R. v. Edison (T.), (2015) 433 N.B.R.(2d) 267 (TD)

• Judge: Ferguson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 09, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 433 N.B.R.(2d) 267 (TD);2015 NBQB 74

R. v. Edison (T.) (2015), 433 N.B.R.(2d) 267 (TD);

    433 R.N.-B.(2e) 267; 1130 A.P.R. 267

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2015] N.B.R.(2d) TBEd. AP.013

Renvoi temp.: [2015] N.B.R.(2d) TBEd. AP.013

Her Majesty the Queen v. Thomas Edison

(SJCR-13-2014; 2015 NBQB 74; 2015 NBBR 74)

Indexed As: R. v. Edison (T.)

Répertorié: R. v. Edison (T.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Ferguson, J.

March 23, 2015.

Summary:

Résumé:

The accused was charged with two counts of conspiracy to traffic in heroin and cocaine. The Crown brought a pretrial motion to have Sergeant Tomeo declared an expert witness. The Crown asserted that Tomeo's testimony was relevant and necessary across a panoply of aspects of the supply, sale and use of illegal drugs. The accused asserted that Tomeo's evidence should be rejected where it was lacking in independence or impartiality because he had been a police officer for his whole career and thus carried an unacceptable bias in favour of the Crown and law enforcement.

The New Brunswick Court of Queen's Bench, Trial Division, determined the issues.

Evidence - Topic 7000.2

Opinion evidence - Expert evidence - General - Expert witness - Disqualification - Bias - The accused was charged with two counts of conspiracy to traffic in heroin and cocaine - The Crown brought a pretrial motion to have Sergeant Tomeo declared an expert witness - He was a 34 year member of the R.C.M.P. having spent 26 of those years in the Montreal, QC Drug Unit that he now supervised - The Crown asserted that Tomeo's testimony was relevant and necessary across a panoply of aspects of the supply, sale and use of illegal drugs - The accused asserted that Tomeo's evidence should be rejected where it was lacking in independence or impartiality because he had been a police officer for his whole career and thus carried an unacceptable bias in favour of the Crown and law enforcement - The New Brunswick Court of Queen's Bench, Trial Division, qualified Tomeo as an expert witness - There was nothing in his testimony and nothing in his lengthy curriculum vitae that would warrant depriving the jury of his testimony - His testimony would be tagged with the appropriate expert witness instruction to the jury that would include that he was but one witness, albeit an expert, in a lengthy trial and that their duty as fact finders was theirs and no one else's - Tomeo (1) was declared an expert entitled to give opinion evidence subject to necessity, relevance, the absence of an exclusionary rule and "the cost-benefit" being established; (2) was entitled to give opinion evidence that persons engaged in drug dealings often speak to each other in coded or furtive language and give examples of how that technique was employed; (3) was entitled to give evidence on the common acronyms used by those engaged in the drug trade to describe illicit drugs, or prescription drugs dealt with illegally, and other terms common to drug dealing; (4) was entitled to give hypothetical examples of how those dealing in drugs might construct coded conversations as well as the methods used to decode the messages provided that the hypothetical examples do not reflect the evidentiary matrix of the accused's case; and (5) was not entitled to give opinion evidence "specifically" interpreting any purported coded or furtive language utilized this case or to advance an opinion that purported coded or furtive language utilized in this case "could" be interpreted in a particular way or was consistent with a particular interpretation.

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See Evidence - Topic 7000.2 ].

Preuve - Cote 7000.2

Témoignages d'opinion - Preuve d'expert - Généralités - Disqualification - Partialité - [Voir Evidence - Topic 7000.2 ].

Preuve - Cote 7002

Témoignages d'opinion - Preuve d'expert - Généralités - Acceptation ou rejet d'une opinion d'expert ou poids à lui donner - [Voir Evidence - Topic 7002 ].

Cases Noticed:

R. v. Sekhon (A.S.), [2014] 1 S.C.R. 272; 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 5].

R. v. Jacobs (P.G.) (2014), 577 A.R. 3; 613 W.A.C. 3; 2014 ABCA 172, refd to. [para. 6].

R. v. L.K., [2011] O.T.C. Uned. 2562; 2011 ONSC 2562, refd to. [para. 7].

R. v. Pham (A.T.T.), [2013] O.T.C. Uned. 4903; 2013 ONSC 4903, refd to. [para. 11].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 14].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 246 C.C.C.(3d) 301; 2009 ONCA 624, leave to appeal denied (2010), 409 N.R. 397 (S.C.C.), refd to. [para. 14].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 33].

R. v. Selles (F.) (1997), 101 O.A.C. 193; 116 C.C.C.(3d) 435 (C.A.), refd to. [para. 34].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111, refd to. [para. 37].

R. v. M.C. (2014), 325 O.A.C. 1; 2014 ONCA 611, refd to. [para. 38].

R. v. Orr, [2015] B.C.J. No. 366 (C.A.), refd to. [para. 40].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants (2013), 330 N.S.R.(2d) 301; 1046 A.P.R. 301; 2013 NSCA 66, refd to. [para. 41].

Alfano v. Piersanti et al. (2012), 291 O.A.C. 62; 2012 ONCA 297, leave to appeal refused (2012), 443 N.R. 394 (S.C.C.), refd to. [para. 43].

R. v. Pearce (M.L.) (2014), 310 Man.R.(2d) 14; 618 W.A.C. 14 (C.A.), refd to. [para. 43].

Sekerbank T.A.S. v. Arslan et al. (2014), 450 Sask.R. 76 (Q.B.), refd to. [para. 44].

Moore v. Getahun et al. (2015), 329 O.A.C. 363; 2015 ONCA 55, refd to. [para. 45].

R. v. Fougère (1988), 86 N.B.R.(2d) 93; 219 A.P.R. 93 (C.A.), refd to. [para. 53].

R. v. Somerville (M.D.) (2012), 384 N.B.R.(2d) 146; 995 A.P.R. 146 (C.A.), refd to. [para. 53].

R. v. Quasi, [2014] O.J. No. 495 (C.A.), refd to. [para. 58].

R. v. Nguyen, [2007] NSWCCA 249, refd to. [para. 60].

R. v. Keller, [2006] NSWCCA 204, refd to. [para. 62].

R. v. Hui (1988), 32 O.A.C. 141 (C.A.), refd to. [para. 68].

Counsel:

Avocats:

Gilles Daigle, for the Attorney General;

Allan Levine, for the accused.

This application was heard on March 9, 2015, by Ferguson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision on March 23, 2015.