This week the Supreme Court put a fence around runaway experts.
It has become common practice for Crown prosecutors to call experienced police officers as expert witnesses to opine on anything and everything criminals do. In R. v. Sekhon, the Supreme Court blew the whistle.
Ajitpal Singh Sekhon was charged with Importing Cocaine and Possession for the Purpose of Trafficking after he was caught at the B.C.-Washington border with 50 kg of cocaine hidden in the secret compartment of a pickup truck. He said he was asked to drive the truck by a friend and did not know about the hidden cocaine. The Crown called an experienced drug investigator. He swore there was no such thing as a blind courier, explaining that in several thousand investigations he never encountered a courier who did not know he was carrying contraband. Not surprisingly, the judge hearing this evidence convicted.
The Supreme Court said the opinion evidence was inadmissible. Justice Moldaver compared the opinion to a homicide investigator testifying she never met a murder suspect who didn’t intend to kill his victim. He pointed out that this type of evidence forces the defendant to prove how they are different than all the other suspects the investigator has encountered. By this nifty move, the Crown can shift its burden of proof to the defendant.
Justice Moldaver put the ultimate responsibility for policing improper opinion evidence on the trial judge. The trial judge’s job is not finished when he makes the initial decision about the admissibility of the expert’s evidence. He must continue to set the boundaries of the evidence and the witness’s expertise throughout the testimony. Where improper evidence slips by without objection, the judge must give a remedial instruction to a jury. In a judge-alone trial he must not give any weight to the inadmissible parts.
The decision is a welcome addition to Canadian evidence law. This type of anecdotal opinion from an expert can have a disproportionate impact on a jury or even a judge. Sekhon is a step in the right direction to ensuring that criminal trials are decided on evidence of a defendant’s guilt or innocence not dime store gossip.