Toronto criminal lawyer Brian Weingarten Defence Law

In the previous installment on expert evidence in criminal cases, I reviewed the general framework for the admission of expert evidence. When most people think of experts giving evidence in criminal cases, they typically think of doctors, forensic scientists, psychiatrists, or pathologists.

In drug cases, however, the Crown typically seeks to tender the expert evidence of other police officers. For example, the Crown may seek to tender evidence as to the street and wholesale value of the drugs in question, consumption rates of regular users of the drug in society, the habits and lifestyle of drug traffickers, the inner workings of drug distribution networks, as well as packaging methods. None of this evidence is capable of scientific analysis or review. It is simply opinion evidence given by other police officers with “experience” in drug investigations and prosecutions.

Recall, however, that one of the criteria for the admission of expert evidence is whether the opinion is necessary in the sense that it provides information that is likely to be outside the experience and knowledge of a judge or jury.

The question of when particular “police expert” opinion evidence should be admitted in the context of a drug prosecution was squarely before the Supreme Court of Canada in R. v. Sekhon.

In Sekhon, the accused was convicted of the importation and possession for the purpose of trafficking 50kg of cocaine. The case against the accused was purely circumstantial. Mr. Sekhon’s defence at trial was that he was asked to drive a friend’s truck across the border from the United States into Canada. The truck had a secret compartment installed that contained the bricks of cocaine. A key fob controlled access to the secret compartment.

At trial, the Crown called a police officer, Sgt. Arsenault to give expert evidence. Specifically, the Crown sought expert evidence on: chains of distribution, distribution routes, means of transportation, methods of concealment, packaging, value, cost and profit margins.

During one particular exchange, the Crown asked Sgt. Arsenault whether he had ever encountered a  “blind” courier (one who does not know what they are transporting). The exchange went as follows:

Q  Officer, you described earlier that you’ve been involved in approximately 1,000 investigations involving the importation of cocaine over your 33-year career?

A  That is correct, Your Honor, yes.

Q  In approximately how many of those investigations were you able to determine that the person importing the cocaine did not know about the commodity that they were importing?

A  I have never encountered it, personally.

Q  Have you ever heard of a — the use of a blind courier or a courier who doesn’t know about the commodity that he is driving?

A  I — I’ve certainly heard that argument being raised on — on occasion, primarily in court, not during my investigations. 

In convicting the accused, the trial judge put some reliance upon the police officer’s opinion/evidence that he had never met a “blind courier” in his career. The defence appealed Mr. Sekhon’s conviction challenging, in part, that the trial judge erred by relying upon this opinion/evidence.

Ultimately, the Supreme Court of Canada upheld the conviction, but agreed that the officer’s opinion evidence on the issue of “blind” couriers was improper. The evidence should not have been admitted at trial.

The Court took the opportunity to review and endorse the existing Mohan criteria for the admission of expert evidence. On the element of necessity, the Court again emphasized that the “concern inherent in the application of this criterion is that experts not be permitted to usurp the functions of the trier of fact.

Interestingly, the Court explained that it is not sufficient to simply deal with the admissibility of expert evidence prior to the officer (or other expert) being called to testify. According to the Court, trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. Accordingly, “the trial judge must do his or her best to ensure that, throughout the expert’s testimony, the testimony remains within the proper bounds of expert evidence.”

The Court further explained, “the trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence if properly the subject of expert evidence.”

In the case itself, the Court held that the officer’s testimony on the issue of “blind couriers” had no probative value. The issue at trial was whether Mr. Sekhon knew that the drugs were secreted in the compartment under the truck. Importantly, the Court held that determining whether Mr. Sekhon knew about the drugs was not beyond the knowledge and experience of the judge. Nor was the evidence of a technical or scientific nature.

Going forward, it will be interesting to watch how lower courts apply the reasoning of this case in the context of drug trafficking or other drug cases. It remains to be seen whether trial judges will limit the ability of “police experts” to testify as to indicia of drug trafficking—or importation and production—and whether this determination will be left to the trier of fact.

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