2012 SKCA 128 Date:, 2012 SKCA 128

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 128 Date: 2012-12-05 Between: Docket: CACR2096 Her Majesty the Queen Appellant - and - Kerry David Walcer Respondent Coram: Lane, Ottenbreit and Herauf JJ.A. Counsel: Wade McBride for the appellant Peter A. Abrametz for the respondent Appeal:

From: Q.B.C.R. No. 38 of 2009 Heard: December 5, 2012 Disposition: Appeal dismissed (orally) Written Reasons: December 20, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Ottenbreit Herauf J.A. [1] The respondent was acquitted after trial of trafficking cocaine, possession for the purpose of trafficking and conspiracy: [2011]S.J. No. 819. The Crown appealed the acquittals. The appeal was dismissed from the bench with written reasons to follow.

These arethose reasons. [2] The theory of the Crown is set out in para. 6 of the trial judgment as follows: Fiddler and Vermette were drug dealers involved in the trafficking of cocaine in and around Prince Albert, Saskatchewan during the timecovered in the indictment. Fiddler needed to obtain some cocaine for resale and contacted the accused who lives in Kamloops, BritishColumbia, to arrange for a cocaine purchase. A series of phone calls between June 1, 2007 and June 7, 2007 result in the accusedadvising Fiddler that the accused has sourced a quantity of cocaine for purchase by Fiddler.

The accused is believed to be anintermediary between an unknown supplier and Mr. Fiddler. On June 14, Vermette travelled to Kamloops where with the assistance ofthe accused, she left $42,000 of cash in a casino washroom and obtained three ounces of cocaine in exchange. The Crown submittedevidence that the $42,000 was for the purchase of a kilogram of cocaine and that the accused obtained the kilogram independent ofVermette’s actions and unknown to her. Vermette took a bus back to Saskatoon, the accused drove his red Tahoe from Kamloops toPrince Albert and delivered a kilogram of cocaine to Fiddler.

Fiddler and the accused left the cocaine at Bert Beaulieu’s property. Thecocaine was never recovered. [3] The case against the respondent was based upon circumstantial evidence.

The prosecutor at trial acknowledged that without theevidence of the expert witness the Crown could not prove the guilt of the respondent beyond a reasonable doubt (transcript, T647). [4] The expert witness was qualified “as an expert in packaging, pricing, value, usage, trafficking and production of cocaine, thelanguage jargon and paraphernalia connected to the possession, use, trafficking and production of cocaine, as well as general usageeffects and the observable signs of cocaine usage as well as usage patterns in Saskatchewan and Western Canada” (trial judgment, para.15). [5] In order to provide an opinion, the expert was provided with a series of intercepted private communications plus a one page“Overview of Investigation”.

The expert admitted in cross-examination that after listening to the calls there was “not a lot of directevidence … to provide an expert opinion” and that it was “very hard” to say that the calls were of a drug related nature (transcript, T569-70). [6] Further on in the cross-examination, the expert advised that he requested additional information from the Crown since there was“nothing blatant, nothing obvious, nothing that stood out … in the calls itself, in that jargon” (transcript, T587). [7] As a result, the Crown provided the expert with an 18-page “Crown Brief”.

The Brief was not disclosed to the defence norprovided as an exhibit for the court’s use. It was only after the expert’s review of the “Crown Brief” that he was able to provide anopinion relating to the intercepted phone calls. [8] Not surprisingly, the trial judge gave little, if any, weight to the expert’s opinion since the “Crown Brief” which provided theassumptions and factual basis for the opinion was not before the court.

The trial judge also found that the one page “Overview ofInvestigation” initially provided to the expert was problematic because of omissions relating to the relationship of the relevant partieswhich could provide another rational inference for the respondent’s activity. [9] Based upon the concession from the Crown that a conviction would require the acceptance by the trial judge of the expertopinion, it is not difficult to understand why the trial judge found the respondent not guilty of the charges. [10] We can see no error in the analysis of the trial judge. The Supreme Court of Canada in R. v.

Abbey, (SCC), [1982]2 S.C.R. 24, made the following comment concerning the evidence of expert witnesses: … While it is not questioned that medical experts are entitled to take into consideration all possible information in forming theiropinions, this in no way removes from the party tendering such evidence the obligation of establishing, through properly admissibleevidence, the factual basis on which such opinions are based.

Before any weight can be given to an expert’s opinion, the facts uponwhich the opinion is based must be found to exist. [emphasis added] [11] The trial judge is entitled to examine the factual foundation of the opinion. If, as in this case, the factual foundation that forms thebasis for the expert’s opinion has not been established, the trial judge has little choice but to accord little, if any, weight to the opinion.

[ 12 ] We also agree that without both the evidence of the “lay” witnesses and the expert, the Crown could not prove its case beyond a reasonable doubt. [ 13 ] For these reasons, we dismissed the Crown appeal from the acquittals of the respondent.