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| John L. Hill |
After a more thorough search, police found over half a kilogram of vacuum-sealed cocaine in the trunk, with a street value estimated between $20,000 and $50,000. Initially, all three individuals were charged with possession for the purpose of trafficking; however, charges against Van de Ven and Proctor were dropped in exchange for statutory declarations.
At trial, Van de Ven testified that the trip to Sudbury was spontaneous, and no one packed luggage or placed anything in the trunk. Chiarelli’s mother testified that the car was frequently used by her son and contained no personal items. An expert report confirmed that the cocaine’s packaging and amount were consistent with drug trafficking.
Chiarelli admitted that if he was found in possession, the cocaine was intended for trafficking. The central issue was whether he
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Chiarelli appealed his conviction on several grounds. The Ontario Court of Appeal found that the trial judge had made an error, necessitating a new trial (R. v. Chiarelli, 2025 ONCA 428). The curative proviso would not be applied.
The appellant argued that the trial judge erred in allowing OPP officers Desroches and Orsan to give inadmissible opinion evidence without appropriate limiting instructions, as outlined in R. v. Nguyen, 2023 ONCA 531 and R. v. Jenkins, 2024 ONCA 533. The law presumes opinion evidence to be inadmissible unless it meets strict criteria:
(a) Expert opinion must come from qualified experts and be relevant and necessary (R. v. D.(D.), 2000 SCC 43)
(b) Lay opinion is admissible only when it’s a shorthand way to describe complex observations (R. v. Graat, [1982] 2 S.C.R. 819)
(c) Police officers often cannot offer opinions linking specific acts to drug trafficking unless qualified as experts (Jenkins).
(d) It is the jury — not the officer — that must decide if specific behaviour indicates trafficking.
(b) Lay opinion is admissible only when it’s a shorthand way to describe complex observations (R. v. Graat, [1982] 2 S.C.R. 819)
(c) Police officers often cannot offer opinions linking specific acts to drug trafficking unless qualified as experts (Jenkins).
(d) It is the jury — not the officer — that must decide if specific behaviour indicates trafficking.
Another flaw that Chiarelli raised was the use of cellphone evidence. The Crown invited the jury to infer that the presence of multiple cellphones in the car implied knowledge of drug activity. Chiarelli contended that the trial judge did not adequately caution the jury regarding this inference. However, the Court of Appeal found no prejudice in the Crown’s closing arguments, ruling that a corrective instruction was unnecessary.
Chiarelli also complained that the trial judge failed to provide a Vetrovec caution (Vetrovec v. The Queen, [1982] 1 S.C.R. 811) due to the unsavoury nature of his co-accused, who testified against him. He argued that the judge should have warned the jury to regard Van de Ven’s testimony with caution, given his role as an accomplice and his incentive to shift blame. The Court of Appeal held that the decision to caution a jury about past dishonesty or interest in the trial’s outcome rests within the trial judge’s discretion.
Chiarelli also objected to the Crown using the high value of the cocaine to imply that he must have known it was in the trunk. He claimed the trial judge should have barred or limited this argument. However, there is jurisprudence indicating that an inference can be made that the person entrusted with a valuable item would be aware of its presence (R. v. Fredericks, [1999] O.J. No. 5549, R. v. Bains, 2015 ONCA 677, R. v. DaCosta, 2017 ONCA 588 and R. v. Buchanan, 2020 ONCA 245).
Lastly, Chiarelli contended that the jury’s guilty verdict was unreasonable given the evidence presented. Although the evidence in this case is largely circumstantial, the question persists as to whether the trier of fact, acting judiciously, could reasonably conclude that Chiarelli’s guilt was the only sensible outcome (R. v. Villaroman, [2016] 1 S.C.R. 1000).
Although the majority of Chiarelli’s grounds were dismissed, the Appeal Court noted that this was a jury trial. It is impossible to determine what effect, if any, the opinions of the police officers had on the jury. Furthermore, the evidence was highlighted at trial through the Crown’s closing submissions and the jury charge. The case against Chiarelli was compelling but not overwhelming. Given the circumstances, no curative proviso was accepted, and a new trial was ordered.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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