#5 R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272

What the case is about:

supreme court canada sekhon expertMr. Sekhon was convicted of importing and possessing 50kg of cocaine for the purpose of trafficking. Canadian Border Security found the illegal substance in a hidden compartment in a pick up truck he drove from the United States.  The issue for Mr. Sekhon was very simple: did he know that the cocaine was in the truck?

During the course of the trial, the Crown called an expert who testified as to the customs and habits of drug couriers.  The expert went so far as to testify that he had never come to know of a “blind” courier in all his years of experience.  This evidence squarely conflicted with the evidence of Mr. Sekhon.

The trial judge concluded that Mr. Sekhon did have knowledge and rejected his evidence to the contrary.   The Court of Appeal dismissed his appeal, as did the Supreme Court of Canada.

However, in so doing, some very strong findings were made as to the use of experts providing evidence on the “ultimate issue” and upon matters outside their scope of expertise.

In particular, Justice Moldaver, writing for the majority, held that the court should have not permitted the police officer to testify about his own experience with blind couriers and that the judge erred in relying upon it.

In referring to the canonical case on expert evidence, R. v. Mohan, Justice Moldaver set out the 4 components to properly have expert evidence admitted:  (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert.  This includes assessing a cost-benefit analysis requiring the judge to balance the probative value of the evidence against its prejudicial effect.  If a jury or judge can make their own assessments and conclusions of the evidence, then an expert is unnecessary.

Caution and vigilance must be made to ensure that experts do no usurp the trier of facts’ role and that they stay within their boundaries of expertise.  In particular, anecdotal evidence on unrelated matters is both irrelevant and highly prejudicial.

Legal significance:

Despite the finding that the judge erred in relying on the evidence of the expert in determining guilt, the Supreme Court did not order a new trial because in their own ex post facto assessment, the case was strong enough to substantiate a conviction.  It is impossible to say whether or not the judge would have been convinced beyond a reasonable doubt without relying upon the expert but the Court seemed to have little sympathy for such argument.

Justice Moldaver, confidently wrote:

While the error relating to the flawed expert testimony cannot be swept aside as harmless, the evidence establishing the appellant’s guilty knowledge — and thus his guilt — is overwhelming.  Hence, the second branch of the curative proviso can safely be applied to sustain the convictions.

With respect, this finding by the Court is speculative at best. Any seasoned defence lawyer knows that all cases can be won, and all cases can be lost.  In my experience, the phrase “overwhelming evidence” is simply an overused concept that legal minds use for pre-determinations of guilt of an individual that has no place in the justice system.  This is particularly so in appellate courts.

As already seen in the case of R. v. Hutchinson, supra, there appears to be an unusual and alarming trend for the Supreme Court to replace their own findings of fact and after the fact assessments of evidence – something which has traditionally been avoided with great caution in the past.

To make matters more troublesome, the Crown in this case conceded that the error was not a harmless or minor one that would have no impact on the verdict. The admission of improper evidence in this case cannot be considered “an error that is harmless on its face or in its effect”. Justice LeBel, in writing the dissent, found the obvious result of this was to allow a new trial.  Of course, this is of little consolation to Mr. Sekhon who now faces a considerable penitentiary sentence never knowing if things would have been different if the trial judge was not permitted to rely on the inadmissible evidence.

It is also noteworthy that the dissent seemed to go out of their way to mention a rather novel concern that new trials place “demands on judicial resources” as something that ought to even be considered in any case where liberty of the individual is at stake. Is this a new concern of the Court?  Is this a tension that the majority expressed but did not articulate?  Is this now an unspoken consideration in granting new trials?

It is concerning that the highest court of the land would place any weight or even mention the cost of a new trial when so much is at stake, and so much is not known about what an outcome might otherwise be. Incidentally, the Provincial Court trial in this matter was probably a hundredth of the cost in public funds that it took to appeal this all the way to the Supreme Court.