbell River area. [ 132 ] It is argued that all of these areas are what Crown seeks to have him accepted as an expert in and that these are areas that are beyond his expertise. [ 133 ] Thus, it is said by the defence that Crown wants this court to accept Sgt.

Rintoul on a perfunctory application of the Mohan test because he has previously been qualified as an expert. However, the court cannot do so because his experience is contextual in nature and the context does not extend to these areas. [ 134 ] Defence also suggests that specifically with respect to fentanyl, his expertise was conceded by defence counsel in the recent B.C. Supreme Court case and, accordingly, it is suggested by defence in this present case that Sgt.

Rintoul did not undergo any or adequate scrutiny as to his expertise under the test laid out in Mohan . [ 135 ] I note parenthetically that there is no transcript of proceedings or reasons before me in support of that submission regarding the procedures used by counsel to the presiding Supreme Court justice to qualify Sgt. Rintoul as an expert in fentanyl. [ 136 ] Every court, in my view, must be properly satisfied about the expertise of a witness proffered to provide expert opinion evidence. Therefore, it is highly unlikely that the qualification of Sgt.

Rintoul and the application of the Mohan test were as perfunctory as defence suggests. In the absence of any evidence to the contrary, I must presume that the court took all the necessary steps and made the necessary inquiries in order to qualify Sgt.

Rintoul as an expert in the area sought by Crown in that case, and which I understand touches upon the same areas of expertise at issue in this case, namely, with respect to trafficking in fentanyl. [ 137 ] Therefore, I reject the defence submission in its entirety on this particular point, and I will say nothing further about it other than to say that the law is clear that notwithstanding that Sgt. Rintoul has been previously qualified as an expert, it remains necessary that he be qualified again by this court in this matter. [ 138 ] It is further suggested by defence that Sgt.

Rintoul’s experience in investigating fentanyl is quite limited and his involvement in seizures is quite recent, thus, it is at the “margins of his experience” and, hence, he lacks the requisite expertise to be qualified as an expert on this subject and what defence says is too broad a scope contained within the Proposed Areas of Expertise. [ 139 ] Defence generally attacks the basis of Sgt.

Rintoul’s expertise saying that based upon his testimony and his Curriculum Vitae, he, essentially, is an administrator and a manager; his expertise has not been peer-reviewed; and, as previously noted, he has very little experience dealing with fentanyl, and he only really manages or oversees fentanyl and cocaine investigations rather than being actively involved on the front lines.

Thus, I understand the overarching argument to be, that all of this leaves him lacking in the required first- hand experience and expertise to be qualified as an expert in the Proposed Areas of Expertise. [ 140 ] Defence counsel goes on to submit that Sgt. Rintoul’s knowledge has essentially been gained through second and third hand sources rather than directly from first-hand experiences or from conducting research or studies or reviewing any data.

Thus, he has built his knowledge based on anecdotal sources. [ 141 ] Accordingly, I understand defence to be saying that because of the supervisory and administrative nature of Sgt.

Rintoul’s work in drug investigations, he lacks demonstrated experience in areas covered by many of the Proposed Areas of Expertise, in particular, with respect to fentanyl and, specifically, with respect to the language of drug users and traffickers particularly in Campbell River. [ 142 ] In that regard, defence contends, therefore, that the best expert evidence would be from a person with first-hand knowledge of these areas, which is lacking in Sgt. Rintoul.

Reliance is placed by defence on the principles set out in the Supreme Court of Canada decision in Sekhon and, in particular, at paragraphs 49 and 50 which deals with the inherent dangers and the highly prejudicial risks of admitting what is characterized as “anecdotal evidence” that lacks relevance or probative value. Impartiality and Independence Requirement [ 143 ] Defence further suggests that Sgt.

Rintoul fails to meet the independence and impartiality requirement of an expert who must be able to be and must be seen to be able to be fair, objective and nonpartisan and who must be able to provide a fair, objective and impartial opinion. [ 144 ] The circumstances of his retainer cannot escape the necessary scrutiny required as outlined by the Supreme Court of Canada in White Burgess . [ 145 ] Furthermore, the proposed testimony is plagued optically with what has been characterized in the Paciocco

Article as “confirmation bias.” [ 146 ] Defence says that there is a realistic concern that Sgt. Rintoul will not be able to satisfy his overarching duty to the court of impartiality and independence. In that regard, defence points to the fact that within less than a 24-hour timeframe, Sgt. Rintoul was adopting the opinions expressed by Constable Stephenson in the Stephenson Opinion Report. Defence questions how Sgt. Rintoul could have come to any objective and unbiased conclusion given the time limitations imposed upon him. There was no objective, critical or independent review of the evidence. In fact, Sgt.

Rintoul was telling Crown that he could adopt the Stephenson Opinion Report’s conclusions within an hour of having read that report. Defence, therefore, characterizes Sgt. Rintoul as being an advocate for the

acceptance of the Stephenson Opinion Report and for the opinions expressed in it. Reliance is placed on the White Burgess case, paragraphs 11 to 13 , which reviews the concerns about “Expert Witness Independence and Impartiality,” the

summary provided in paragraph 32 as well as the

summary of the “Expert’s Duties and Admissibility” as set out in paragraphs 33 and 34. [ 147 ] Defence has referred the court to and relies upon the Paciocco

Article referenced above on the issues of lack of independence and impartiality and bias. [ 148 ] The

article has been referred to by the Supreme Court in White Burgess at paragraph 36 and in another Supreme Court case referred to in that same paragraph. [ 149 ] The abstract for the Paciocco

Article states, in part, as follows: In our adversarial legal system, parties select, pay for, prepare and call their own expert witnesses. This inevitably leads some experts to favour their clients rather than serving as impartial, objective advisors to the tribunal. The author identifies several reasons for this. First, some experts lack independence because they share an interest with the party who called them. Second, and more commonly, many expert witnesses succumb to adversarial bias.

Adversarial bias includes "selection bias," which is a consequence of permitting adversaries to choose experts according to who will serve the needs of their case, and "association bias," which is the natural tendency of experts to favour the party who called them. The effects of association bias range from dishonest modifications of opinions to conformation bias, the tendency of experts to search for evidence supporting the party who called them. Third, experts may be biased because of their own professional interests in supporting the theories or techniques they are using.

Finally, "noble cause" distortion can lead experts (consciously or unconsciously) to alter their opinions in order to further what they perceive to be a worthy cause. [ 150 ] Defence makes specific reference to paragraphs 16, 17, 18 and 63 which state, in part: [16] "Association bias" describes "the natural bias to do something serviceable for those who employ you and adequately remunerate you." It includes the litany of conscious and unconscious pressures on experts to work in the interests of those they are associated with in litigation. [17] The most extreme examples of association bias are the jukebox witnesses who consciously modify their opinions to suit the party who pays them.

Though dishonest jukebox witnesses are likely rare, association bias is not. Even witnesses who set out to be honest can humour their consciences under the pressure of pleasing their patrons by using less odious forms of factual manipulation such as "spin" or selective presentation. In fact, it is probable that the most insidious manifestation of adversarial bias arises from confirmation bias -- the unconscious tendency of those who desire a particular outcome to search for things that support that outcome and to ignore or reinterpret contradictory information.

Confirmation bias is not only the leading cause of "tunnel vision" in police investigations -- it can and does afflict experts as well. We know this because confirmation bias preys on anyone who must exercise judgment in plying a discipline and who may be inclined to support a particular outcome. In Lovell & Christmas Ltd. v. Wall , Lord Justice Fletcher Moulton observed the natural tendency of honest people, including expert witnesses, to focus their opinions in the direction in which their interest points.

This poses obvious risks in the case of "custom of the trade" or "connoisseur experts" -- those who rely on subjective judgment or experience rather than objective science to achieve their opinions. By way of simple illustration, a witness before the Goudge Commission described a blind study in which world-class fingerprint examiners who, after being given scientifically irrelevant information suggesting the guilt of the person whose fingerprints they were examining, changed their conclusions and identified fingerprints they had previously declined to identify.

Even for experts from the scientific community, confirmation bias can be an appreciable risk, for little that scientists do is completely objective or self-verifying. The point, of course, is that in a world of

interpretation, we tend to find what we are looking for. Another troubling discovery that emerged from the Goudge Commission was the mantra, expressed for a time in the Office of the Chief Coroner of Ontario's protocol, directing pathologists to "think dirty" when approaching a post-mortem examination of a child under two years of age. Although the Commissioner characterized this as creating a problem of perception, it is an approach that veritably guarantees confirmation bias. Think dirty and you find dirty. [18] Of course, you need a theory, goal or outcome that attracts you to succumb to confirmation bias.

The reason this sort of bias is an endemic risk for expert witnesses in adversarial settings is that adversarial litigation encourages theories and shared goals and outcomes between litigants and their experts. Likely more pressing than the sense of obligation that comes from accepting someone's money is the sense of joint venture that adversarial litigation promotes.

It is natural for someone called as a witness for a party to feel pressure to stay on side and be seen to be independent. [63] In order to expose adversarial bias, an effort should be made to detect pressures that the retaining party has put on the expert. This can include exploring the nature and extent of the contact between the expert and those with an adversarial interest in the case -- such as, in a criminal proceeding, the police. Was the expert's task initially assigned in a neutral way, or was the expert prompted in any way about the desired opinion?

Bruce MacFarlane reports that disclosing to the expert the theory of the case, or the litigants' expectations of what the expert will find, is "one of the three biggest dangers in forensic practice." Subject to limitations imposed by the law of privilege, opposing counsel should therefore find out as much as possible about discussions that occurred between the expert and the litigant or counsel, and about the task assigned to the expert.

To the extent possible, the expert should be asked whether he or she showed draft reports to the retaining party, and about what input that party had in any changes made. [Footnotes deleted] [ 151 ] Defence submits that while there was no nefarious intent on the part of either Crown or on the part of Sgt. Rintoul, the whole of the circumstances including the timing surrounding Sgt.

Rintoul’s engagement, the presentation of Stephenson Opinion Report to him which contained a preconceived theory, and his very quick adoption of that theory within an hour is a “text book case of confirmation bias” amounting to “partisan advocacy.” Therefore, Sgt. Rintoul should not be admitted as an expert because he cannot provide independent and unbiased evidence. Application of the Legal Principles to this Case Admissibility of Expert Opinion Evidence [ 152 ] As noted at the outset, I have accepted that Crown has established, in accordance with its burden, that Sgt. Rintoul’s proposed

evidence satisfies the four criteria of Mohan . Accordingly, I accept his qualifications as an expert in the Proposed Areas of Expertise. Therefore, he is permitted to give expert opinion evidence within the scope of the Proposed Areas of Expertise in the voir dire . [ 153 ] I will now explain my reasons for this conclusion within the context of the Mohan analysis. a. Relevance [ 154 ] From the evidence presently before me it is clear that much of the evidence being proffered by Crown in the voir dire is circumstantial in nature. [ 155 ] According to the defence’s Statement of Issues and Witnesses filed pursuant to

section 536.3 of the Criminal Code , the issues on which defence wants evidence to be given at the preliminary inquiry relate to: “identity, ‘possession’ and ‘for the purposes’.” [ 156 ] I must determine whether or not the evidence of Sgt. Rintoul is logically relevant to these matters being the subject matter of the voir dire . [ 157 ] I am satisfied that the Proposed Areas of Expertise relates very significantly to facts in issue in this voir dire , specifically being “possession” of the drugs and “for the purpose of” trafficking those drugs. [ 158 ] I am also satisfied that the evidence that Sgt.

Rintoul can provide within the scope of the Proposed Areas of Expertise will tend to prove these facts in issue. [ 159 ] Having concluded that the evidence of Sgt. Rintoul is logically relevant to some issue in the voir dire , I must then ask, is the evidence sufficiently probative to warrant its admission? Or to put it another way, does its probative value outweigh its prejudicial effects? [ 160 ] I am satisfied that the probative value of Sgt. Rintoul’s proposed evidence is high with respect to proving matters which are significant issues in the voir dire .

In particular, Crown is relying upon that evidence to establish that the Accused was both in possession of fentanyl and cocaine (although none were found on her) and that such possession was for the purposes of trafficking. These, of course, are very key issues in these proceedings. [ 161 ] I am also satisfied that the probative value outweighs its prejudicial effect. The opinion of Sgt. Rintoul will be based upon his analysis of items discovered and seized by the police both in the execution of the search warrants as well as incidental to arrest of the Accused and her co-accused.

A significant portion of the items seized or derivative evidence such as transcripts of text messages from seized cell phones or photographs of seized evidence are before the court as exhibits. This material has been examined by Sgt. Rintoul. Hence, to a significant extent, the opinion of Sgt. Rintoul will depend and rely upon important facts about the kind and nature of those seized items and the derivatives of it all supported by the evidence that Crown has led in the voir dire. [ 162 ] Furthermore, I am satisfied that Sgt.

Rintoul’s opinion evidence is based on his years of observation and experience in the Proposed Areas of Expertise and will be reliable. His opinions are not based upon a “novel scientific theory or a technique” or some suspect or discredited form of behavioural science. [ 163 ] Also, I am further satisfied that to a very significant extent, the proposed expert opinion of Sgt. Rintoul will support the inference that Crown seeks to be made from the evidence the Crown has introduced regarding the seized items and the derivative evidence. [ 164 ] I have further

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