The Admissibility of Expert Opinion Evidence Concerning the Cellphone Usage by Drug Traffickers. September 13, 2018  

Published On: Sep 13,2018

In Regina v. Vassel, 2018 ONCA 721, the Ontario Court of Appeal allowed the accused’s appeal, set aside his conviction for second degree murder, and ordered a new trial.

Expert Evidence on cell phone and drug trafficking
Expert Evidence on cell phones and towers in Drugs Trafficking Cases

The Background Facts

The victim was a drug dealer who was shot and killed in the course of a drug deal gone bad. He was also robbed of a quarter-pound of marijuana during the incident.

The relevant facts as recited by the Court of Appeal were: (a)Husam Degheim was a drug dealer who sold marijuana (the ‘deceased’). A middleman proposed a deal. The deceased agreed.  The sale of one-quarter pound of marijuana was to take place near a shopping centre in Mississauga. The buyers and seller would meet there. A simple exchange. Money for drugs. Drugs for money. Or so the deceased thought. However, the buyers had different thoughts: (i) no money for drugs; (ii) no drugs for money; (iii) drugs for free; (iv) get the drugs and leave.  On the day of the indexed offences, the buyers and seller made their separate ways to the appointed place of sale. Three (3) vehicles parked next to one another. As things began to unfold, the deceased sensed that the simple exchange of drugs for money and money for drugs was not unfolding as it should. He started his vehicle. He intended to frustrate whatever the buyers had in mind. Regrettably, the deceased was unable to escape; and two (2) men approached his van, one of which had a gun. Degheim was shot dead while he sat in the driver’s seat of his van.  His wife was beside him in the passenger seat.  The drugs were stolen and everyone fled.  Mr. Vassel was arrested for the unlawful killing of Degheim. The operating Crown theory was that Mr. Vassel was the shooter.  He was convicted for second degree murder at his jury trial.

The Evidence Called at Trial

The Crown alleged that he was the shooter. A jury found him guilty of second degree murder.  The main issue at the trial was the identity of the shooter. The Crown Prosecutors called the following relevant evidence at the jury trial:

(a) the testimony of another participant in the robbery and shooting who identified the accused, Mr. Vassel, as the shooter and whose evidence was subject to a Vetrovec caution (see: Vetrovecv. The Queen, [1982] 1 SCR 811, 1982 CanLII 20 (SCC)– this is a caution that ought to be given to a jury generally when considering evidence from disreputable or unsavory witnesses.

(b) circumstantial evidence from several different witnesses, including evidence of post-offence conduct by the accused, which tended to link the accused to the robbery and shooting; and

(3) evidence of eyewitness descriptions of the shooter generally coinciding with the appearance of the accused.

Defences Raised: Alibi and Third Party Suspect

The criminal defence lawyers for Mr. Vassel posited alibi as a defence. That defence was supported by: (i) the testimony of the accused regarding his whereabouts and activities at the time of the shooting; (ii) cellphone triangulation evidence indicating that a cellphone belonging to the accused was away from the crime scene; and (iii) the testimony of a defence witness that further confirmed the accused’s claim that he was elsewhere at the time of the shooting. The other defence raised by counsel for the accused was to invite the jury to consider the possibility that either of two third parties was the shooter.  This was through the lens of a third party (3rd) suspect application.

Errors made by the Trial Court.

The Court of Appeal held that the trial judge committed several errors:

First, the Court of Appeal held that the trial judge erred in admitting evidence adduced by the Crown in cross-examination concerning cellphone usage by drug traffickers.  That evidence was objected to at trial on the basis that the said evidence failed to satisfy the Mohan(expert testimony) criteria at the first step or stage of the expert evidence analysis. That evidence should have been excluded on the basis that it was evidence of expert opinion adduced from a witness who was not properly qualified to give it.   On this issue, the Court of Appeal concluded:

“If the testimony the Crown adduced from Kristi Jackson in cross-examination consisted in whole or in part of expert opinion on a subject matter beyond the qualifications defence counsel had already established, it was incumbent on the Crown to qualify her as an expert on that subject matter. Crown counsel made no effort to do so before eliciting the opinions he sought, although he did some backfilling after the opinion was given. To the extent that Ms. Jackson’s evidence simply recounted what the Rogers billings revealed, it was not evidence of expert opinion. But to the extent that she offered the opinion about the character of the phone – “drug” vs. “family and friends” – her testimony reflected an opinion that she had not been properly qualified to give.”

Second, the Appeal Court found that the learned Trial Justice erred by erred in instructing the jury to consider a portion of the accused’s evidence with caution or particular care. Specifically on the use of the prior statements.

Third, the Justice had erred in law by failing to instruct the jury correctly about use of the exculpatory evidence provided by eyewitnesses to the robbery and shooting.

All the remaining grounds of the appeal were dismissed by the Court of Appeal. In dismissing those grounds, the court on review held as follows: (i) the trial judge did not err in failing to admit evidence of the accused’s prior out-of-court statements; and (ii) he did not err in refusing to allow the accused to re-open the defence case to respond to a breach of the rule in Browne v. Dunn.

Finally, the court refused to apply the curative provisoin s.686(1)(b)(iii) of the Criminal Code.  A curative provisois considered under section s. 686(1)(b)(iii) of the Criminal Code of Canada, and among other things, it allows an appellate court to consider whether to dimiss an appeal despite the errors of the lower court, if there were no miscarriage(s) of justice or the errors of the lower Court(s) were harmless.   In combination of the above noted issues, these errors were not harmless.  This is because the evidence against the appellant was not overwhelming. What is more, the main source was the testimony of a Vetrovec witness (see above). Finally, the jury deliberated over five (5) days and twice (2x) reported a deadlock. Based on the foregoing, this was not a case in which the curative proviso can be applied.

If you have been charged with a criminal offence and the matter is likey to proceed to a jury trial, it is important to ensure that sufficient and accurate representations are made on the Court record to that the correct jury charges are addressed.

Contact Mr. J. S. Patel, Barrister for a free initial thirty minute consultation regarding your matter.

Call 403-585-1960