Trial judge erred by relying on officer’s case-specific opinions concerning accused’s credibility

IMPORTING

Trial judge erred by relying on officer’s case-specific opinions concerning accused’s credibility

Accused appealed his convictions for importing cocaine and possession of cocaine for purpose of trafficking. Canada Border Services discovered approximately 53 kilograms of cocaine concealed in load of electronic games contained in commercial trailer driven by accused, long-haul truck driver. Accused testified at trial and denied any knowledge of cocaine in his trailer. Accused contended that trial judge erred by failing to confine his use of officer’s opinion evidence to proper limits of that evidence. Opinion at issue addressed use of commercial vehicles for transportation of contraband, including drugs. Opinions described were mostly general in nature. However, officer also offered several case-specific opinions, some of which bore directly on accused’s credibility and his alleged knowledge of cocaine in his vehicle. Appeal allowed; new trial ordered. Trial judge erred by relying on officer’s case-specific opinions concerning accused’s credibility and key question of accused’s knowledge of presence of cocaine in his vehicle. In circumstances where no formal admission of facts in report had been made, it was not open to trial judge to rely on report for truth of its contents. Officer’s opinion on accused’s alleged association with organized criminal elements, his knowledge of cocaine in his trailer, and his credibility, strayed beyond proper scope of expert evidence. These opinions were inadmissible and highly prejudicial to accused. These opinions concerned core, indeed pivotal, questions before trial judge. Officer’s personal opinions on these issues were not necessary. Suggestion that trial judge did not rely on inadmissible evidence was rejected. Reasons were replete with references, direct and indirect, to accused’s case-specific opinions, including, especially, those pertaining to likelihood that accused knew of presence of cocaine in his vehicle and his credibility. In embarking on his assessment of accused’s credibility, trial judge expressly indicated that he regarded report as benchmark against which accused’s testimony was to be tested. Trial judge’s reliance on impugned evidence permeated his reasons making curative proviso inapplicable. There was dissenting opinion that would have dismissed accused’s conviction appeal but allowed his sentence appeal.
R. v. Singh (Nov. 10, 2014, Ont. C.A., John Laskin J.A., E.A. Cronk J.A., and R.A. Blair J.A., File No. CA C56314) 117 W.C.B. (2d) 149.