Expert Evidence of Police Officers and the Curative Proviso: R v Sekhon
Ajitpal Singh Sekhon attempted to drive a pickup truck across the border from Washington State into British Columbia on January 25, 2005. He was flagged for secondary inspection by Canadian customs officials, which led to the discovery of 50 one-kilogram bricks of cocaine – valued over $1.5 million – hidden inside a secret compartment in the pickup truck. After Mr. Sekhon was detained and advised of his rights, he produced a key fob from his pocket. The police later found out that when the key fob’s buttons were pressed in a particular sequence, it opened and closed the hidden compartment.
Mr. Sekhon claimed that he did not know there was cocaine in the vehicle – he had merely agreed to drive his friend’s truck back to British Columbia. Thus, he argued, he lacked the requisite knowledge to be found guilty of importing cocaine and possessing cocaine for the purpose of trafficking.
The Crown called RCMP Sergeant Vincent Joseph Arsenault to give expert evidence regarding the drug trade in the Lower Mainland of British Columbia. Sgt. Arsenault had been a police officer for 33 years, and was involved in approximately 1,000 cocaine importation cases.
The trial judge relied on 3 key pieces of circumstantial evidence in convicting Mr. Sekhon:
- The large amount of cocaine involved would mean that its owners would want a trusted and tested individual to courier the shipment, entailing some knowledge on the part of the courier;
- Sgt. Arsenault’s testimony that in the 1,000 or more cocaine importation investigations he has been involved in, he has never encountered a “blind” courier who had no knowledge of what he was moving; and
- Mr. Sekhon had initially only handed over to the border official the truck’s ignition key without its key fob, which would have required manual manipulation by Mr. Sekhon since their connecting chain was not prone to open accidentally.
The second key piece of evidence that the trial judge relied on became the focal point of scrutiny by the appellate courts. It was elicited from the following exchange between the Crown prosecutor and Sgt. Arsenault:
Q: In approximately how many of those [approximately 1,000] investigations were you able to determine that the person importing the cocaine did not know about the commodity that they were importing?
A: I have never encountered it, personally.
Q: Have you ever heard of a — the use of a blind courier or a courier who doesn’t know about the commodity that he is driving?
A: I — I’ve certainly heard that argument being raised on — on occasion, primarily in court, not during my investigations.
The SCC Ruling
All 7 sitting judges of the Supreme Court of Canada in R v Sekhon,  1 SCR 272, agreed that Sgt. Arsenault’s testimony concerning the “blindness” of other individuals he had investigated was anecdotal. As such, the trial judge erred in admitting it into evidence. In the Supreme Court’s unanimous view, the guilt or innocence of accused persons that Sgt. Arsenault had encountered in the past was legally irrelevant to the guilt or innocence of Mr. Sekhon. In addition to its low probative value, the prejudicial effect of such testimony was high; it essentially amounted to a statement by an expert police officer that individuals in Mr. Sekhon’s position always know about the drugs. As stated by Newbury J.A. of the British Columbia Court of Appeal, whose dissent in Sekhon was upheld by the SCC:
Anecdotal evidence of this kind is just that — anecdotal. It does not speak to the particular facts before the Court, but has the superficial attractiveness of seeming to show that the probabilities are very much in the Crown’s favour, and of coming from the mouth of an “expert.” (para 50)
However, the 5-judge majority of the SCC held that despite the inadmissible testimony, there was enough circumstantial evidence to otherwise convict the accused. Thus, the curative proviso in section 686(1)(b)(iii) of the Criminal Code, RSC 1985, c C-46, applied: where an appellate court is “of the opinion that no substantial wrong or miscarriage of justice has occurred”, the appeal may be dismissed notwithstanding the trial judge’s error. According to Justice Moldaver, writing for the majority:
[T]here are two situations where the use of s. 686(1)(b)(iii) is appropriate: 1) where the error is harmless or trivial; or 2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict […] In my view, this case falls squarely within the latter category […] the remaining admissible evidence pointing towards Mr. Sekhon’s guilt is overwhelming. (paras 53-54)
Furthermore, Moldaver J. ruled that it would be a waste of public resources to order a re-trial where the verdict would be the same given the compelling evidence, and it was therefore in the public interest that that Mr. Sekhon’s conviction be upheld.
In dissent, Justice LeBel, with Chief Justice McLachlin concurring, held that a new trial should be ordered. The trial judge’s error in admitting and relying on the inadmissible testimony was not a harmless error and for the minority, the remainder of the Crown’s case was not so overwhelming that a conviction would be inevitable. Moreover, Sgt. Arsenault was directed by the Crown in their line of questioning to offer his anecdotal evidence – it was not unprompted or unanticipated testimony.
For the SCC minority, the standard to be met for the application of the curative proviso is even higher than the “beyond a reasonable doubt” standard of proof – the Crown’s case against the accused must be so powerful that any other verdict but a conviction would be impossible. Justice LeBel pointed out that the Supreme Court has consistently refused to lower this standard. An appellate bench does not have the same benefit as a trial judge in assessing the evidence presented before him/her in open court. As such, appellate judges should not retroactively consider what the result of a proper trial would have been – they should remit the matter back to a court of first instance and have the case presented to a trier of fact without the inadmissible evidence.
The dissent turned its mind towards the remaining 2 key pieces of evidence relied upon by the trial judge for convicting Mr. Sekhon; it found that the significant value of the cocaine discovered might support inferences other than that the drugs would not have been entrusted to a “blind” stranger, and that there was no evidence on when and how the fob came to be detached from the key (only the trial judge’s inference). As the admissible evidence fell short of an invariable conviction, the SCC minority would not have applied the s. 686(1)(b)(iii) curative proviso.
In R v Sarrazin, 2010 ONCA 577, Moldaver J.A. of the Ontario Court of Appeal (as he then was), in dissent, would have upheld the accused’s conviction despite a flawed jury instruction because “the failure to instruct the jury on the offence of attempted murder was harmless in the circumstances” [para 135]. On appeal, the 6-3 majority of the SCC ultimately agreed with the ONCA’s majority decision to overturn the Sarrazin conviction and order a new trial. Chief Justice McLachlin and Justice LeBel were part of the SCC majority in R v Sarrazin,  3 SCR 505. In 2011, Justice Moldaver was elevated to the Supreme Court of Canada, and as abovementioned, penned the SCC’s majority decision here in Sekhon while C.J.C. McLachlin concurred with LeBel J. in the minority.
Tim Quigley of the University of Saskatchewan College of Law, in his Westlaw annotation of R v Sarrazin, 2011 SCC 54, said:
It is reassuring that the Supreme Court is unanimous in adhering to a high burden on the Crown to justify a verdict in spite of a legal error. Reducing the burden as recommended by Moldaver J.A. (as he then was), dissenting in the Ontario Court of Appeal, could have the effect of permitting verdicts to stand on a post-hoc analysis of the transcript when it is possible that a properly instructed jury might have come to a different conclusion. Reducing the burden could contribute to wrongful convictions.
Stephen Coughlan of the Schulich School of Law also noted of the curative proviso generally:
[W]here evidence has been improperly admitted it is not open to a court of appeal simply to conclude that the remainder of the evidence could or ought to result in a conviction. If that were the case, then there would be no need for section 686(1)(b)(iii) […] the provision should only be applied if conviction would be “inevitable” or “invariable” […] In general, courts of appeal should be more cautious in cases involving questions of credibility and should avoid speculating about the bases upon which a jury may have accepted some evidence or rejected other evidence. [pg 363 of Criminal Procedure, 2008, Irwin Law]
As I have argued elsewhere, judicial resources are indeed limited but this cannot override the criminal justice system’s basic goal of protecting the innocent – a goal which includes an accused’s right to a fair trial based only on admissible evidence.