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Evidence - Expert - Police. R. v. Chiarelli
In R. v. Chiarelli (Ont CA, 2025) the Ontario Court of Appeal considers police officer opinion evidence:[17] This court has previously cautioned against the improper use of opinion evidence from police officers, including in the context of drug offences: R. v. Nguyen, 2023 ONCA 531, 429 C.C.C. (3d) 192, at paras. 48-53; R. v. Jenkins, 2024 ONCA 533, 439 C.C.C. (3d) 499, at paras. 20-23.
[18] Opinion evidence, even from police officers, is presumptively inadmissible; to be admissible it must satisfy the criteria for expert evidence or for lay opinion evidence: Nguyen, at para. 48, citing R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 49; Jenkins, at para. 21.
[19] To be admissible as expert evidence, police officers have to be qualified as experts to provide the opinion at issue, and their evidence must otherwise meet the admissibility criteria: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-25; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19.
[20] As this court pointed out in Nguyen, at para. 52, it is not uncommon for expert evidence to be required on issues of drug trafficking. For example, in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 18, an expert witness provided evidence about the “chains of distribution, distribution routes, means of transportation, methods of concealment, packaging, value, cost and profit margins”. The court noted in Nguyen, at para. 52, that this type of evidence often requires “specialized knowledge beyond what may ordinarily be acquired by police officers without specific training”. As another example, in this case, on consent, D.C. Browne’s report was admitted as expert evidence for the purpose of establishing that the quantity and packaging of the cocaine were consistent with possession for the purpose of trafficking.
[21] As emphasized in Jenkins, at para. 31, where expert evidence is admitted in a drug trafficking case, the opinion must be limited to general terms and not intrude on the jury’s role as fact finder:[W]here opinion evidence is tendered on issues related to drug trafficking, it must be limited to providing the jury with evidence in general terms about the area of expertise (for example, drug pricing; trafficking quantities; methods of drug trafficking), which they may consider and, if they accept it, apply as part of their fact finding to decide what inferences or conclusions to draw from other evidence (for example, surveillance evidence). Expert opinion may not extend to conclusions or inferences to be drawn about the accused’s conduct. The inference-drawing process is part of the jury’s fact-finding role, and not the province of the expert witness. Thus, an expert providing opinion evidence about indicia of drug trafficking may not opine that the particular acts of the accused were drug trafficking or were consistent with drug trafficking. Those questions are for the trier of fact. [Citations and emphasis omitted.] [22] In some circumstances, the opinion evidence of lay people, including police officers, may be admissible. Lay opinion evidence is admissible where witnesses give “a compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly”: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 841; Nguyen, at para. 53. In other words, where a lay witness testifies about their observations, if it is necessary for them to state their opinion about the meaning of those observations in order to describe them coherently, then the opinion will be admissible. As explained in Jenkins, at para. 23, where a police officer gives evidence about surveillance observations, “they can relate the evidence of the factual observations they made without providing the further opinion evidence that the conduct observed is consistent with drug trafficking”.
[23] Based on these principles, in Nguyen, this court found that the trial judge made an error in admitting the opinion evidence of a police officer who testified that the acts of picking up and dropping off property in that case were consistent with drug-related activity. The court held that the officer’s evidence was not admissible as expert evidence because he was not qualified as an expert and because it did not meet the necessity requirement as it was not technical or a matter on which ordinary people are likely to form incorrect opinions: Nguyen, at para. 51. The court also did not accept that the officer’s evidence was admissible as lay opinion evidence because the officer “did not have to offer the opinion that the interaction he saw was consistent with drug trafficking to describe effectively the factual observation he had made”: Nguyen, at para. 53. Nevertheless, the court ultimately dismissed this ground of appeal based on the curative proviso, finding that the error was so harmless that it could not have impacted the verdict. In reaching this conclusion, at paras. 56-57, the court considered that the case was decided by an experienced trial judge, that the opinion offered by the officer was one that the trial judge could have reached on her own and that she made no reference to the officer’s opinion evidence in her reasons.
[24] In Jenkins, five police officers testified regarding their observations of various interactions between the accused and others. As part of the examination-in-chief of each officer, the Crown asked what the police officers made of those interactions based on their experience. In each case, the police officers gave their opinion that the interactions were consistent with drug trafficking. The trial judge ruled that their evidence was admissible as lay opinion evidence. This court found that it was an error to admit the evidence for several reasons: 1) the officers were not qualified as experts in drug trafficking (para. 27); 2) the officers’ conclusory opinions were not necessary for the jury to reach a correct judgment on the evidence (para. 28); and 3) the officers could convey their factual observations without giving the added opinion that the interactions at issue were consistent with drug trafficking (para. 29). In Jenkins, this court did not apply the curative proviso. The court noted that this was a jury trial and, unlike in Nguyen, it was not possible to know whether the jury relied on the improper opinion evidence. In addition, the surveillance evidence was given prominence at trial through the Crown’s questions and in closing submissions, and the trial judge did not caution the jury to disregard the opinions of the officers.
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