R. v. Dominic (E.), 2016 ABCA 114

• Judge: Fraser, C.J.A., Rowbotham and McDonald, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 09, 2016
• Citations: 2016 ABCA 114;(2016), 616 A.R. 356

R. v. Dominic (E.) (2016), 616 A.R. 356; 672 W.A.C. 356 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. AP.092

Her Majesty the Queen (respondent) v. Elia Dominic (appellant)

(1501-0085-A; 2016 ABCA 114)

Indexed As: R. v. Dominic (E.)

Alberta Court of Appeal

Fraser, C.J.A., Rowbotham and McDonald, JJ.A.

April 21, 2016.

Summary:

The accused admitted to having possessed cocaine, but maintained that it was for his personal use. The trial judge found beyond a reasonable doubt that the accused possessed the cocaine for the purpose of trafficking, in part on the basis of expert testimony from a police officer. The accused appealed his conviction on the basis that some of that testimony was inadmissible as expert evidence.

The Alberta Court of Appeal dismissed the appeal.

Evidence - Topic 1026

Relevant facts - Relevance and materiality - Admissibility - Prejudicial evidence - The accused admitted to having possessed cocaine, but maintained that it was for his personal use - The trial judge found that the accused possessed the cocaine for the purpose of trafficking, partly on the basis of expert testimony from a police officer (Larson) - The accused appealed his conviction on the basis that some of that testimony was inadmissible as expert evidence - The Alberta Court of Appeal dismissed the appeal - While the trial judge did not explicitly address the potential benefits and risks of admitting Larson's evidence, it was implicit in her qualification of Larson as an expert in certain defined areas that she found that his evidence would be more probative than prejudicial - The court also rejected the accused's argument that the impugned evidence on how much cocaine a user would typically buy and "binge use" was not legally relevant because it was not probative and highly prejudicial - See paragraphs 29 to 38.

Evidence - Topic 7000.5

Opinion evidence - Expert evidence - General - Nature and scope of - The accused admitted to having possessed cocaine, but maintained that it was for his personal use - The trial judge found that the accused possessed the cocaine for the purpose of trafficking, partly on the basis of expert testimony from a police officer (Larson) - The accused appealed his conviction on the basis that some of that testimony was inadmissible as expert evidence - The Alberta Court of Appeal stated that "Ideally, a vague term like 'practices and habits of cocaine users' would have been definitively defined in the voir dire. Nevertheless, ... Larson's testimony about cocaine being a binge drug and cocaine addicts typically consuming all they have bought falls within the scope of the 'practices and habits of users of cocaine'." - Alternatively, even if the impugned testimony did technically fall outside the areas for which the trial judge had qualified Larson as an expert, that would not necessarily be fatal - "The question, ultimately, is whether the witness has expertise in the area in question. In this case, Larson does have expertise on this point." - See paragraphs 39 to 44.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - The accused admitted to having possessed cocaine, but maintained that it was for his personal use - The trial judge found that the accused possessed the cocaine for the purpose of trafficking, partly on the basis of expert testimony from a police officer (Larson) - The accused appealed his conviction on the basis that some of that testimony was inadmissible as expert evidence - The Alberta Court of Appeal dismissed the appeal - The court held, inter alia, that the trial judge made no reviewable error in qualifying Larson as an expert on the practices and habits of users of cocaine - Whether Larson's experience and training were sufficient to qualify him as an expert in that matter was quintessentially a matter for the trial judge - The court stated that: "Regarding the criticism that Larson's experience comes only from 'anecdotal' reports of drug users, this is tantamount to challenging expertise gained through experience. 'Anecdotal evidence' is not a legal concept or a term of art but simply a way to describe second-hand evidence. It does not define, much less preclude, admissibility of that evidence. Being a qualified expert means having 'acquired special or peculiar knowledge through study or experience'... The mere fact that police experience about drug use is gained through information received from others does not, by itself, diminish the validity of the special knowledge acquired in this manner. The reality is that experience is often based on the accumulated wisdom of what some might describe as 'anecdotal' information learned on the job. Therefore, evidence gained by a police officer involved in the drug world, even though based in part on dealings with individual addicts, has, subject to the scope and depth of that experience, been accepted by the courts as sufficient to qualify the officer as an expert in drug use and how drug users behave, including rates of consumption ... It is not necessary that the police officer conduct a formal study or rely on one to substantiate the experience gained ..." - See paragraphs 21 to 23.

Evidence - Topic 7018

Opinion evidence - Expert evidence - General - Special knowledge and experience - What constitutes - [See Evidence - Topic 7001 ].

Counsel:

S.L. Tkatch, for the respondent;

J. Ruttan and N. Rodych, for the appellant.

This appeal was heard on February 9, 2016, by Fraser, C.J.A., Rowbotham and McDonald, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment on April 21, 2016.