R v Kamyar, 2023 MBPC 28

CITATION: R v Kamyar, 2023 MBPC 28 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: His Majesty the King ) K. Henley ) for the Crown ) and ) ) ) Irfan Kamyar ) J. Pinx ) for the Accused Accused ) ) ) Reasons for Decision: ) Delivered: June 22, 2023 DEVINE, P.J. INTRODUCTION [1] Mr. Kamyar pleaded guilty to possessing fentanyl for the purpose of trafficking. The Crown argued that he was operating at ahigh level of trafficking fentanyl. The defence disputes this and argued that he was operating at the mid level. The threshold issue at thesentencing hearing is the level at which Mr.

Kamyar was operating within the drug trafficking operation. We entered into a Gardiner (Rv Gardiner, (SCC), [1982] 2 SCR 368) hearing, during which the Crown called evidence in an effort to prove beyond areasonable doubt that he was operating at a high level. [2] I am not satisfied beyond a reasonable doubt that he was a high-level drug trafficker for the reasons that follow. FACTS [3] Police started an investigation into Mr. Kamyar’s dealings as a suspected fentanyl trafficker in Winnipeg.

They witnessedseveral hand-to-hand transactions out of his vehicle, obtained a warrant to search his apartment, and on November 21, 2020 arrested Mr.Kamyar in his vehicle and executed the search warrant in his apartment. [4] There is no question that Mr. Kamyar was living or staying at the apartment; it contained clothing and other indications ofregular habitation such as laundry in a laundry basket and in the washing machine, toiletries in the bathroom, food in the kitchen, and Mr.Kamyar’s driver’s licence and a Provincial Offence Notice for his vehicle. [5] At the time of his arrest, Mr.

Kamyar had fentanyl and methamphetamine on his person and cocaine in the vehicle as follows: 3 grams of fentanyl in a small baggie tied in a knot, 3.38 grams of crack cocaine in a small baggie knotted at the top, and 27.98 grams(the equivalent of approximately one ounce) of methamphetamine in a small, plastic baggie tied in a knot on the driver’s seat. He alsohad two phones (an LG and an iPhone) in the vehicle with him. [6] There were large quantities of drugs found in the bedroom and kitchen of Mr.

Kamyar’s apartment: almost a half-kilogram offentanyl (426.97 grams), nearly five-and-one-half kilograms of methamphetamine (5,412.4 grams), just over 72 grams of powderedcocaine (72.09 grams) and 62.73 grams of crack cocaine. There was also well over a half-kilogram of a cutting agent phenacetin (631.56grams). [7] There were three working scales contaminated by fentanyl, cocaine, methamphetamine, and the cutting agents: phenacetin,etizolam and caffeine.

[8] There was a blender contaminated with cocaine and phenacetin. [9] There were four Solo cups with residue of the same drugs and same mixing agents, the cups being used to adulterate or mixproduct.

One of the cups also contained contaminate with lidocaine and one contained levamisole (or its salts). [10] A package of prepaid call cards was found in a small, carry-on suitcase. [11] There was a score sheet found in the bedroom dresser drawer. [12] There was over $13,000 of Canadian currency in the bedroom, in five bundles: $1,060, $1,270, $2,930, $4,150 and $4,010. [13] The five-and-one-half kilograms of methamphetamine was contained in six Ziploc freezer bags with the exact gram amountwritten on the bags in black felt marker: 996.8 grams, 998 grams, 997.5 grams, 997.6 grams, 999.6 grams and 999.5 grams, allapproximating one kilogram.

Three of the bags contained significantly less than that, indicating that some of the methamphetamine hadbeen sold. [14] The size of the clear plastic bags were Ziploc freezer bags and sandwich bags; there were no small baggies or “dime bags”. [15] There was a black garbage bag containing empty, used Ziploc freezer bags found in the bedroom, with approximate one-kilogram amounts written on the bags, such as “1,004”, “992”, and “998.5”. More empty bags were found in the kitchen, contaminatedwith cocaine, fentanyl, methamphetamine and phenacetin.

There were freezer bags and sandwich bags consistent with selling at the midlevel. Although the freezer bags could also be evidence of sales at the kilo level, there was no evidence of any bulk sales. [16] There was a money counter on the nightstand. [17] In addition to the LG phone and iPhone found in the vehicle with the accused, there was a Blackberry found in the apartment. None of the devices were analyzed for any communication.

There was no evidence that the Blackberry had “pgp”, used for encryption,on it [18] There was what appears to be a luxury watch on the mantle in the living room. [19] There was no drug-use paraphernalia found, nor any street-level packaging materials. [20] There was no surveillance, no confidential informants and no text messages or intercepted communications, nor were there any“buys” conducted by undercover police officers in this case. [21] The only record of drug trafficking, usually referred to as a “score sheet”, was a single piece of paper with the writing “zips”and “half-zips”, which is slang for ounces and half ounces.

There was no record of any purchase of any drug at the half or full kilogramlevel. [22] Sergeant Jeff Hunter was qualified as an expert to provide opinion evidence about fentanyl and other drugs, drug traffickingand the drug trafficking hierarchy, including the role of suppliers, middle men, couriers, stash-house keepers and street traffickers. [23] He testified that the sale of “zips and half-zips” would be consistent with street-level to mid-level trafficking. [24] Sergeant Hunter was unable to ascertain how long the drugs had been in Mr.

Kamyar’s home, where they were purchased orobtained from, or who originally purchased the drugs. In short, there was no evidence as to the source of the drugs and who purchasedthem. [25] He testified that the amount of fentanyl and methamphetamine seized is consistent with someone operating at a high level –someone who is insulated enough and has sufficient funds to purchase drugs at the kilogram level. [26] There was no evidence of Mr.

Kamyar selling fentanyl or any substance at the kilogram or half kilogram level; it appears hewas purchasing or obtaining amounts at the kilogram level and then breaking it down for sales in what would be considered mid-levelamounts. [27] Sergeant Hunter described Mr. Kamyar as an “atypical, multi-substance trafficker operating at a high level”.

THE CATEGORIZATION OF DRUG TRAFFICKERS [28] In assessing proportionality for a drug trafficking sentence, it is important to consider the “magnitude of the individual’sparticipation” (R v McLean, 2022 MBCA 60 at para 61, citing Regina v Lecapoy (1974), 1974 ALTASCAD 50 , 18 CCC (2d)496 at 500 (Alta SC (AD)). In Manitoba, it is the practise of the courts to determine the “level” of trafficking in

Schedule I substances atwhich the drug trafficker is operating, following the direction of the Court of Appeal in R v Rocha, 2009 MBCA 26, that is, street-level,mid-level or high-level. [29] As will be seen, that approach can be constraining and lead to perplexing evidence. The expert witness in this case, opiningthat the accused is a “high-level” drug trafficker, had to add the qualifier “atypical” to the moniker, because most of the indicia otherwisepoint to him being a mid-level drug trafficker. [30] As indicated, the Crown called Sergeant Hunter to provide an expert opinion about the level at which Mr. Kamyar wasoperating. THE ADMISSIBILITY OF EXPERT EVIDENCE

[31] As a general rule, witnesses are not permitted to testify about their opinions. The trier of fact draws inferences and comes todecisions based on the factual observations and other types of evidence that witnesses provide in court. The general prohibitionconcerning opinion evidence rests on that type of evidence’s unreliability and irrelevance. Expert opinion evidence is an exception to thegeneral prohibition against opinion evidence.

Justice Doherty explained the general rule and exception to the rule most cogently in R vAbbey, 2009 ONCA 624 [Abbey 2009] (at para 71): It is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using thatevidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from theirown work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference thatshould be drawn from that material.

The trier of fact must then decide whether to accept or reject the expert's opinion as to theappropriate factual inference. [32] As a subset of opinion evidence, expert opinion evidence is still presumptively inadmissible. It must meet threshold standardsto be admitted and is subject to rigorous consideration throughout. Justice Doherty continued in that same paragraph in Abbey 2009: Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently,expert opinion evidence is presumptively inadmissible.

The party tendering the evidence must establish its admissibility on the balanceof probabilities: Paciocco and Stuesser, at pp. 184, 193; Hon. Jus. S. Casey Hill, David M. Tanovich and Louis P.

Strezos, McWilliams'Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2009), at para. 12:30.10. [33] The governing principles and tests for the admission of expert opinion evidence are set out in R v Mohan, (SCC), [1994] 2 SCR 9; Abbey 2009; R v Abbey, 2017 ONCA 640 [Abbey 2017]; and White Burgess Langille Inman v Abbott andHaliburton Co, 2015 SCC 23 [White Burgess], which is the most recent treatment of expert opinion evidence by the Supreme Court ofCanada. [34] Significant developments in the law with respect to expert opinion evidence have occurred since the mid 1990s.

Before thattime, the threshold for admissibility of expert opinion evidence was understood as being very low, with the preponderance of theanalysis being left to a determination of how much weight it should be given. [35] The tightening of the admissibility requirements followed several cases of wrongful convictions and miscarriages of justicewhere judges and juries relied on flawed scientific evidence and unreliable expert evidence (The Honourable Stephen T. Goudge(Commissioner), Inquiry into Pediatric Forensic Pathology in Ontario (“The Goudge Report”) (2008), Vol. p. 47).

Therefore, thethreshold for admissibility of expert opinion evidence is higher and the evidence remains under scrutiny throughout the hearing. [36] Consideration of the proposed evidence can be roughly broken into two stages.

At the first or threshold stage, the proponent ofthe evidence must satisfy the Court on a balance of probabilities that the evidence is relevant, necessary, would not be subject to anyother exclusionary rule of evidence, and will be tendered by a properly qualified expert. [38] If the evidence meets the threshold tests, the expert may testify, but the Court continues to play a gatekeeping function todetermine admissibility: the Court continues throughout, to determine the probative versus prejudicial value of the evidence, continuingto assess whether particular portions of the expert’s evidence are relevant, necessary, otherwise excluded, and whether the expert istestifying within the scope, purpose and parameters that were allowed and delineated at the threshold stage of analysis.

THE EXPERT EVIDENCE IN THIS CASE [39] In this case, the first stage of determining threshold admissibility was perfunctory. The Crown and defence included the areasthey agreed Sergeant Hunter could be qualified to testify in an Agreed Statement of Facts: That Sgt. Jeff Hunter is qualified to provide an expert opinion on the trafficking of cocaine, crack cocaine, methamphetamine, andfentanyl generally, as well as: (

a) The components of the drug trade, drug paraphernalia, packaging, and scales; (

b) The role of cash in the trafficking of cocaine, crack cocaine, methamphetamine, and fentanyl; (

c) The use of scoresheets and money counters in the drug trade; (

d) The role of cell phones in the drug trade; (

e) Anti-detection techniques and risk mitigation employed by drug traffickers; (

f) Common quantities of cocaine, crack cocaine, methamphetamine, and fentanyl for sale at the street, mid and high level; (

g) The cost of cocaine, crack cocaine, methamphetamine, and fentanyl at the street, mid and high level as well as the potential profitsof sale at those levels; (

h) Methods of drug distribution; (

i) The drug trafficking hierarchy, including the role of suppliers, middle men, couriers, stash-house keepers, and street traffickers; and (

j) Interpretation of jargon, lingo and coded language used by drug traffickers, specifically as it relates to cocaine, crack cocaine,

methamphetamine, and fentanyl. [40] This agreement, and Sergeant Hunter’s testimony that he understood his duty to the court to provide unbiased evidence, satisfied me of the threshold reliability of his expert opinion evidence. [41] The second stage, or gatekeeping stage continues throughout the voir dire . [42] The defence challenged the opinion evidence of Sergeant Hunter on the basis that it was biased, specifically that it constituted confirmation bias. Although Sergeant Hunter is a police officer employed by the Winnipeg Police Service, he was not involved in this case.

He has been qualified to provide expert opinion evidence 20 to 30 times in Manitoba courts. He has always been asked to testify by the Crown, not by defence. [43] Sergeant Hunter testified that a mid-level dealer would not typically purchase drugs at the kilogram level, but rather at the multi-ounce level, up to nine ounces.

He agreed however that it was possible for a mid-level dealer to purchase drugs at the kilogram level and then break them down to the ounce level for further distribution. [44] In his report, which was not filed with the court, but he was cross-examined on it, Sergeant Hunter wrote that mid-level dealers sell drugs at the ounce or multi-ounce quantities and “ could be expected to have drugs in bulk weights because they purchase the drugs from higher level dealers, that is, at the kilo or multi-kilo level” (emphasis added). Typically, they have access to importation and are well-insulated from law-enforcement.

Typically, they use stash houses that they do not live in, again, to insulate themselves. Typically, this would be indicative of a mid-level dealer, who would have larger quantities of drugs in his home for cutting, packaging and selling at the mid or street level. [45] There was no evidence of any kilogram-level or bulk sales in this case. [46] At the high level of drug trafficking, drugs are usually in Ziploc bags and then vacuum-sealed.

There was no evidence of a vacuum sealer or vacuum-sealed bags in this case. [47] There was no evidence of surveillance, information from informants, undercover officers, nor any evidence of any sales at the kilo level. [48] Sergeant Hunter described this case as “atypical” because he believed Mr. Kamyar to be a high-level purchaser of bulk drugs selling at the street level, to cut out the “middle-men” to maximize profitability. [49] Sergeant Hunter testified that the other reason he was of the opinion that Mr.

Kamyar was a high-level trafficker was because it was so difficult to obtain large quantities of drugs during the first year of the COVID-19 pandemic, when mass vaccination had not yet occurred and when travel was extremely restricted. The inference he relied on is that Mr. Kamyar had to have the connections and money to be able to obtain that quantity of drugs at that time. He testified that at the time, the almost half-kilogram of fentanyl would be consistent with Mr.

Kamyar being a high-level dealer, because it was very difficult to obtain any larger amounts in Winnipeg during the early part of the pandemic. [50] The only indications of sales were in amounts at the mid level, that is, the “zip” and “half-zip” amounts indicated on the score sheets and the street level trafficking amounts found incident to Mr. Kamyar’s arrest. Sergeant Hunter did not include in his report the small amount of drugs that were on Mr.

Kamyar’s person and in his vehicle when he was arrested, only the large amounts found in the apartment. [51] The definition for mid-level dealers is as follows in his report: . . . mid-level dealers are within the mid-range of the hierarchy and deal typically in bulk amounts, for example in methamphetamine in the ounce to multi-ounce range. . . drugs are typically packaged in bulk weights which are obtained from higher level dealers. When he was challenged to explain how he could call Mr.

Kamyar a “high-level” dealer when the definition of mid-level applied to him, Sergeant Hunter testified that this was not a “typical” case. [52] The definition that Sergeant Hunter used in his report to describe “high-level dealers” is as follows: High level dealers are at the top of the hierarchy and are typically most trusted within the criminal organization and have connections to other high level traffickers.

High level dealers typically deal with large amounts of illicit drugs, for example, kilogram to multi- kilograms of methamphetamine and have access to these amounts to be obtained from either source countries and trafficked provincially or inter-provincially. High level dealers will typically be well-insulated in order to prevent law enforcement action. [53] I have other concerns. Sergeant Hunter’s testimony and opinion focussed on only some of the findings of drugs, packaging and so on. For example, he did not include in his expert report the small amount of drugs found in the vehicle with Mr.

Kamyar, which would typically be consistent with street-level trafficking, not high-level trafficking. [54] There was no evidence of undercover purchasing, no wiretap evidence, no surveillance evidence, no evidence of dead drops, no stash houses, no evidence of Mr. Kamyar insulating himself, no evidence of any other people involved in the drug trafficking operation and where he fit in that hierarchy, nor any evidence of where and from whom Mr.

Kamyar purchased the drugs that were found in his apartment. [55] There is no evidence of kilogram-level sales, only evidence to the contrary. [56] The only evidence of sales are two notations on a scrap of paper indicating ounce and half-ounce purchases.

[57] The foundation for Sergeant Hunter’s opinion is not solid. The

definitions he used in his report would place Mr. Kamyar as a mid-level dealer. To call Mr. Kamyar an “atypical” high-level dealer because he does not meet the accepted definition of high-level dealer demonstrates the constraints of the drug trafficking hierarchy that is used in Manitoba. [58] In considering all the evidence in this case, I cannot rely on Sergeant Hunter’s ultimate opinion that Mr. Kamyar was operating as a high-level drug trafficker. I do rely on his evidence as agreed to by counsel about: . . . the trafficking of cocaine, crack cocaine, methamphetamine, and fentanyl generally, as well as: (

a) The components of the drug trade, drug paraphernalia, packaging, and scales; (

b) The role of cash in the trafficking of cocaine, crack cocaine, methamphetamine, and fentanyl; (

c) The use of scoresheets and money counters in the drug trade; (

d) The role of cell phones in the drug trade; (

e) Anti-detection techniques and risk mitigation employed by drug traffickers; (

f) Common quantities of cocaine, crack cocaine, methamphetamine, and fentanyl for sale at the street, mid and high level; (

g) The cost of cocaine, crack cocaine, methamphetamine, and fentanyl at the street, mid and high level as well as the potential profits of sale at those levels; (

h) Methods of drug distribution; (

i) The drug trafficking hierarchy, including the role of suppliers, middle men, couriers, stash-house keepers, and street traffickers; and (

j) Interpretation of jargon, lingo and coded language used by drug traffickers, specifically as it relates to cocaine, crack cocaine, methamphetamine, and fentanyl. [59] I agree with defence counsel that if we are to distill all the evidence of Sergeant Hunter, his theory appears to be that buying drugs from a high-level dealer at the kilogram or multi-kilogram level (or a half-kilogram of fentanyl during the COVID pandemic) makes a person another high-level dealer. However, this upsets the hierarchy relied on by the courts in this province. To call it Mr.

Kamyar “atypical” is not useful; the evidence points to Mr. Kamyar being a mid-level dealer, albeit very high within that category. Only by re-characterizing him as “atypical” could the expert call him a high-level dealer. THE LEVEL AT WHICH THE ACCUSED WAS DEALING [60] There was no evidence of any drug-trafficking operation in this case, and the amount of control or power Mr. Kamyar had within the operation.

This can be contrasted with R v Bisson , 2018 MBCA 92 , where the issue was whether the accused was a high-level or mid-level trafficker. [61] As Justice Pfuetzner stated for the court in Bisson , the determination of the level at which an accused is operating, in order to assess moral culpability, is an exercise involving consideration of many factors (at para 6): The categorisation of drug traffickers as street-level, mid-level or high-level dealers and the application of the corresponding sentence ranges are useful tools to help assess the moral culpability of an offender in arriving at a fit sentence.

However, the determination of the appropriate category is not a scientific exercise; it involves the weighing of many factors. There is no bright line dividing mid-level traffickers from high-level traffickers, nor is any one factor determinative.

The categories lie on a continuum and, depending on the particular circumstances, an offender could fall somewhere near the intersection of two categories . (Emphasis added.) [62] The Crown relied heavily on the statement in Bisson that the trial judge erred in his determination that the accused was not a high-level trafficker because he was not selling cocaine at the multi-kilogram level, but rather was purchasing multi-kilograms of cocaine every six to eight weeks and selling at the multi-ounce level to customers. [63] That was not the only evidence of high-level sales and trafficking in Bisson however.

There was also surveillance evidence that he had previously made kilogram-level sales, the cumulative amount of drugs sold in multi-ounces was “not inconsistent with” high- level trafficking, he was purchasing multi-kilogram amounts every six to eight weeks, and there was extensive evidence including transcripts of intercepted communications and text messages. [64] The key distinction however, is the fact that there was evidence of multi-kilogram sales. This distinction alone distinguishes Bisson . [65] In this case, there is no evidence of multi-kilogram sales.

The nature and circumstances of the packaging is inconsistent with Mr. Kamyar selling at the kilogram level. If he was selling drugs in kilograms, he would not have had empty kilogram bags in his apartment. They would be gone. The amount of cash found in the apartment is also inconsistent with Mr. Kamyar selling fentanyl at the kilogram or multi-kilogram level: it would have cost $25,000 at that time. [66] There is no evidence of any communication with any buyers, sellers or others in the drug trafficking operation. There is no evidence of how often drugs were purchased. There is no evidence that Mr.

Kamyar purchased the drugs, or whether he was directed to

do so by someone else. [67] I am not satisfied beyond a reasonable doubt that Mr. Kamyar is a high-level drug trafficker. [68] I am satisfied that he was operating at the high end of mid-level dealing, given the large quantities of drugs, the cutting materials and evidence of adulterating the drugs, that is, the large bag of phenacetin, the blender, Solo cups and three weigh scales. Original signed by Judge Devine DEVINE, P.J.