R v Chung, 2018 SKCA 70

Court of Appeal for Saskatchewan Docket: CACR2765 Citation: R v Chung , 2018 SKCA 70 Date: 2018-08-28 Between: Her Majesty the Queen Appellant And Cory Omar Chung Respondent Before: Ottenbreit, Herauf and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Whitmore On Appeal From: Provincial Court, Regina Appeal Heard: April 4, 2018 Counsel: Wade McBride for the Appellant Andrew Hitchcock for the Respondent Herauf J.A. I.

Introduction [ 1 ] The Crown appeals the acquittal of Cory Omar Chung on a charge of possession of cocaine for the purpose of trafficking. Mr. Chung was convicted of simple possession. [ 2 ] The Crown had presented a drug expert to offer an opinion about the significance of various circumstantial factors which, when considered globally, could provide the trial judge with a “ready-made inference” ( R v Abbey , 2017 ONCA 640 , 350 CCC (3d) 102) about Mr.

Chung’s intention or purpose for possessing cocaine. [ 3 ] The trial judge refused to accept the expert’s opinion regarding maximum usage rates and physiological effects. This factor, combined with the lack of other indicators of trafficking, led the trial judge to conclude that Mr. Chung was not guilty of possession for the purpose of trafficking cocaine. [ 4 ] I would dismiss the appeal for the reasons set out below. I can find no error with the decision of the trial judge in her gatekeeper role as it relates to the admission and use of expert evidence. II.

Background [ 5 ] On July 22, 2014, the Regina Police Service (RPS) was conducting surveillance on the respondent, Mr. Chung, in relation to a robbery for which he was a suspect. At approximately 3:00 p.m., Constable Hooker, one of the plainclothes officers conducting surveillance, determined that Mr. Chung was a passenger in a Chevy Equinox leaving a residence he was thought to frequent. A uniformed officer in a marked vehicle was called to conduct a traffic stop so that Mr. Chung could be arrested. [ 6 ] Constable Fox of the Canine Unit conducted the traffic stop.

Constable Hooker approached the vehicle and informed Mr. Chung that he was under arrest for robbery and was asked to step out of the vehicle. Because Constable Hooker was in plainclothes, he did not have handcuffs on his person and instead asked to use Constable Fox’s handcuffs to carry out the arrest. In this period of time, Mr. Chung briefly escaped from Constable Hooker’s control. He was able to run approximately ten feet away before being brought under control by Sergeant Thompson, another officer attending at the scene. [ 7 ] A team of officers carried out the arrest after stopping Mr. Chung.

The evidence was unclear as to which officer had actually handcuffed Mr. Chung. Constable Lawrence testified that he read Mr. Chung his rights and warnings. Constable Lawrence also testified that he would have been the officer who conducted a search of Mr. Chung, although he could not specifically remember searching Mr. Chung. However, Constable Lawrence testified that his standard practice would be to do a pat-down search over top of clothing in order to locate anything that could be used as a weapon. During this search, nothing of interest was found. [ 8 ] Once Mr.

Chung was handcuffed, he was seated partially inside one of the marked vehicles at the scene. This was a transitory resting place for Mr. Chung while officers waited for the arrival of a different police vehicle to transport him to detention. Because of his earlier attempt to avoid arrest, a vehicle equipped with a “silent partner” was deemed necessary for officer safety during the transport. A silent partner creates an entirely contained space in the back of patrol vehicles. [ 9 ] Constable Ash arrived in a vehicle equipped with a silent partner. Constable Ash testified that upon his arrival he took Mr.

Chung back to his own patrol car and did a “quick pat-down search for any weapons”. During this search, Constable Ash did not find

anything of interest. [ 10 ] After Mr. Chung was turned over to Constable Ash for transport, the Chevy Equinox was searched incident to arrest by Constable Hooker and Constable Lawrence. Constable Lawrence found three cellphones. Each cellphone was plugged into a charger and sitting on the front passenger seat. The phones were seized as evidence. [ 11 ] The drive from where Mr. Chung was arrested to the detention centre took only a few minutes. Constable Ash testified that Mr. Chung was “fidgety, restless, pushing himself off the seat” for the duration of the drive.

On arrival at the cells area, when Constable Ash opened the back door of the patrol vehicle and asked Mr. Chung to exit the vehicle, he noted a bag containing white powder. The bag was in plain view on the floor of the vehicle where Mr. Chung’s feet had been. Constable Ash seized the bag because he believed it to contain cocaine. Mr. Chung was then booked in and transferred to Constable Hooker in order to make a phone call to his lawyer. [ 12 ] The bag was described as a plastic vacuum sealed bag with another smaller bag inside of it, with duct tape holding it closed.

The cocaine-like substance was inside the smaller bag. The substance was later analyzed and determined to be cocaine. The weight of the cocaine was 56.68 grams. [ 13 ] Constable Ash had started his shift at 6:30 a.m. and seized the cocaine from the back of his vehicle at approximately 3:37 p.m. He testified that he had done an interior and exterior search of his patrol vehicle at the beginning of his shift. This included looking in the silent partner compartment. He did not find anything during this search. He further testified that he had not transported any other individuals that day.

His vehicle was not left unattended except during his lunch break, when it was locked in the police compound. The only people with access to the keys to the vehicle were Constable Ash and the garage crew, which has emergency keys for all patrol vehicles. III. Standard of Review [ 14 ] The standard of review for a Crown appeal from acquittal is stringent. In addition to showing an error of law, the Crown must show that the error might reasonably be thought to have a material bearing on an acquittal.

The burden is a heavy one and must be demonstrated with a reasonable degree of certainty (see R v Graveline , 2006 SCC 16 , [2006] 1 SCR 609 at paras 14–16 ). [ 15 ] In R v George , 2017 SCC 38 , [2017] 1 SCR 1021, the Supreme Court of Canada further addressed the standard of review on Crown appeals from acquittals.

It noted at paragraph 24 the “no legal error results from mere disagreements over factual inferences or the weight of evidence”. [ 16 ] In R v Dominic , 2016 ABCA 114 , 335 CCC (3d) 178, the Alberta Court of Appeal addressed the standard of review when the issue is the admissibility of expert evidence: [ 17 ] The admissibility of expert evidence is a question of law reviewable for correctness insofar as the proper articulation and application of the legal test is concerned: R v Underwood , 2008 ABCA 263 at para 10 , 433 AR 298.

However, absent an error in principle, appellate courts generally owe deference to decisions of trial judges to admit or reject expert evidence: R v DD , 2000 SCC 43 at paras 12-13 , [2000] 2 SCR 275. This is particularly so given that the cost-benefit analysis inherent in the gatekeeper inquiry involves judicial discretion rather than the application of a bright-line rule. ... IV. Expert Evidence [17] The Crown tendered Constable Krieger as an expert witness and asked the court to qualify him to give evidence in three areas: (

i) the methods of packaging, distribution and pricing of cocaine; (ii) the value, usage and trafficking of cocaine; and (iii) the general usage and effects and the observable signs of cocaine. Defence took issue with the third area of expertise, arguing that developing an opinion on general usage and effects would require a scientific approach and academic training. A. Qualifications [ 18 ] Constable Krieger, at the time of testifying, had twelve years of experience with the RPS. He was serving his third year of a five-year posting with the Regina Integrated Drug Enforcement Street Team.

In that position, he dealt primarily with street-level drug investigations for two years before moving to organized crime and national security files in his third year. This case was the first at which Constable Krieger was called to testify as an expert, however, he had previously prepared expert opinions. [ 19 ] Constable Krieger explained that much of his opinion was based on his job experience, which included doing investigations, talking to informants, and speaking to witnesses.

He testified that he had been involved with at least 63 different files where cocaine was seized and would commonly ask confidential police informants, witnesses, or others he interacted with about their drug use and the overall drug trade. These conversations helped him to develop an opinion about the general usage patterns and prices of drugs in Regina. [ 20 ] He described the various drug-related training courses he had attended. In total, Constable Krieger had attended approximately 60–70 days of instruction, not counting his time at the Saskatchewan Police College.

Not all of that instruction focused on drug investigations or specifically related to cocaine. [ 21 ] Constable Krieger also testified about courses that he instructed and presentations he provided on the topic of drugs. For the most part, he was selected for these roles because he had volunteered for them. However, he was specifically asked to be one of the main lecturers for the Drug Investigation Course at the Police College in April 2015.

[22] Constable Krieger did not have any scientific background or education, or medical expertise. B. Constable Krieger’s opinion [23] Constable Krieger concluded, both in his report and in his testimony, that the cocaine found in the back of Constable Ash’spatrol vehicle was possessed by Mr. Chung for the purpose of trafficking. Constable Krieger wrote his report on the basis of the accountsof officers who had been present at the scene. He testified that his opinion had not been changed by hearing the evidence at trial. [24] Constable Krieger was heavily swayed by the quantity of the cocaine and its value.

Constable Krieger testified that he hadnever seen a cocaine user have two ounces of cocaine at one time just for personal use. He testified that, in his opinion, two ounces ofcocaine would last a heavy user anywhere from 16–56 days and would be worth a minimum of $3,000. [25] Constable Krieger developed this time frame based on his opinion that the maximum amount of cocaine a heavy user couldutilize in a day would be 3.5 grams.

He testified that this number stemmed from the training courses he had taken and because he hadbeen told by many drug users and traffickers that 3.5 grams was the amount they could use in a day or the amount that was generallyaccepted as the most common high-end figure. [26] Constable Krieger acknowledged that some people had reported higher figures to him, but he did not believe them to beaccurate. In his opinion, the rarity of reported usage above 3.5 grams made it less likely to be true. He also had been told by other usersthat anyone claiming to use more than 3.5 grams was exaggerating.

For these reasons, Constable Krieger chose not to factor in anyextremes he had been told about by users when developing his maximum daily usage opinion. [27] Constable Krieger also testified that there is a wide variety of types of cocaine users and in his role as a police officer he hadnot interacted with all of them. Rather, his experience came from individuals involved in the drug culture.

When asked, ConstableKrieger said that regardless of the personal circumstances of the individual, if they had two ounces of cocaine, he would assume theindividual was an addict and a trafficker. [28] Constable Krieger testified that a mere user of cocaine, rather than someone possessing cocaine for the purpose of trafficking,would not have two ounces at any given time. His explanations for this opinion included: (

i) that most cocaine users did not have thefinancial ability to purchase that quantity of cocaine at one time; (ii) that having such a substantial amount would cause increased risk ofbeing robbed; (iii) that users were aware of the increased criminal sanctions given to traffickers; and (iv) that there was no need for usersto stock up in advance because cocaine was readily available in the city.

Despite all of this, Constable Krieger conceded it was possiblesomeone could have purchased two ounces of cocaine for personal use. [29] Constable Krieger testified that apart from the quantity of the cocaine, the other typical signs of trafficking were absent. Noscales or score sheets were found and the cocaine was not packaged for resale. Mr. Chung had no weapons and no cash in his possessionat the time of arrest. Having multiple cellphones may be an indication of trafficking, but in this case there were two individuals in thevehicle and no evidence to determine who the cellphones belonged to.

Constable Krieger testified that his opinion was based on thequantity of cocaine found and that the phones merely added to his suspicion after he had already formed his opinion. V. issue [30] This is a one-issue appeal. The Crown alleges that the trial judge erred in exercising her function as gatekeeper of the opinionevidence by excluding the expert’s conclusion as to maximum daily usage of cocaine. VI. analysis A. The admissibility of expert evidence [31] In general, opinion evidence is inadmissible.

Canadian courts have therefore crafted criteria for a trier of law to apply indeciding whether or not to admit opinions into evidence. In White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23,[2015] 2 SCR 182 [White Burgess], the Supreme Court re-characterized the test for the admissibility of expert evidence. In doing so, itlargely incorporated the approach taken by the Ontario Court of Appeal in R v Abbey, 2009 ONCA 624, 97 OR (3d) 330.

Essentially, thenew admissibility analysis has two steps: the “threshold” requirements of admissibility, followed by the “discretionary gatekeeping step”(White Burgess at paras 23–24). [32] White Burgess confirms that the threshold requirements for admissibility are the four Mohan factors (R v Mohan, (SCC), [1994] 2 SCR 9 [Mohan]), which are: (

a) relevance (which, at this stage, means logical relevance); (

b) necessity in assisting the trier of fact; (

c) absence of exclusionary rule; and (

d) a properly qualified expert. In the case of the “novel or contested science, or science used for novel purpose” a fifth factor is added:

(

e) the reliability of the underlying science for that purpose. [ 33 ] The second step is the discretionary gatekeeping step where the trial judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. Factors to be considered at this stage include: (

a) relevance, necessity, and absence of bias; (

b) time consumption, prejudice and confusion; and (

c) the benefits and harms to the trial process. [ 34 ] The current approach is a response in part to the reality that many wrongful convictions have arisen from improper and unreliable expert evidence. Justice Cromwell notes in White Burgess that, 20 years after Mohan , “the unmistakable overall trend ... has been to tighten the admissibility requirements and enhance the judge’s gatekeeping role”. [ 35 ] The primary issue in this appeal is the reliability of the expert’s assessment on maximum daily usage of cocaine.

By logical necessity, the “average” or “typical” use range that the Crown sought to admit into evidence would be less reliable and have less weight without the maximum daily usage evidence. B. Voir dire [ 36 ] The trial judge accepted Constable Krieger as an expert as tendered by the Crown except for the third area regarding usage and effects of cocaine. The trial judge applied the Mohan criteria to Constable Krieger’s evidence. She found that his evidence regarding physiological effects and maximum usage rates did not meet the criteria. She also excluded his ultimate conclusion about whether Mr.

Chung had possessed the cocaine for the purpose of trafficking. [ 37 ] The trial judge determined that Constable Krieger did not have the necessary expertise to provide expert evidence on the physiological effects of cocaine. However, Constable Krieger was qualified to provide evidence on the observable signs of cocaine use. [ 38 ] The physiological effects evidence was legally relevant and necessary, but it failed on the fourth criterion because Constable Krieger simply lacked the necessary expertise to testify on the subject.

While he had a great deal of experience and training on cocaine and observable responses to it, he lacked the medical or otherwise specialized training to reliably testify about physiological effects. The trial judge did not err by rejecting the evidence on physiological effects. She was correct to find it did not meet even the threshold requirement for admissibility since Constable Krieger was not a properly qualified expert. [ 39 ] The trial judge found Constable Krieger to be qualified to provide expert evidence about the methods by which cocaine is used.

However, when considering usage rates and patterns, the trial judge had concerns about Constable Krieger’s expertise. Any evidence from Constable Krieger regarding the maximum amount a cocaine user could use in a day was rejected, but the trial judge did accept evidence about general average usage rates. [ 40 ] The trial judge rejected the maximum usage evidence based upon the knowledge component of the fourth criterion. She took issue with the reliability of Constable Krieger’s technique in coming to his opinion on maximum usage for several reasons.

Constable Krieger’s opinion on usage rates came primarily from what cocaine users had told him. The trial judge acknowledged that the evidence should not necessarily be excluded solely because of its anecdotal nature, but instead that this might affect its weight. Nonetheless, the evidence regarding maximum usage was excluded because, in addition to being anecdotal, there were no means for the court to determine the accuracy or reliability of the information.

There was no suggestion that Constable Krieger had tracked the information or had taken steps to verify the information given to him by confidential informants, witnesses, or other contacts. It was unclear whether Constable Krieger had considered the possibility that informants, etc., had been incorrect or untruthful when speaking to him or that it had factored that into his final conclusion. As well, Constable Krieger acknowledged that his information was likely not representative of the broad population of cocaine users.

Constable Krieger admitted to rejecting any usage rate above 3.5 grams per day as exaggerations. All of this combined led the trial judge to conclude that Constable Krieger could not provide a reliable and unbiased maximum daily usage rate for cocaine. In fact, the trial judge went so far as to describe the evidence of Constable Krieger relating to maximum usage as “deeply troubling”. Therefore, his evidence on this subject did not meet the Mohan criteria and could not be given any weight.

In my view, the trial judge did not err as she had multiple legitimate reasons to arrive at this conclusion. [ 41 ] In addition, the trial judge performed her role as gatekeeper as required by White Burgess . She clearly put her mind to the cost-benefit analysis described in R v Sekhon , 2014 SCC 15 , [2014] 1 SCR 272 [ Sekhon ]. She held that Constable Krieger’s evidence with regard to maximum usage rates did not meet the cost-benefit analysis. The faults in his process reduced the reliability of the evidence. If given weight, the evidence would have been a very strong indication of intention to traffic.

However, in her view, the probative value was too low to outweigh the prejudicial effect. The trial judge did not err in fulfilling her role as gatekeeper. [ 42 ] As well, quoting from Sekhon , the trial judge struck Constable Krieger’s final conclusions as to whether Mr. Chung possessed the cocaine for the purpose of trafficking. This evidence did not meet the necessity criterion because the trial judge was capable of making a final finding of fact on the matter.

This is analogous to the situation in Sekhon where the expert’s conclusion regarding whether the accused knew about the presence of drugs was excluded because coming to a conclusion on that matter was not beyond the knowledge and experience of the judge and was not technical or scientific in nature. Experts are both permitted and expected to provide ready-made inferences to the court when the finder of fact cannot make those inferences without assistance. That was not the case here. The trial judge did not err by excluding Constable Krieger’s conclusion about Mr.

Chung’s purpose for possession. [ 43 ] Constable Krieger testified that two ounces of cocaine was more than he had ever seen a mere user have in their possession. This statement was properly excluded by the trial judge. As was held in Sekhon , the guilt or innocence of an accused in the past has no legal relevance or probative value to the guilt or innocence of the present accused. Reference can also be made to R v Tennant , 2018 ONCA 264 at para 3 , where the Ontario Court of Appeal held that an expert witness committed a Sekhon error when the expert stated in

cross-examination that “I haven’t encountered users yet that would have that much heroin”. VII. Trial judgment [ 44 ] The trial judge found Mr. Chung guilty of possession of cocaine, but not guilty of possession for the purpose of trafficking. [ 45 ] The trial judge noted that Mr. Chung had been searched twice before entering Constable Ash’s patrol vehicle and neither officer had found the bag of cocaine. However, given the size and shape of the package and the fact that officers were looking for weapons rather than drugs, the trial judge was satisfied the package could have been concealed on Mr.

Chung’s person and not discovered. [ 46 ] The trial judge then considered the patrol vehicle. She accepted that Constable Ash had checked the vehicle earlier in his shift and that the package had not been in the back seat at that time. She accepted as well that no other person had access to the vehicle following Constable Ash’s check. Given that, the only rational inference was that the package had come from Mr. Chung. Therefore, Mr. Chung was found guilty of possession of cocaine. [ 47 ] The trial judge also considered the purpose of Mr. Chung’s possession of the cocaine.

Considering her decision on the voir dire , she had little available evidence to find intent to traffic. The only evidence pointing towards intent to traffic was the amount of cocaine possessed by Mr. Chung. The trial judge took advantage of the part of Constable Krieger’s evidence that she had admitted when considering the amount of cocaine in Mr. Chung’s possession. [ 48 ] The expert evidence the trial judge admitted proved, at most, that two ounces of cocaine was more than an average user would utilize in a short-time period. This would lend credence to the conclusion that Mr.

Chung possessed the cocaine not for personal use, but for trafficking. However, the trial judge did not err by holding that there remained a reasonable doubt. Mr. Chung could have been an above-average user who could consume two ounces of cocaine in a relatively short time period. Mr. Chung could have been a cocaine user with a preference of purchasing bulk product in advance. Given the alternative explanations for the amount of cocaine in Mr.

Chung’s possession, as well as the absence of additional evidence of trafficking, the trial judge did not err in deciding there was insufficient evidence to prove the charge of possession for the purpose of trafficking. VIII. Conclusion [ 49 ] Given the standard of review pertaining to Crown appeals from acquittals and the standard of review relating to the admission or rejection of expert evidence, I can find no error on the part of the trial judge that would permit appellate intervention.

The trial judge’s factual findings, inferences and the weight she assigned to the evidence are owed deference. [ 50 ] The Crown’s appeal from the acquittal of Mr. Chung on the charge of trafficking cocaine is dismissed. “Herauf J.A.” Herauf J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Whitmore J.A.” Whitmore J.A.