



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sarjoghian, 2020 ONCA 550

DATE: 20200902

DOCKET: C64912

Juriansz, Tulloch and Jamal
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hassan Sarjoghian

Appellant

Mark Halfyard and Colleen McKeown, for
    the appellant

David Quayat, for the
    respondent

Heard: in writing

On appeal from the conviction entered on
    July 6, 2017 by Justice Michael G. Emery of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION


[1]

Mr. Sarjoghian appeals his conviction for
    importing opium into Canada contrary to the
Controlled Drugs and Substances
    Act
, S.C. 1996, c. 19, s. 6(1). For the reasons below, we allow the
    appeal.

[2]

At trial, Mr. Sarjoghian denied knowing that the
    air compressor he had shipped to Canada from Iran contained opium in a hidden
    compartment. The Crowns expert witness on drug importation and concealment,
    while under cross-examination, testified that, in his experience, it was one
    hundred percent true in every investigation the person who brought the
    shipment to Canada had knowledge of the illicit substance. He explained the
    importing organization will maintain positive control of a high-value shipment
    at all times.

[3]

Mr. Sarjoghian appeals on the ground that the
    Crown experts anecdotal evidence of the knowledge of drug couriers ran afoul
    of the decisions of the Supreme Court of Canada in
R. v. Sekhon
, 2014
    SCC 15, [2014] 1 S.C.R. 272, at paras. 49-51, and of this Court in
R. v.
    Burnett
, 2018 ONCA 790, 367 C.C.C. (3d) 65, at paras. 75 and 80, which
    ruled that such evidence lacks relevance and is not probative of an accuseds
    knowledge. Such anecdotal evidence is highly prejudicial and therefore
    inadmissible.

[4]

The Crown concedes that the appeal should be
    allowed. In this case, as in
Burnett
, the trial judge failed to instruct
    the jury to disregard the inadmissible evidence. Here, as in
Burnett
,
    [t]he prejudice remained unabated:
Burnett
, at para. 78.

[5]

On this ground alone, we allow Mr. Sarjoghians
    appeal and order a new trial. We need not address the other grounds raised by
    Mr. Sarjoghian.

R.G. Juriansz J.A.

M. Tulloch J.A.

M. Jamal J.A.


