IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  The Expert's qualifications were being challenged by the Defence.  In advance of calling Constable Munro to testify, the Crown were clear that the qualifications they were requesting, were as to the use, price, packaging, distribution, and effects of specific various drugs.  We started the voir dire and the voir dire ended with the cross-examination of her as to those specific drugs.

[2]           The idea of qualifying her on heroin, fentanyl, carfentanil, and methamphetamine was the reason for the Crown calling her.  The Crown did not, at the beginning, seek to qualify her on heroin, fentanyl, carfentanil, and methamphetamine or any combinations of those drugs.  The Information, of course, in Counts 1 through 3, charges combinations of those drugs, heroin and fentanyl, carfentanil and methamphetamine, and carfentanil and fentanyl.  So right off the hop on the Information, its face, to be assumed that what the Expert was going to be testifying about, would be her expertise in the combination of those drugs.

[3]           Crown initially took the position, when I raised this issue after both Crown and Defence had closed their questions on the voir dire, was that heroin is heroin and fentanyl is fentanyl and if she is an expert on heroin and she is an expert on fentanyl, then what is the real problem here in letting her testify as to the mixture of those two drugs?  Similarly, if she is an expert on carfentanil and she is an expert on methamphetamine, what is the problem with having her testify about a combination of those two, and similarly with the carfentanil and the fentanyl?

[4]           As far as, and I can address this later or soon, the argument by defence counsel is that she should not be qualified as an expert in any of these drugs, in particular fentanyl, but also the other drugs, because her expertise is largely, he says, based on her anecdotal evidence, that is, talking with heroin addicts, talking with methamphetamine users, talking with fentanyl users; that it is deficient and she should not be qualified as an expert because she does not have the scientific or academic background to be allowed to be qualified as an expert.

[5]           Of course, the Crown provided the cases where it becomes clear that an expert is based on - the Mohan test - to be someone who gives relevant evidence which is necessary to assist the trier of fact, something that is not in the understanding of an ordinary person, of which a judge is said to be one.  There is no exclusionary rule, and she is properly qualified as an expert in the sense that she is objective.  Those are the Mohan qualifications.

[6]           The Crown were good enough to give me another case which was on all fours to this extent and that was a case of R. v. Jacobs out of the Alberta Court of Appeal, 2014 ABCA 172 (CanLII), [2014] A.J. No. 544.  In that case, at paragraph 57, the court talked about an expert who did use, largely, at least, anecdotal evidence where he had said about 10 to 15 percent of the people that he talked to on the street (he was a police officer) were drug users of the drugs in question and the judge asked, well, what does 10 or 15 percent mean, 10 to 15 per cent of what, how many people were there?  He was not allowed to give his expertise based on the fact that, really, it was a speculative opinion and that, of course, would not qualify as expert opinion.

[7]           That case was very different from the other case that was given to me, I think by the Crown, and that was R. v. Clark, 2013 MBQB 130.  In that case, they specifically dealt with a police officer who was giving his expertise or her expertise, based on practical experience and in that case, definitively Mr. Justice McCawley held their experience does not have to be based on scientific of academic studies.  At paragraphs 10 to 13, in a little more detail, they outline why that was so.  At paragraph 11, the judge said:

[8]           In our case, I am satisfied that Detective Constable Munro, although she does not have the scientific or academic background, she has a vast amount of personal experience in all of the drugs that she has been asked to give her opinion on.  With respect to fentanyl and carfentanil, I acknowledge that that came on the market in the Vancouver area, at least, in 2013, so there has not been a lot of time to accumulate the same degree of experience and expertise she has had in heroin and methamphetamines but nonetheless she certainly knows more about the use, price, packaging, distribution and the effects of carfentanil and fentanyl than "the ordinary person" would, and I fall into the classification of an "ordinary person", so she certainly is helpful there.

[9]           Returning to the main issue, the Crown, knowing that they charged the offences Count 1, 2, and 3 as being a combination of two drugs, knowing as well that the certificates of analysis were going to have duplication -- that is, two drugs in each little package, the Crown could have sought at the beginning to have her qualified both as an expert on each of those drugs, individually and also as an expert in the combination of those drugs.

[10]        By way of analogy, if somebody is an expert in Tylenol and they are an expert in hydrogen peroxide, does that mean they necessarily would be an expert in a combination of Tylenol with hydrogen peroxide?  Scientifically, I have no idea what the combination would result in, but I would think that because somebody is an expert in Tylenol and somebody is also an expert in hydrogen peroxide, that does not necessarily make them an expert when those two things are combined.  Chemically, I do not know what happens and similarly here with the heroin and fentanyl or carfentanil and methamphetamine or the carfentanil and fentanyl, it may or may not be as dramatic a difference.

[11]        The Crown argues that these days drugs are mixed and, if a witness is an expert in both drugs, then what does it matter?  The Crown argues that you can have a combined drug and, if she knows what the effect of heroin is, and she knows what the effect and method of distribution is of fentanyl, what real difference does it make if the two are combined?  Well, I do not know whether it does or does not, whether, on the street, the price, the use, the packaging, the distribution, the effects of those two combined drugs is different than what might be the use, price, packaging, distribution, effects of each of those drugs packaged or sold as an individual drug.

[12]        So, I am of the view that (a) I should not reopen the Voir Dire because both sides, given what was on the Information an in the Certificate of Analysis and given that defence had given notice to the Crown that they were going to challenge the expertise of Detective Constable Munro, it would be improper at this juncture, the Court having raised the issue, to suddenly allow a reopening for the Crown to effectively get a second kick at the can.  The defence, of course, takes objection to that happening.  Defence argue they did their cross-examination based on what the Crown sought to be the qualifications, what witness the Crown put in the witness box to give viva voce evidence.  Defence cross-examined on that, and the Crown re-examined, so it would be unfair to reopen at this time to allow the Crown to be able to address that concern.

[13]        Perhaps that is one of the reasons why many Judges take the view that the Judge should not be raising issues that an accused's counsel does not raise.  Just for the record, I personally have a view as a Judge, if I am going to consider something, I want to give both Crown and Defence an opportunity to address me on it because my thoughts may be right, they may be wrong, and I certainly do not want to take anybody by surprise when a Decision comes out based partly at least on something that neither Counsel had an opportunity to convince me one way or another that I was right or wrong.

[14]        So, where that all leads us to is that, it is my view that Detective Constable Munro, based on her curriculum vitae and all of her viva voce evidence, is qualified as an expert to give expert evidence as to use, price, packaging, distribution, and effect of the following drugs as was requested by the Crown:  heroin, fentanyl, carfentanil, and methamphetamine.  However, she has not been qualified to give her expert opinion on the use, price, packaging, distribution, and effects of a combination of heroin and fentanyl, a combination of carfentanil and methamphetamine, a combination of carfentanil and fentanyl.