February 20, 2014

Kevin Gourlay

The Supreme Court of Canada today released reasons in R. v. Sekhon, 2014 SCC 15 regarding the admissibility of expert evidence.  The accused crossed the border with 50kg of cocaine in a secret compartment underneath his truck.  He claimed he had just been asked to move the truck and had no idea it was there.

The trial judge had allowed evidence from the expert police officer that he had never encountered a blind courier in his 1,000+ investigations.  The trial judge found this one of the “very significant pieces of evidence.”

The Court of Appeal (Newbury J.A. dissenting) concluded that the impugned evidence was necessary and relevant and dismissed the appeal.  Madam Justice Newbury concluded that this was anecdotal evidence with superficial attractiveness, particularly when coming from the mouth of an “expert.”  If it is relevant to the particular accused, it is highly prejudicial.  She would have allowed the appeal and ordered a new trial.

The SCC largely agreed with Justice Newbury’s dissent with all 7 concluding the evidence was inadmissible.  The Court reiterated that admissibility depends on the Mohan criteria of relevance, necessity, the absence of an exclusionary rule, and a properly qualified expert.  However, the trial judge cannot simply consider the Mohan criteria at the outset of the expert’s testimony.  The judge must do his or her best to ensure that the expert’s testimony remains within the proper boundaries of expert evidence throughout.

While accepting that the expert’s evidence on this point was improperly admitted, the majority applied the curative proviso in s. 686(1)(b)(iii) to sustain the conviction.  The dissent (C.J. McLachlin and LeBel J.) would have ordered a new trial.


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