Her Majesty the Queen - v. -, 2016 SKPC 170

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 170 Date: December 20, 2016 Information: 44666707 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Devin McGinnis and Sean McGonigle Appearing: K. Grier For the Crown R. Dick, For the Accused, Devin McGinnis M. Buchinski For the Accused, Sean McGonigle DECISION ON VOIR DIRE (

S) M.L. GRAY , J BACKGROUND [ 1 ] The accused are jointly charged with the following offences:

1. Possession of cannabis marihuana in an amount not exceeding three kilograms, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ; 2. Possession of cannabis resin, in an amount not exceeding three kilograms, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ; and 3. Unlawfully producing cannabis resin contrary to s. 7(1) of the Controlled Drugs and Substances Act . [ 2 ] In addition, Mr. McGonigle is charged on a separate information with: 1.

Possessing a prohibited weapon, to wit: a butterfly knife without being the holder of a license under which he may possess it, contrary to s. 91(2) of the Criminal Code ; and 2. Having in his possession property or proceeds of property having a value not exceeding five thousand dollars, knowing that all or part of the property or proceeds was obtained or derived, directly or indirectly from the commission, in Canada, of an indictable offence: to wit trafficking in a controlled substance, thereby committing an offence contrary to s. 354(1) and s. 355 (

b) of the Criminal Code . [ 3 ] At the outset, counsel for both accused admitted jurisdiction and the nature of the substances, obviating the need for proof of those elements. Further, the identity of the accused McGinnis was admitted. Nonetheless, both accused were identified in court by the officers who dealt with them. [ 4 ] Counsel for both accused filed notice with the court asking for exclusion of evidence based on alleged violations of s. 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms (the Charter ). The Crown evidence on these issues was called on a voir dire ; neither accused testified. ( Voir Dire #1) [ 5 ] A second voir dire issue arose with respect to whether Constable Taylor could be qualified as an expert to express opinion evidence in areas related to drug use, possession and trafficking; the specific areas of expert evidence are particularized in paragraph 37 of this decision. ( Voir Dire #2) [ 6 ] The uncontradicted evidence in this matter can be briefly stated.

About 10:30 a.m. on July 22, 2105, Constable Scanlan was dispatched to the 300 block of Avenue I North in the City of Saskatoon to deal with a complaint of a missing person. As he got out of his unmarked police vehicle, a woman yelled at him that he was too late for a drug raid and that the drug dealer had gone. Once he dealt with the original complaint, he returned to speak to her. She told him that a person was dealing drugs from the house across the street (328 Avenue I North) and that he had left the house that morning carrying a duffle bag. She had noted that the duffle bag smelled of fresh marihuana.

Further, she reported that when the windows at 328 were open, the odour of marihuana was so potent that she could smell it across the street. [ 7 ] After speaking to her, the officer went across the street to 328 Avenue I North and knocked on the door. He maintained that his sole purpose for going to that residence was to ascertain the identity of its occupants in order to advise the Drug Unit so that they could investigate. He denied that he wanted to confirm the neighbour’s complaint about the smell of marihuana and maintained that he had no expectation that he would smell it when the door opened.

He was thoroughly cross-examined as to his intentions and was unshaken in his evidence. He acknowledged that his intentions changed when the odour of marihuana came wafting out of the home with Mr. McGinnis. [ 8 ] He identified himself to Mr. McGinnis as a peace officer and advised that there had been a complaint of drug sales from this

address. He asked Mr. McGinnis who lived at the house, who left with a duffle bag and what the duffle bag might contain. He asked whether there was a grow operation or large quantities of marihuana on the premises. Ultimately, the accused was arrested for simple possession at 11:23 a.m., and the house was secured while the officer obtained a search warrant. Mr. McGonigle, a second resident of the home who had been named by Mr. McGinnis, arrived while the officers were waiting for the search warrant and he, too, was arrested for simple possession.

Although both accused were advised of their rights to counsel at the time of their arrest, the implementation of those rights were withheld, on the instruction of Constable Scanlan, pending the execution of the search warrant. [ 9 ] When the search warrant was executed at 7:58 p.m., the officers found a machete, a baseball bat and a knife with a double- edged blade in the front entrance. In plain view in the living room area of the home, a large garbage bag of fresh marihuana was found; another such bag was later located in the basement.

A thorough search of the home turned up Canada Post shipping boxes, minus the labels, that smelled of marihuana, bits and stems of marihuana, cannabis resin, butane torches, butane cans, a bong, a bullet proof vest, glass tubes with cannabis resin inside, packaging material labelled as “smelly-proof”, cell phones, a large digital scale, baggies, a vacuum sealer, dehydrator, “essential in oil filtration” filters and a hot plate. The total weight of the marihuana seized was 2776.81 grams; the total of the cannabis oil, butter and resin was 35.87 grams. Cash in the amount of $440.00 was seized from Mr.

McGonigle; $69.82 in loose change was located in the home. Voir Dire #1 [ 10 ] The issues raised by Mr. McGinnis are: (

i) that Constable Scanlan’s entry onto the property was unlawful and violated s. 8 of the Charter ; (ii) that Mr. McGinnis was unlawfully detained upon exiting his residence in contravention of s. 9 of the Charter ; and (iii) that s. 10 of the Charter was breached when: (

a) Mr. McGinnis was not advised immediately upon his detention that he had a right to counsel and (

b) he was not permitted to exercise that right without delay. [ 11 ] The issues raised by Mr. McGonigle are similar: (

i) that there were no grounds to arrest Mr. McGonigle and his arrest and detention violated s. 9 of the Charter ; (ii) that the search of Mr. McGonigle’s residence was unlawful as the grounds to obtain the search warrant were insufficient, thus violating s. 8 of the Charter ; and (iii) that Mr. McGonigle was denied the right to contact counsel without delay in breach of s. 10(

b) of the Charter . Entry onto 328 Avenue I North [ 12 ] Counsel agree that there is an implied licence to any member of the public on legitimate business to enter onto private property, knock on the door and speak to the occupant. Counsel for the accused contend that this was not the purpose for which Constable Scanlan entered the property; rather, they submit that he approached the door solely for the purpose of determining the presence of marihuana.

Where police enter for the purpose of gathering evidence, they exceed the implied licence to enter and embark upon a search within s. 8 of the Charter : see R v Rogers , 2016 SKCA 105 at para 29 . The court in Rogers concluded that the police are entitled to attend to a residence to make enquiries related to an investigation such as following up on complaints of criminal activity or determining the identity of a suspect: see Rogers at paras 35-50 .

[13] In the case at hand, Constable Scanlan was thoroughly cross-examined in relation to his purpose for knocking on the door ofthe residence of the two accused. He was unshaken in his testimony that he went to identify the occupants and to follow up on thecomplaint made by the neighbour. He denied that he was there to “sniff” for marihuana. It is the view of this Court that it is reasonablethat the officer would feel duty-bound to take some steps in furtherance of the report that someone was dealing drugs and that one personhad left with a duffle bag known to smell of marihuana.

It is equally reasonable that he would want to determine the identity of theoccupants of the offending residence. There is nothing in the evidence that causes me to disbelieve the officer on this point and, indeed,his questions to Mr. McGinnis were consistent with his stated purpose.

As stated in R v Parr, 2016 BCCA 99 at para 55: . . . provided that the police act for a purpose falling within the scope of the implied invitation to knock principle, and for no otherreason, the fact that they are aware evidence might be acquired in the course of the entry does not make them “intruders” acting outsidethe scope of the doctrine. (Emphasis in the original) [14] The Court finds that Constable Scanlan did not exceed the scope of the invitation to knock principle and was not on theproperty for the purpose of conducting a search within the meaning of s. 8 of the Charter. Arrest and Detention-- Mr.

McGinnis [15] In response to the officer’s knock, Mr. McGinnis came out of his home, down the stairs and stood at ground level where heconversed with Constable Scanlan for some 23 minutes. The officer described the conversation as “casual” with Mr. McGinnis holdinghis phone and appearing to send and receive text messages. Although the officer was armed, he did not draw any weapon. He did notimmediately place Mr. McGinnis under arrest or tell him that he was being detained; Mr. McGinnis did not ask to leave although hewould not have been permitted to do so. The Court accepts that Mr.

McGinnis did not ask to leave and was not aware that he would nothave been allowed to depart. There is no evidence that Mr. McGinnis was physically restrained or directed to do anything. ConstableScanlan was the only officer with Mr. McGinnis until Constable Koch arrived. [16] Counsel for Mr. McGinnis submits that the accused was unlawfully detained while he was outside his residence speaking tothe officer.

Counsel for the Crown submits that not every interaction with the police constitutes a detention within the meaning of theCharter and referred the Court to R v Mann, [2004] SCR 59 at para 19: . . .the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for the purposes ofidentification, or even interview.

The person who is stopped will in all cases be “detained” in the sense of “delayed” or “kept waiting.”But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical orpsychological restraint. [17] It is clear on the evidence that Mr.

McGinnis was not physically restrained; the issue is whether the circumstancesdemonstrate a psychological detention which was defined in R v Grant, 2009 SCC 32 , [2009] SCJ No 32 at para 44: . . .where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would concludeby reason of state conduct that he or she had no choice but to comply. [18] In that same paragraph, the Supreme Court continued: In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained.

To determinewhether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of theliberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providinggeneral assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individualfor focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [ 19 ] After reviewing and considering the evidence in the present case, it is the view of the Court that Mr. McGinnis was not psychologically detained. The officer attended to the residence of the accused to make general inquiries with respect to a complaint that a drug dealer had left the home with a duffle bag known to smell of marihuana. The accused left his home on his own volition knowing there was a police officer at the door.

The evidence is that the accused came through one door into a front porch area and then through the outside door and down the steps; he would have seen the uniformed officer before he chose to leave his home. He was not compelled to leave or to answer questions and, in fact, chose not to answer some; he was not restricted in his movements or actions, physically or by direction. The conversation took place in view of the public and was characterized as “casual.” On an objective consideration, there is nothing in the evidence to suggest that Mr.

McGinnis felt any degree of coercion or compulsion to comply with the officer. Counsel suggests that because Constable Scanlan would not have allowed the accused to walk away, the Court can find a psychological detention. It is the view of the Court that there must be more than the subjective intent of the officer to establish a psychological detention. Here, the accused was not told that he could not leave; it was simply the officer’s intention to detain him if he attempted to do so. There is nothing in the evidence to suggest that the accused felt compelled to remain or compelled to converse with the officer.

In addition to speaking to the officer, he was engaged in a conversation via text. Further, he made choices as to which of the officer’s questions that he would answer. These are not the actions of a person who feels compelled to submit to the authority of the police. The Court finds that the 23 minutes that Mr. McGinnis spent with the officer was not a detention within the meaning of s. 8 of the Charter and any statements made by him were voluntarily. [ 20 ] Section 495(2) (

b) of the Criminal Code gives a peace officer the authority to arrest an individual found committing an offence punishable by

summary conviction. Such a person shall not be arrested where the person’s identity can be established, where evidence can be preserved and where continuation or commission of an offence can be assured without resorting to an arrest: see s. 495 (2) (d) (emphasis mine). [ 21 ] Constable Scanlan smelled the “extreme scent” of fresh marihuana drifting from the residence occupied by Mr. McGinnis. He concluded that there was evidence within that home and that no exigent circumstances existed to justify police entry to the home without a warrant.

The officer believed that the arrest of the accused was necessary to preserve that evidence. The Court accepts the evidence of the officer and is satisfied that the accused was found committing an offence based on the smell of marihuana and the information that he received from the neighbour. Therefore, the arrest was justified and lawful. Arrest and Detention-- Mr. McGonigle [ 22 ] In the course of his conversation with Mr. McGinnis, Constable Scanlan learned that Mr.

McGonigle also resided at 328 Avenue I North and was the individual who left the home that morning with a duffle bag reported to smell of marihuana. He had noted the strong smell of marihuana from the residence occupied by Mr. McGonigle. This knowledge is sufficient to conclude that Mr. McGonigle was committing the offence of possession of a controlled substance and that his arrest was necessary to preserve evidence within the home. Constable Scanlan communicated to Constable Sutherland that Mr. McGonigle could be arrested; Constable Sutherland believed this information and effected the arrest when Mr.

McGonigle returned to his home. An officer is entitled to act on information received from another officer in effecting an arrest: see R v Charles 2012 SKCA 34 at para 19 . The Court is satisfied that the arrest of Mr. McGinnis was lawful and did not violate s. 9 of the Charter . Right to Counsel [ 23 ] Having found that Mr. McGinnis was not detained, there was no duty on the officer to advise the accused of his right to counsel until the arrest was made. The Court is satisfied that both Mr. McGinnis and Mr. McGonigle were advised of their rights promptly upon their arrest.

The larger issue arises with the delay in permitting both accused to exercise that right.

[24] Constable Scanlan candidly acknowledged his instruction that the two accused not be given an opportunity to call counsel. He cited the following reasons for that instruction: (

i) two occupants of the home had not been located at the time the direction wasgiven. Indeed, a warrant still was outstanding for “Skeeter” McGinnis on the date of the trial; (ii) he had concern about interference withthe investigation by either the suspects or the counsel to whom they might speak; (iii) time was required to prepare a search warrant; and(iv) there was duffle bag that had not been recovered which likely contained evidence of the offence. Mr. McGinnis was arrested at11:23 a.m.; Mr. McGonigle was arrested at 12:15 p.m.

It was shortly after 8:30 p.m., while the execution of the search warrant was wellunder way, before Constable Scanlan provided instruction that both accused could be arrested for possession for the purpose oftrafficking and read their rights to counsel. Only at that point were they free to consult a lawyer. [25] In R v Strachan, (1988) (SCC), 46 CCC (3d) 479, the Supreme Court of Canada held that the police candelay implementation of the right to counsel where a search warrant is being executed and guns are believed to be present.

Delaying acall to counsel has been justified in several cases, usually where volatile situations involving firearms are under investigation and thepolice have identifiable concerns about a potential for violence or the destruction of evidence: see R v Schultz (1991) (BC CA), 67 CCC(3d) 360 (BCCA); R v Learning 2010 ONSC 3816. [26] In the case at hand, the officer’s concerns were (

i) preserving possible evidence, and (ii) locating the other suspects, oroccupants of the residence. There was no evidence before this Court suggesting that anyone else was in the house at the time thatConstable Scanlan was speaking to Mr. McGinnis outside. As a result, when Mr. McGonigle was arrested at 12:15 p.m., two of theoccupants of 328 Avenue I North were in custody and the residence was secured, thus preventing the destruction or removal of anyevidence within. The whereabouts of the bag that Mr. McGonigle had carried from the home was unknown at the time of his arrest.

That the third resident of the home, “Skeeter” McGinnis, might interfere with the investigation is speculative, at best. On these facts,the Court is satisfied that withholding a call to a lawyer until after the arrest of Mr. McGonigle was reasonable and justified. However,continuing the delay for a further eight hours was not justified; this was not a volatile, high-risk investigation involving weapons thatwould excuse withholding a fundamental Charter right. As was stated in R v Tieu, [2016] AJ No 674 at para 63: The exigent circumstance exception to facilitating a person’s 10(

b) rights is not and must not become a common or default approach usedby the police on a regular basis. The justification is necessarily narrow and will only excuse a breach of

section 10(

b) in genuinelyextraordinary circumstances. To find otherwise would effectively condone police behaviour that blatantly disregards the Charter rightsof accused persons, while also undermining those situations in which extraordinary circumstances are actually present and a delay isproperly justified. [27] The Court is not satisfied that the delay in implementing the rights to counsel was necessary to either prevent imminent bodilyharm or imminent loss or destruction of evidence: see Tieu at para 62. Accordingly, the implementation of s. 10(

b) was breached withrespect to both Mr. McGinnis and Mr. McGonigle. Search Warrant [28] Constable Scanlan testified that he obtained a search warrant for the dwelling at 328 Avenue I North. Neither accused broughtan application to challenge the validity of that warrant. Counsel for Mr. McGinnis concedes that, as a result, he is unable to challenge thefruits of the warrant. Counsel on behalf of Mr.

McGonigle submits that the evidence and information used to obtain the search warrantwas obtained illegally and if that illegally obtained information was expunged from the information to obtain, there would have been nobasis to issue the warrant. Ergo, the warrant is invalid and the search unlawful. [29] The difficulty with Mr. McGonigle’s position is that the search warrant and accompanying information to obtain were notplaced before the Court, nor was Constable Scanlan, as the informant, cross-examined on it.

With no application pursuant to R vGarifoli, (SCC), [1990] SCJ No 115, there is no basis for the Court to analyse the validity of the warrant; nor can theCourt draw any conclusions as to what effect, if any, the exclusion of certain evidence might have. Accordingly, the only evidencebefore the Court is that the search of the residence was conducted pursuant to a judicially pre-authorized warrant and was lawful. Remedy-- Mr. McGinnis

[30] Mr. McGinnis submits that evidence flowing from the officer’s entry onto the property, including the smell of marihuana andthe conversation between Mr. McGinnis and the officer, which was tendered to support the grounds for arrest, should be excluded byvirtue of the constellation of Charter breaches committed by the officer. [31] Having found that the accused was not unlawfully detained and that the odour of marihuana was not obtained by virtue of anunlawful search, the Court is obliged to consider whether evidence should be excluded pursuant to s. 24(2) of the Charter because of theviolation of s. 10(b).

A refusal to permit an accused to contact a lawyer for over eight hours is, on its face, a serious breach of afundamental Charter right. It is important to note that the police seemed cognizant of this violation and made no effort to obtainevidence from the accused. The Court is satisfied that it was a genuine, although misguided, concern for the integrity of theinvestigation and the preservation of evidence which prompted this breach and not a deliberate flaunting of the rights of the accused. Theviolation of s. 10(b), standing alone, was a serious breach of Mr. McGinnis’ Charter rights.

However, no evidence was obtained and theofficer demonstrated good faith by applying for the search warrant that was ultimately used. The Court is satisfied that the conduct ofthe officer was not malicious. Further, there is no nexus between the breach and the evidence sought to be excluded. Consideration ofthis arm would tend toward inclusion. [32] The effect on the accused was significant. He was arrested, taken from his home and held for many hours without theopportunity to consult with a lawyer about his predicament.

The seriousness of this violation standing alone might tilt toward exclusionof evidence in spite of the lack of connection between the breach and the evidence sought to be excluded. [33] Finally, the Court must consider whether the truth-seeking function of the court would be better served by the admission ofevidence or by its exclusion: see R v Grant 2009 SCC 32 at para 79. In the case at hand, the officer was addressing a public complaint asa resident in the neighbourhood had concerns about illegal activity on her block.

There is a societal interest in truth seeking and havingcriminal allegations adjudicated on their merits in such a situation. A consideration of this aspect would also tend to inclusion. [34] In balancing the factors set out in Grant, the Court is satisfied that the evidence should be admitted. The officers acted ingood faith, their conduct was not intrusive nor did it impact on the bodily integrity of Mr. McGinnis. The s.10 (

b) violation wasmisguided, but the officers made no attempt to obtain any evidence from the accused having made the decision to delay the opportunityto call a lawyer. It is the view of the Court that the admission of evidence under these circumstances would not bring the administrationof justice into disrepute. Accordingly, the evidence of the odour of marihuana and the conversation is admissible. Remedy--Mr. McGonigle [35] Counsel for Mr. McGonigle asks that all evidence seized pursuant to the search warrant be excluded on the basis of Charterviolations.

As indicated earlier in this judgment, the search warrant was not put before the Court and challenged; the only informationbefore the Court is that the evidence seized was obtained through a pre-authorized judicial order. The Ontario Court of Appeal in R vSadikov, 2014 ONCA 72 at para 83 and 84 considered the question of warrant review: Warrant review begins from a premise of presumed validity: Wilson, at para. 63; and R v Campbell, 2010 ONCA 588, 261 CCC (3d) 1,at para 45, aff’d 2011 SCC 32 , 2011 SCC32, [2011] SCR 549.

It follows from this presumption of validity that the onus ofdemonstrating invalidity falls on the party who asserts it. . . The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does notsubstitute his or her view for that of the issuing judge: Garofoli at p. 1452; R v Ebanks, 2009 ONCA 851, 97 OR (3d) 721, at para 20,leave to appeal to SCC refused, [2010] 1 SCR ix; and R v Morelli, 2010 SCC 8, [2010] 1 SCR 253, at para 40.

The standard is whetherthere is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence hasbeen committed and that evidence of the offence would be found at the specified time and place of the search; Morelli, at para 40. Saidin another way, the test is whether there was reliable evidence that might reasonable be believed on the basis of which the warrantcould– not would– have issued: Morelli at para 40; Araujo, at para 54; and Garofoli, at p. 1452. [36] Although the s. 10(

b) rights of Mr. McGinnis were violated by the delay in implementing those rights, it does not provide abasis upon which to strike down the search warrant. Similarly, if the Court is in error with respect to the lawfulness of the arrest of Mr.

McGonigle, it would not provide the grounds to invalidate the search warrant. Mr. McGonigle’s application must fail; the evidenceseized pursuant to the warrant is admissible. VOIR DIRE #2 [37] Constable Taylor testified that he was a member of the Royal Canadian Mounted Police (RCMP) from 2001 to 2005 when hejoined the Saskatoon City Police. While with the RCMP, he was involved in three investigations involving grow operations. As a juniorofficer, he provided security, assisted in seizing evidence and packaging it for evidence.

At the site, marihuana plants in three stageswere located; he also noted discarded stems and leaves, which he was advised were used for producing marihuana resin or hash. In hisinitial years with the Saskatoon Police, he arrested numerous people for simple possession of marihuana in one to five gram amounts andalso provided security in the dismantling of a grow operation. [38] In 2009, he joined the Combined Forces Special Enforcement Unit (CFSEU) which investigated organized crime, includingdrug trafficking. The focus of the unit was

Schedule I drugs such as methamphetamine and cocaine, but it was common to findmarihuana present. After two years, he returned to general patrol duties and then acted as the supervising sergeant for Communicationsand Detention. From there, he joined the Special Investigations Unit from April 2012 to December 2014. His work with SpecialInvestigations involved surveillance of hand to hand sales of methamphetamine and cocaine. [39] Since January 2016, he has been a member of the Saskatoon Integrated Drug Enforcement Street Team which targets drugtraffickers.

He was also called upon to destroy old exhibits and has handled 20-30 pounds of marihuana in joint form and in packagesfrom small baggies to half pound and one pound packages. He has similarly handled “shake”, hash and leafy bud. The officer detailedvarious courses he attended some of which touched on drug investigations although none dealt specifically with cannabis marihuana orresin. Although he has never worked as an undercover officer, he has received information about packaging, street jargon, and pricingfrom other officers.

He has received information from a former drug officer about the method of production for cannabis resin. He hasbeen involved in a wire tap investigation regarding the sale of cocaine and has read transcripts of several drug deal conversations. Hehas been the Affiant in a drug search warrant for fentanyl pills but never for marihuana. [40] In cross-examination, the officer acknowledged that he has no formal training or education with respect to the production orpricing or trafficking in marihuana. Nor has he had any formal education with respect to the production of cannabis resin. Further, hehas not had a direct

part in any investigation focused on marihuana or its derivatives. He has no direct knowledge about the pricing ofmarihuana; his information comes from that compiled by officers in the field and kept in

summary form at the police station. Althoughhe does not follow any scientific or other literature about cannabis, he has read articles and books on marihuana production. He did notelaborate on or particularize the material to which he referred. [41] Counsel for the Crown seeks to tender Constable Thomas Taylor as an expert witness to express opinion evidence in thefollowing areas: (

i) methods of packaging, distribution, production and pricing of cannabis marihuana and cannabis resin; (ii) the general usage and effect and the observable signs of usage patterns of cannabis marihuana and cannabis resin inSaskatchewan; and (iii) the language, street jargon, guarded communications, paraphernalia, and cash connected to the possession, use, production, anddistribution of cannabis marihuana and cannabis resin. [42] The Defence objects to the use of Constable Taylor as an expert witness on the basis that the officer is not sufficientlyqualified to express the opinions sought. [43] The Supreme Court of Canada in R v Mohan, (SCC), [1994] 2 SCR 9, is the leading authority with respect to

the admissibility of expert evidence. In that decision, Justice Sopinka, writing for the Court, sets out four criteria to be evaluated in determining admissibility: (

i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of any exclusionary rule; and (iv) a properly qualified expert. A second stage to the admissibility analysis was introduced in R v Abbey , 2009 ONCA 624 ( Abbey ) and was recently affirmed in White Burgess Langille Inman v Abbott and Haliburton Co , 2015 SCC 23 at para 22-24 incl ( White Burgess ).

At this stage of the analysis, the judge is bound to weigh the probative value against the prejudicial effect of admission and “screen out proposed evidence whose value does not justify the risk of confusion, time and expense that may result from its admission”: see White Burgess at para 16. Throughout the admissibility inquiry, the Court must also consider the impartiality and independence of the proposed witness; see White Burgess at para 32. [ 44 ] In the case at hand, counsel dispute that the officer is adequately qualified, but do not take issue with the other criteria set out in Mohan and Abbey .

It is the duty of the Court to be vigilant in not admitting any expert evidence that is beyond the specific qualifications of the witness tendered.

To determine qualification, the court is entitled to consider the witness’ training, study and/or unique experiences in a particular field. [ 45 ] In R v Dominic , 2016 ABCA 114 , the Alberta Court of Appeal found that an officer who investigated drug crimes but had not had any formal study or education related to drug trafficking was deemed qualified to tender an opinion respecting drug usage and practices: Therefore, evidence gained by a police officer involved in the drug world, even though based in part on dealings with individual addicts, has, subject to the scope and depth of that experience, been accepted as sufficient to qualify the officer as an expert in drug use and how drug users behave, including the rates of consumption: see for example, R v Pham , 2013 ONSC 4903 (Ont SCJ) at paras63-68, . . .

It is not necessary that the police officer conduct a formal study or rely on one to substantiate the experience gained: R v O(N) , 2009 ABCA 7 (Alta CA) at para 22 . [ 46 ] Reliance on experience to demonstrate expertise will be determined on a case by case basis. R v Petavel , 2006 BCSC 1931 ( Petavel ) and R v Baptiste , 2005 BCPC 491 ( Baptiste ) demonstrate the contextual nature of this analysis.

In Baptiste , the British Columbia Provincial Court held that an officer who had “taken short courses given by the R.C.M.P. in which cocaine had been mentioned,” and derived the majority of his experience by being involved in “arrests of persons who are either drug traffickers or drug users” does not constitute expertise sufficient for the purpose of testifying as to the price and weight of cocaine sold in Kelowna or the methods of cocaine consumption.

The expert was permitted to give evidence regarding drug jargon and slang: see paras 4-8 incl. [ 47 ] This reasoning was challenged in Petavel where the court distinguished the expert evidence proffered in Baptiste on the grounds that the R.C.M.P. officer testifying in Petavel had more extensive education and professional training: see paras 10-11.

Furthermore, the court in Petavel , at para 15 , found that any concerns regarding the extent of an officer’s expertise would more properly be dealt with in the weight attributed to it rather than its admissibility: The concerns about the extent of the officer’s experience in training are matters that, in my view, properly go to weight. I am satisfied that Constable Rowe possesses the necessary expertise required and meets the threshold requirement for admissibility of expert opinion evidence.

Conclusion [ 48 ] After carefully weighing and considering the testimony of Constable Taylor and the able oral and written submissions of counsel, the Court has concluded that his evidence can be admitted. The officer has many years experience in policing and has been involved in multiple grow-operation seizures and drug enforcement arrests. This on-the-job experience places him in a position to provide evidence beyond what an ordinary citizen may be capable of comprehending or inferring.

Although Constable Taylor has never attended specialized drug-enforcement training, or worked undercover or been qualified to give expert evidence before, the areas in which he is being asked to express opinions are well within his realm of experience, particularly with respect to areas (ii) and (iii) enunciated by the Crown. [ 49 ] Although his knowledge and experience with respect to methods of packaging, distribution, production and pricing of cannabis marihuana and cannabis resin may not be as robust as one would hope from an expert witness, any shortfalls can be considered in assessing the weight to be attached to his evidence in these areas.

______________________ M.L. Gray J