Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Michael Dennis Duffy
Before: Justice Charles H. Vaillancourt
Heard on: June 16, 17 and 18, 2015
Reasons for Ruling released to counsel: November 10, 2015
Reasons for Ruling released in court: November 19, 2015
Counsel:
- Mark Holmes and Jason Neubauer, for the Crown/Applicant
- Donald Bayne and Jon Doody, for the accused Michael Dennis Duffy/Respondent
VAILLANCOURT J.
RULING ON A VOIR DIRE REGARDING THE ADMISSIBILITY OF THE EXPERT OPINION EVIDENCE OF MARK GRENON, FORENSIC ACCOUNTANT
Counsels' Positions as to the Admissibility of Mr. Grenon's Evidence
1The Crown seeks to adduce expert evidence of forensic accountant, Mr. Mark Grenon as it relates to his analysis of:
(i) The travel claims submitted by Senator Duffy and paid by the Senate;
(ii) Senator Duffy's financial practices and position;
(iii) Senate contract funds procured and distributed by Senator Duffy and Gerald Donohue; and
(iv) The payment of $90,000 by Nigel Wright to Senator Duffy to the Receiver General of Canada.
2Counsel for Senator Duffy is in agreement that the evidence of Mr. Grenon as it relates to (iv), namely, Exhibits 9, 10, and 11 on the voir dire and the related oral evidence, should be found to be admissible.
3Likewise, Mr. Bayne acknowledges that the one "cautiously delineated" and "properly circumscribed" area of the proffered expert evidence of Mr. Grenon as it relates to (i), namely, the 'corrected' totals for the amounts paid in respect of Senator Duffy's NCR living expenses and the thirteen specific travel-related claims that are before this court for adjudication as set out in Tables 6.4 and 3.1 at page 9-9 and on the Revised Summary of Findings Page, respectively, of Exhibit 2 on the voir dire, should be held to be admissible.
4Mr. Bayne takes the position that the remainder of category (i) and all of categories (ii) and (iii) should be ruled inadmissible.
The Law
Framework for Determination of Admissibility of Expert Evidence
5When embarking upon the task of determining the admissibility of expert evidence, the court is assisted by the Supreme Court of Canada decisions of R. v. Mohan, 1994 CanLII 80 (SCC) and White Burgess Langille Inman v. Abbott & Haliburton Co., 2015 SCC 23 (referred to throughout in these reasons as White v. Abbott) and the Ontario Court of Appeal decision of R. v. Abbey, 2009 ONCA 624.
6Doherty, J.A. observed at paragraph 71 of R. v. Abbey, supra, that:
It is fundamental to the adversary process that witnesses testify to what they saw, heard, felt or did, and the trier of fact, using that evidentiary raw material, determines the facts. Expert opinion evidence is different. Experts take information accumulated from their own work and experience, combine it with the evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material. The trier of fact must then decide whether to accept or reject the expert's opinion as to the appropriate factual inference. Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently, expert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balance of probabilities: Paciocco & Stuesser, The Law of Evidence, 5th ed. (Toronto: Irwin Law, 2008) at pp. 184; S. Casey Hill et al., McWilliams' Canadian Criminal Evidence, 4th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2009) at para. 12:30.10.
7"The judicial challenge is to properly control the admissibility of expert opinion evidence." See: R. v. Abbey, supra, at para. 73.
8Doherty J.A. in R. v. Abbey, supra, also noted at paragraph 62 that:
The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, if necessary the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal: see, for example, R. v. Ranger, 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1, [2003] O.J. No. 3479 (C.A.); R. v. Klymchuk, 2005 CanLII 44167 (ON CA), [2005] O.J. No. 5094, 203 C.C.C. (3d) 341 (C.A.); R. v. K.(A.), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641, [1999] O.J. No.3280 (C.A.), at paras. 123-125; R. v. Llorenz, 2000 CanLII 5745 (ON CA), [2000] O.J. No. 1885, 145 C.C.C. (3d) 535 (C.A.), at paras. 30-40.
9At the conclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible and be mindful that admissibility is not an all or nothing proposition. See: R. v. Abbey, supra, at para. 63.
10Cromwell, J. commenced his reasons in White v. Abbott, supra, at paragraph one by writing:
Expert opinion evidence can be a key element in the search for truth, but it may also pose special dangers. To guard against them, the Court over the last 20 years or so has progressively tightened the rules of admissibility and enhanced the judge's gatekeeping role.
11The Supreme Court of Canada has provided the foundation for the analysis of the admissibility of expert evidence with four preconditions as set out in R. v. Mohan, supra, which was refined by the Ontario Court of Appeal in R. v. Abbey, supra, as a two-step process, and affirmed with minor modification by the Supreme Court in White v. Abbott, supra.
Step One
12Step one is to determine whether the proposed evidence satisfies the following four Mohan preconditions:
(i) relevance;
(ii) necessity in assisting the trier of fact;
(iii) absence of an exclusionary rule;
(iv) a properly qualified expert.
See: R. Mohan, supra, at para. 17.
13Evidence that does not meet the aforementioned preconditions must be excluded.
14If the evidence does meet the Mohan preconditions, the trial judge embarks upon a "gatekeeper" function under step two.
15Step two requires the court to determine whether the proposed expert evidence satisfies a cost-benefit analysis. This phase requires the judge to exercise judicial discretion when identifying and weighing competing considerations and deciding whether on balance those considerations favour the admissibility of the evidence. See: R. v. Abbey, supra, at para. 79.
An Examination of the Four Preconditions as Outlined in Mohan
Relevance
16"Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decided by a judge as a question of law." See: R. v. Mohan, supra, para. 18.
17The proposed evidence must be both logically relevant and legally relevant. Logical relevance relates to the relationship between the proposed evidence and a fact in issue in the trial:
Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.
D. Paciocco, L. Stuesser, The Law of Evidence, 2nd Ed., 1999, Irwin Law at p.21
18Relevance at the precondition stage refers specifically to logical relevance - a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence. This is to be distinguished from the concept of legal relevance which involves a limited weighing of the costs and benefits associated with admitting the evidence that is logically relevant. Legal relevance is best determined at the gatekeeper phase. See: R. v. Abbey, supra, at paras. 82-84.
19Evidence that is not logically relevant should be excluded in the first phase of the analysis.
Necessity
20At paragraph 22 in R. v. Mohan, supra, the legal standard for admissibility is outlined as follows:
This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury".
21The Mohan admissibility criterion of "necessity" is itself governed by the additional principles:
(i) "If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary." Turner, (1974), 60 Crim. App. R. 80 at p. 83.
(ii) It is the fact-finder's role "to form opinions and draw inferences and conclusions and not for the witness." See: White and Abbott, supra, at para. 14.
(iii) "The second requirement of the Mohan analysis exists to ensure that the dangers associated with expert evidence are not lightly tolerated. Mere relevance or 'helpfulness' is not enough. The evidence must also be necessary." See: R. v. D.D., 2000 SCC 43, [2000] SCJ No. 44, at para. 46 (per Major, J.)
(iv) "… some degree of deference is owed to the trial judge's discretionary determination of whether the Mohan requirements have been met on the facts of a particular case, but that discretion cannot be used erroneously to dilute the requirement of necessity. Mohan expressly states that mere helpfulness is too low a standard to warrant accepting the dangers inherent in the admission of expert evidence. A fortiori, a finding that some aspects of the evidence "might reasonably have assisted the jury" is not enough. See: R. v. D.D., supra, at para. 47.
(v) Major, J. in R. v. D.D., supra, at paragraph 57 adopts the following passage by Professor Paciocco (as he then was), dealing with the risks associated with expert evidence as it relates to the issue of necessity as follows:
As the Mohan Court explained, the four-part test serves as recognition of time and expense that is needed to cope with expert evidence. It exists in appreciation of the distracting and time-consuming thing that expert testimony can become. It reflects the realization that simple humility and a desire to do what is right can tempt triers of fact to defer to what the expert says. It even addresses the fact that with expert testimony, lawyers may be hard-pressed to perform effectively their function of probing and testing and challenging evidence because its subject matter will often pull them beyond their competence, let alone their expertise. This leaves the trier of fact without sufficient information to assess reliability adequately, increasing the risk that expert opinion will simply be attorned to. When should we place the legal system and the truth at such risk by allowing expert evidence? Only when lay persons are apt to come to a wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learning of experts. As Mohan tells us, it is not enough that the expert evidence be helpful before we will be prepared to run these risks. That sets too low a standard. It must be necessary.
D. Paciocco, Expert Evidence: Where Are We Now? Where Are We Going? (1998), at pp. 16-17
(vi) If evidence is shown to be genuinely "necessary", the trial judge should question whether it has already, in effect, been given by another witness or could be, rather than having it introduced by an "expert" witness. See: R. v. Ranger, 2003 CanLII 32900 (ON CA), 67 OR (3d) 1 (CA) at para. 66. The Court noted at para. 67 that, "… it is my view that the danger the jury might give the evidence more weight than it deserved far outweighed its probative value."
Absence of an Exclusionary Rule
22An expert's evidence can be excluded if it otherwise falls within an exclusionary rule of evidence. See: R. v. Mohan, supra, at para. 26.
Qualified Expert
Experience and Expertise
23A proposed expert witness must be shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify. See: R. v. Mohan, supra, at para. 27.
24An expert must not only be qualified generally but must also be qualified to express the specific opinion proffered. See: R. v. Orr, 2015 BCCA 88, at para. 67.
Independence and Impartiality
25Reliability concerns reach not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert's expertise and the extent to which the expert is shown to be impartial and objective. See: R. v. Abbey, supra, at para. 87.
26In White v. Abbott, the Supreme Court of Canada noted that an "expert's duty to the court [is] to give fair, objective non-partisan evidence." The Court also reiterated that a proposed expert "must be aware of this duty and be willing to carry it out." See: White and Abbott, supra, at para. 10.
27Cromwell J. in White v. Abbott, supra, at para. 34 stated that:
… a proposed expert's independence and impartiality goes to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the over-all cost benefit analysis which the judge conducts to carry out his or her gatekeeping role.
28The appropriate threshold at the admissibility stage is whether the expert understands that he or she owes a duty to the court to provide evidence that is fair, objective and non-partisan, and is willing to comply with that duty. The Supreme Court of Canada provided the following direction on the appropriate process:
Once the expert attests or testifies on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable and/or unwilling to comply with that duty. If the opponent does so, the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence.
See: White and Abbott, supra, at para. 48
29Furthermore, the Court noted that:
This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that the exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.
See: White and Abbott, supra, at para. 49.
Step Two
30The two step process outlined in Abbey distinguishes between pre-conditions to admissibility and the trial judge's performance of the "gatekeeper" function.
The inquiry into compliance with the preconditions to admissibility is a rules-based analysis that will yield yes or no answers. Evidence that does not meet all the preconditions to admissibility must be excluded and the trial judge need not address the more difficult and subtle considerations that arise in the "gatekeeper" phase of the admissibility inquiry.
The "gatekeeper" inquiry does not involve the application of bright line rules, but instead requires an exercise of judicial discretion. The trial judge must identify and weigh competing considerations to decide whether on balance those considerations favour the admissibility of the evidence.
See: Abbey, supra, at paras. 78-79.
31Legal relevance requires a "cost-benefit analysis" that considers the impact on the trial process of the admission of the evidence. Even if the evidence is logically relevant to a fact in issue, it may still be excluded if its probative value is outweighed by its prejudicial effect. See: R. v. Mohan, supra, at para. 18.
32Potential prejudice can arise from the likelihood that the proposed evidence would:
(1) confuse or confound the jury in its fact-finding mission; or
(2) overwhelm the jury by the "mystic" or "virtual infallibility" of the evidence; or
(3) mislead the jury in the sense that its effect on the jury is out of proportion to its reliability;
See: R. v. Mohan, supra, at para. 19.
33The benefit side of the cost-benefit evaluation requires judicial consideration of the "probative value" of the proposed opinion evidence and its reliability, as well as consideration of factors that affect the impartiality of the opinion-giver. See: R. v. Abbey, supra, at para. 87.
34The cost side addresses the risks and dangers posed by expert opinion evidence: prejudice, distraction of the court from the actual matters in issue, "overreaching", time (and volume of material), confusion, complexity of the material, ability to critically assess the opinion and material on which it is based, reliance on material which is unsworn and not available for or amenable to cross-examination. "… now the 'professional expert witness has emerged. Although not biased in a dishonest sense, these witnesses frequently move from impartiality generally associated with professionals to advocates in the case." See: R. v. D.D., supra, at para. 52; R. v. Abbey, supra, at para. 90.
35In White v. Abbott, supra at para. 16, it is observed that:
… the Court has responded to a number of concerns about the impact on the litigation process of expert evidence of dubious value. The jurisprudence has clarified and tightened the threshold requirements for admissibility, added new requirements in order to assure reliability, particularly of novel scientific evidence, and emphasized the role that judges should play as "gatekeepers" to screen out proposed evidence whose value does not justify the risk of confusion, time and expense that may result from its admission.
36P. M. Willcock J.A.in R. v. Orr, [2015] B.C.J. No. 366 at para. 72 wrote that:
Evidence explaining motives and behaviours is difficult to verify or refute by scientific means. For that reason, it may be very prejudicial. Any frailties in such evidence should be considered in addressing its admissibility rather than admitting the evidence and considering frailties to affect its weight: R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600. The gatekeeping role should be carefully exercised.
37The cases of R. v. Lewis, 1979 CanLII 19 (SCC) and R. v. Barbour are instructive when dealing with the issue of alleged motive and an expert's opinion as it relates to the issue of motive.
38In Lewis, supra, Dickson J. observed at page 10 that motive in the criminal sense means "ulterior intention." He then enunciated the following propositions regarding the law as it relates to motive at pages 10 through 14:
(1) As evidence, motive is always relevant and hence evidence of motive is admissible.
While evidence of motive is always relevant on the issue of intent or identity, motive must be evidenced by human acts and there are limits to the extent to which such acts may be introduced as motive: see R. v. Barbour, 1938 CanLII 29 (SCC), [1938] S.C.R. 465.
(2) Motive is no part of the crime and is legally irrelevant to criminal responsibility. It is not an essential element of the prosecution's case as a matter of law.
(3) Proved absence of motive is always an important fact in favour of the accused and ordinarily worthy of note in a charge to the jury.
Whether or not an accused was in financial straits and was being pressed by his creditors might bear on this particular proposition.
(4) Proved presence of motive may be an important factual ingredient in the Crown's case, notably on the issues of the identity and intention, when the evidence is purely circumstantial.
(5) Motive is always a question of fact.
(6) Each case will turn on its own unique set of facts. The issue of motive is always a matter of degree.
Dickson, J. expanded on this proposition as it related to the need to instruct a jury on the issue of motive.
39Duff C.J. at page 5 of Barbour, supra, wrote that:
If you have acts seriously tending, when reasonably viewed, to establish motive for the commission of a crime, then there can be no doubt that such evidence is admissible, not merely to prove intent, but to prove the fact as well. But I think, with the greatest respect, it is rather important that the courts should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties.
40In R. v. Orr, (supra), the Court, at para.70, highlights the need to address the sufficiency of the opinion evidence and determine whether it affords sufficient probative value to justify its admission.
Arguments Put Forward by Counsel and Findings by the Court
Step One – Mohan Preconditions
(i) Relevance
Area One: The travel claims submitted by Senator Duffy and paid by the Senate
41The claims analysis conducted by Mr. Grenon contained in his report of June 23, 2014 and filed as Exhibit #2 on the voir dire provides evidence of the particulars of every T64 travel claim submitted by Senator Duffy to Senate Finance.
42The Crown contends that the claims analysis in Mr. Grenon's report is logically relevant to (i) the fact that Senator Duffy's claims were paid by the Senate and that it provides particulars of every claim made; and (ii) an overall analysis of all compensation paid by the Senate to Senator Duffy as a result of the travel claims that he submitted.
(i) The fact that Senator Duffy's Claims were paid by the Senate
43The Crown contends that the seventy-seven NCR living expense claims submitted by Senator Duffy contained in trial Exhibit #2 and the thirteen travel expense claims submitted by Senator Duffy contained in trial Exhibit #6 constitute fraud and breach of trust. The fact of the claims is an essential element of the offences and the fact of payment of the claims is relevant.
44Mr. Grenon's claims analysis contained in the June 23rd report is relevant in that it provides evidence of payment to Senator Duffy by the Senate in response to the Senator's travel claim requests.
45Mr. Bayne, on behalf of Senator Duffy, admits that payment of all the relevant claims in connection with counts 1 through 20 was made by the Senate.
Payment of Senator Duffy's NCR Living Expenses Claims
46The Crown contends that Senator Duffy was not entitled to NCR living expenses since he did not reside outside the 100 kilometre radius from Ottawa that would allow him to make such claims and that such conduct amounts to the offences of fraud and breach of trust based on the fact that these claims relied on false and deceitful declarations that he was a primary resident of Prince Edward Island.
47The Crown asserts that Senator Duffy's NCR travel expense claims lie at the heart of this aspect of the case and that evidence of the fact and particulars of his NCR expense claims and the payment of those claims is relevant to the determination of this issue.
48A summary of the NCR living expense claims can be found at Table 6.4 (found at page 9 of 9 under the "Report Excerpt" tab of Mr. Grenon's June 23rd report.
49A summary of payments is found at Schedules 1.1, 1.2 and 1.3 of the report.
Payment of Senator Duffy's Travel Expense Claims (excluding NCR claims)
50The Crown contends that Senator Duffy improperly sought compensation for travel expenses in respect of the thirteen travel claims contained in trial Exhibit #6. The Crown alleges that in respect of each claim, Senator Duffy provided a false and deceitful certification that the travel – either in part or in whole – related to Senate business.
51The Crown states that these thirteen expense claims at issue are a critical component of this aspect of the case and that the facts and particulars of the thirteen travel expense claims and the fact and particulars of the Senate's payment of those claims is relevant to the overall determination of this aspect of the case.
52A summary of the thirteen travel claims is found at Table 3.1 (found "Revised Summary of Findings" tab of the June 23rd report).
53A detailed summary of payments on these travel claims is found in the spreadsheet under the "Specific Claims" tab of the June 23rd report and the tracking of the payments to Senator Duffy are revealed in Schedule 3.1 of the June 23rd report.
(ii) Overall analysis of all compensation paid by the Senate to Senator Duffy as a result of travel claims submitted
54Mr. Grenon's review went beyond the seventy-seven NCR living expenses claims contained in trial Exhibit #2 and the thirteen travel expense claims contained in trial Exhibit #6. He reviewed all of Senator Duffy's travel claims and reconciled the payment particulars. The Crown contends that this overall analysis is also relevant.
55Table 6.0 (found at p. 6 of 9 under the "Report Excerpt" tab of Mr. Grenon's June 23rd report) summarizes all of the expense claims and a detailed review and reconciliation is found at Schedule 1.2 of the June 23rd report. Schedule 1.3 provides further summary of the claims.
56The Crown submits that the global analysis set out in voir dire Exhibit #2 provides the relevant overall context within which to assess the issues before the court in this case. It demonstrates that 85 of the 215 expense claims submitted are at issue in the trial. The 85 claims are composed of the 77 NCR claims contained in trial Exhibit #2 and the 13 claims contained in trial exhibit #6. It is to be noted that 5 of the 13 claims in trial Exhibit #6 also include claims for NCR living expenses, meaning 8 of them seek only non-NCR travel expenses. The end result leaves 85 impugned claims.
57The Crown stresses that the total number of claims provides important context in which to evaluate the issues at trial and that the overall data supports the inference that the impugned claims were part of Senator Duffy's continued and deliberate effort to seek compensation to which he was not entitled.
58The Crown suggests that the overall numbers may (at the ultimate determination rather than at this stage of admissibility determination) negate the assertion that the impugned claims are wayward, outlying occurrences that cannot found criminal intent.
59The Crown contends that the overall data is particularly relevant to an assessment of breach of trust in that the existence of broader conduct in improperly seeking compensation is unquestionably relevant to consideration of the degree to which Senator Duffy departed from the standard of care entrusted to him.
60Mr. Bayne directs the court to the actual counts before the court and notes that 90% of Senator Duffy's travel-related claims are not in issue before the court and yet are the subject of Mr. Grenon's compendious report and schedules. This data is then cross-referenced against Senator Duffy's personal banking and credit card records to create a mass of accounting detail most of which has no relation to the specific charges before the court.
61Mr Bayne states that the only T-64 claims in issue in this trial are the NCR living expense claims represented by counts 1 and 2 and the 13 travel-related claims represented by counts 3 through 20. The factual issues relating to those counts and claims are respectively, whether the primary residence designation under the then-existing Senate rules and policies entitled Senator Duffy to NCR living expenses was criminal and whether the 13 travel-related claims made under then-existing Senate policy was criminal.
62Counsel for Senator Duffy maintains that the statistics in and of themselves do not prove anything about whether the specific claims in issue are crimes or not and that the dollar value is insufficiently probative in the sense of legal relevance to the issues and counts before the court.
63I agree with the Crown that Mr. Grenon's global analysis provides important context in which to evaluate the issues at trial including the inference that the impugned claims made by Senator Duffy were part of a continued and deliberate effort by him to seek compensation to which he was not entitled. Furthermore, the overall data picture may be relevant to the assessment of the breach of trust issues.
64In arriving at the aforementioned conclusion I would highlight the Crown's observations at paragraph 58 of these reasons, namely, that the overall numbers may (at the ultimate determination stage rather than at the stage of admissibility determination) negate the assertions being advanced by the Crown.
Area 2: Analysis of Senator Duffy's Financial Practices
65The Crown contends that the analysis of Senator Duffy's personal financial practices (including analysis of his CRA records) is relevant to his motive to have committed the alleged offences before the court. This analysis is contained in Mr. Grenon's October 28 2013 report which involves Senator Duffy's RBC bank account activity for four and one-half years compared against his 2011 Income Tax return (voir dire Exhibit #4) and his September 30, 2014 report which deals with an analysis of Senator Duffy's Income Tax Information for 2009 to 2012 (voir dire Exhibit #5).
66While motive is not an essential element of any offence, it is always relevant. In the case at bar, the Crown contends that Senator Duffy had a financial motive to commit the alleged offences and therefore his overall financial practices are relevant.
67The Crown submits that Mr. Grenon's analysis reveals that Senator Duffy was in a difficult financial situation and that Senator Duffy continually spent more money than his income supported. To sustain his spending, Senator Duffy accessed additional funds by remortgaging his home in Kanata and drawing on his line of credit.
68Schedule 3.0 of the October 28th report provides a visual representation of the aforementioned transactions.
69The Crown contends that Senator Duffy's refinancing of his home in Kanata and his use of his line of credit provides evidence of the existence of financial need. Furthermore, it is submitted that this financial need is a motive for the offence of fraud and financially driven breach of trust and is therefore relevant.
70The Crown asserts that at this stage of these proceedings it is essential to bear in mind that evidence of motive need not establish anything. The question to keep in mind is whether the evidence is relevant in the sense that it makes a fact in issue more or less likely to be true.
71The Crown states that Mr. Grenon's analysis of Senator Duffy's financial practices and situation provides evidence of financial need. Such evidence makes a fact in issue – i.e., Senator Duffy's motive to commit the financial crimes alleged – more likely to be true.
72The Crown contends that Mr. Grenon's opinion that Senator Duffy continually overspent and relied on mounting debt to finance his lifestyle can be used as evidence of Senator Duffy's motive to commit the offences alleged. It is relevant to the assessment of the mens rea. The issue at this stage is the admissibility of the evidence of motive, not its ultimate weight.
73The Applicant advances the position that the Respondent is advocating a "strictly relevant" and "seriously tending" test in respect to the admissibility of motive evidence relying on R. v. Barbour, supra. The Crown maintains that the evidence regarding motive need only be relevant and carry probity that outweighs its prejudicial effect.
74The Crown's position is that in R. v. Barbour, supra, the Court concluded that the impugned evidence was inadmissible simply because it was irrelevant.
75The Crown takes the position that Mr. Grenon provided an opinion that Senator Duffy overspent. He did not provide an opinion that Senator Duffy had a motive to commit the offences. There is a meaningful difference between the two. The Crown contends that Senator Duffy's motive to commit the offences alleged is an inference that is available (a determination to be considered at the conclusion of the case rather than at this stage) on the evidence of Mr. Grenon considered with the evidence as a whole.
76The Crown draws to the court's attention that the expert opinion evidence referred to in R. v. Orr, supra, and R. v. Klymchuk, supra, can be distinguished from the present case because those experts provided opinion evidence that the accused in those cases had a motive to do the things alleged whereas in the case at bar, Mr. Grenon did not testify that Senator Duffy had a motive to commit any of the offences with which he is charged.
77The Crown emphasizes that at this stage it is strictly the admissibility of the evidence that must be determined and not its ultimate weight.
78Mr. Bayne points out that the underlying voluminous documentation examined by Mr. Grenon to support his analysis and opinion in exhibits #4 and #5 is seriously incomplete and contains significant financial unknowns that produce prejudicial innuendo that is unacceptable and inadmissible.
79In fact, Mr. Grenon, in his evidence, indicated the importance of completeness of financial information in the preparation of a reliable accountant's/auditors report.
80In addition to Senator Duffy's incomplete financial information, Mr. Grenon acknowledged that he had no information as to Heather Duffy's finances over the years in question or the market value of the PEI property.
81Mr. Bayne expresses his fear and concern that the criminal trial on the charges relating to his designation under Senate policies and rules of a "primary residence in the Province or Territory I represent" for the "purpose of the Twenty-Second Report", relating to his thirteen specific travel expense claims and whether they were in part or in whole in relation to Senate business/Parliamentary functions/public business/partisan activities, and relating to his exercise of exceptionally broad assigned administrative discretion over the use of his office expense budget for carrying out his Parliamentary functions will be turned into an uncircumscribed and rambling special inquiry into the financial, banking, credit use and income tax reporting of his client.
82Mr. Bayne contends that there is no satisfactory evidentiary foundation for Mr. Grenon's opinion that Senator Duffy overspent beyond his means so as to found an alleged motive to commit the crimes he is facing.
83The following factors should be kept in mind when one is considering the overspending opinion grounding evidence of alleged motive:
(i) Senator Duffy always had sufficient lawful means and resources to pay his debts;
(ii) Senator Duffy was never in financial straits and being pressed by his creditors;
(iii) The Royal Bank provided and upgraded the lawful credit available to Senator Duffy through lines of credit and refinancing his mortgage;
(iv) There is no indication that Senator Duffy was in default or arrears in payment to any bank, credit card provider, or tax department.
(v) There is no evidence of any foreclosure or bankruptcy proceedings or other forms of legal action by any creditor against Senator Duffy;
(vi) There is no evidence of the income, assets or inheritances of Heather Duffy and what impact they would have on the family's overall financial position;
(vii) There is incomplete evidence as to the state and amount of Senator Duffy's inheritance(s);
(viii) There is evidence that Senator Duffy has real estate in PEI with significant equity;
(ix) There is evidence that many Canadians debt finance their lifestyle by using lines of credit;
(x) There is evidence that Senator Duffy incurred exceptional expenses in renovating his PEI residence during the four-year period of this accounting analysis;
(xi) There is evidence that it is prudent financial management to pay down higher-rate debt such as a line of credit with lower-rate debt in the form of a mortgage.
84Mr. Bayne directs the court to consider that the evidence does not suggest that Senator Duffy was spending beyond his lawful means and that he was not in financial difficulty. In fact, Senator Duffy was in good credit standing.
85Counsel for Senator Duffy further submits that the Grenon opinion lacks "probative value" on the issue of motive and should be held inadmissible. In fact, Mr. Bayne notes that it not only lacks probative value, it is actually contrary to the evidence of ample lawful means and regular resort to lawful means. There is no proof of evidence "seriously tending" on a "reasonable" view of the financial evidence to show financial distress or being pressed by creditors. The evidentiary foundation proves the contrary.
86It is my position that the evidence tendered under the heading, Analysis of Senator Duffy's Financial Practices, does have probative value as to the issue of possible motive at this stage of the proceedings. I am very mindful of the factors raised by Mr. Bayne when determining the ultimate weight to be assigned to this evidence.
87I am aware of Mr. Bayne's expressed concern that the financial practices of Senator Duffy will overshadow issues such as primary residence etc. The evidence will be accorded proper weight and dealt with accordingly.
Area 3: Analysis of Senate contract funds procured and distributed by Senator Duffy to Gerald Donohue
88The Crown submits that Senator Duffy used his position of trust to procure $65,177.00 in Senate funds from his office budget by falsehood and deceit and that this conduct constitutes the offences of fraud and breach of trust.
89The Crown contends that Mr. Grenon's analysis of Senate contract funds procured and distributed by Senator Duffy and Gerald Donohue – as evidenced in his April 1 2014 report (voir dire Exhibit #6) – is relevant in several respects.
90The April 1st 2014 report provides a comprehensive summary and analysis of the banking records of Maple Ridge Media Inc. and Ottawa ICF. This includes reconciliation as comprehensive as the records would permit of the source and use of funds through the Donohue businesses. The reconciliation was based on the companies' bank records, which are summarized in Schedules 2.0 and 2.1 of the April 1, 2014 report.
91The Crown argues that notwithstanding the manner in which the money was procured, the way in which Senator Duffy dealt with the money after he procured it constitutes fraud and breach of trust. This contention is based on:
(i) Money that has been accounted for:
Senator Duffy's improper use of the money to pay persons and companies who had not performed the nature of the work certified by Senator Duffy and approved by the Senate and money that was given to people who performed personal services and favours for Senator Duffy.
(ii) Money that has not been accounted for:
As a result of Senator Duffy's improper handling of the money, a significant amount remains unaccounted for.
92The Crown maintains that the source and use analysis contained in the April 1, 2014 report provides evidence that is relevant to both the improper use of the money and the unaccounted money referenced in the preceding paragraph.
Regarding money that has been accounted for:
93Table 1.0, found at page 4 of the April 1st report, provides a list of payments to beneficiaries of the fund. It shows a total of $25,773.44 in payments. The evidence at trial indicates that there was also a payment to Iain MacDonald in the amount of $7,350.00 bringing the total payments to $33,123.44.
94The Crown's contention is that Senator Duffy improperly and illegally spent money from the funds paid by the Senate to Maple Ridge Media Inc. and Ottawa ICF. His accounting to the Senate does not reconcile with his actual use of money. It is suggested that he used some of the funds to pay people for things that were personal in nature and he paid people who had no expectation or desire to be paid.
95The Crown submits that the aforementioned evidence falls squarely within the "use" element of Mr. Grenon's source and use analysis and that this evidence is relevant to the court's assessment and determination of this aspect of the case.
96The Crown maintains that the source and use analysis is relevant in that it assists in the determination of how the money was spent and whether it constitutes an offence as charged.
Regarding that money that has not been accounted for:
97Mr. Grenon's April 1st 2014 report reveals that approximately $30,000.00 procured by Senator Duffy is unaccounted for. The Crown contends that how the unaccounted funds were allowed to be dealt with relate to the offences of fraud and breach of trust.
98The Crown submits that Senator Duffy orchestrated the procurement of Senate money into the hands and control of Gerald Donohue. In turn, this action resulted in the unknown destination of a significant amount of public funds. The Crown contends that this is relevant to the issue of whether the creation and maintenance of the Senator Duffy/Gerald Donohue reserve fund constitutes fraud and breach of trust.
99The Crown contends that Mr. Grenon's analysis of the accounts through which Senator Duffy and Mr. Donohue moved the Senate money is relevant in two ways. Firstly, it provides a means by which to trace and assess the use of Senate money in the Donohue accounts that can be accounted for and secondly, it constitutes evidence that a significant proportion of the Senate contract cannot be accounted for. In both cases, the evidence is relevant.
100Mr. Bayne characterizes Exhibit #6 as a preliminary report that does not portray a full and accurate picture and therefore cannot be relied upon by the court to base factual findings and so remains inadmissible.
101Mr. Bayne directs the court's attention to the fact that this report was as an investigative aid to the ongoing investigation and that Mr. Grenon described observations as preliminary findings that could be impacted by additional information brought to his attention.
102In Kylmchuk, supra, at para. 37, Doherty, J.A., discussed the difference, observed by Charron. J.A., in Ranger, supra, between material that "can play a valuable role in the investigation of crime by directing the police to fruitful areas of investigation" but which "cannot, however, be admitted as evidence under the guise of expert opinion".
103Counsel for Senator Duffy submits that it would be dangerous and prejudicial to the accused to rely an incomplete and preliminary investigative report for the judicial purpose of finding facts in a criminal trial.
104To illustrate the shifting dynamics of Mr. Grenon's report, one need only recall that during his testimony-in-chief, a cheque in the amount of $7350.00 to Iain MacDonald came to light.
105Mr. Bayne also takes objection to the characterization of payments to various individuals as for the benefit of Senator Duffy when in fact those individuals gave evidence that they were paid for work done in respect of Senator Duffy's Senate business and not for his personal benefit.
106Mr. Bayne puts forward the position that the preliminary and incomplete financial information in Exhibit #6 regarding the unaccounted for funds creates the prejudicial speculative innuendo that Senator Duffy received, directly or indirectly, the personal benefit of said funds. Furthermore, he submits that incomplete information is potentially dangerously misleading and never a secure foundation for judicial fact-finding.
107He further contends that the reason there are unaccounted for funds is because the Crown has failed to call the key non-expert witness who can account for these funds, namely, Gerald Donohue.
108I find this suggestion unfair to the Crown. It has been brought repeatedly to the court's attention throughout these proceedings that Gerald Donohue has been experiencing significant health issues that has made his appearance to give evidence impossible. It is hoped that in the fullness of time Gerald Donohue will be able to shed light on the "unaccounted funds" that were directed to Maple Ridge Media (MRM) and Ottawa ICF (ICF), companies that Mr. Gerald Donohue has/had a connection.
109I find that the flow of cash through the aforementioned companies is most relevant to the case at bar.
(ii) Necessity
110The legal standard for admissibility as set out in R. v. Mohan, (supra) at para. 22 has been set out earlier in these reasons but I believe it bears repeating:
This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury."
111The Crown contends that Mr. Grenon's evidence meets the necessity requirement in that he has performed a task that is likely outside the experience and knowledge of a layperson. This contention is based on:
(i) the sheer volume of work necessitated by the nature and extent of the records requiring Mr. Grenon to expend some 420 hours of work on his analysis; and
(ii) the skill and expertise he employed in performing the analysis.
112The Crown referred the court to a number of cases to demonstrate that the work product of this nature has historically been relied upon by courts when considering vast amounts and different sources of financial information.
113In R. v. Khan, 2014 ONSC 6488, at para 91, the Court observed that:
Opinion evidence from a qualified forensic accountant is commonplace in large complex fraud prosecutions. The form that opinion takes is often a series of charts or summaries or spread-sheets that sum up the effect of a mass of underlying business records. It is simply impractical to expect the trier of fact to engage in a time consuming analysis of each underlying document and so the assistance of an expert is necessary. As with any expert opinion, its weight depends on proof of the underlying facts/documents on which the expert relies. Accordingly, the better practice is for the Crown to tender the underlying documents in evidence, together with the expert's opinion, so that they are available for cross-examination and so that the expert is not relying on hearsay. See: R. v. Scheel, 1978 CanLII 2414 (ON CA), 42 C.C.C. (2d) 31 (Ont. C.A.); R. v. Lavallee, 1990 CanLII 95 (SCC), 55 C.C.C. (3d) 97; R. v. Giesbrecht (1994), 91 C.C.C. (3d) (S.C.C.).
114The Ontario Court of Appeal in R. v. Scheel, supra, at para. 13 stated that:
We are all of the view that summaries, based on evidence which has been properly admitted, were admissible to assist the jury in understanding the entire picture represented by voluminous documentary evidence. The usefulness of the summaries depended entirely, however, upon the acceptance by the jury of the proof of the facts upon which the summaries were based.
115The Court in Scheel, supra, at para. 18, addressed the issue whether the original data which underlies the summaries must also be adduced at trial by referring to the following passage in Wigmore:
Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements – as, the net balance resulting from a year's vouchers of a treasurer or a year's accounts in a bank leger – it is obvious that it would often be practically out of the question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in the shape of testimony of a competent witness who has perused the entire mass and will state summarily the net result. Such a practice is well established to be proper.
Most courts require, as a condition, that the mass thus summarily testified to shall, if the occasion seems to require it, be placed at hand in court, or at least be made accessible to the opposing party, in order that the correctness of the evidence may be tested by inspection if desired, or that the material for cross-examination may be available. (Wigmore 4th ed. Vol. IV at p. 535)
116Mr. Grenon comprehensively reviewed, summarized and analyzed a vast amount of data comprised of:
(i) expense claims submitted by Senator Duffy to the Senate;
(ii) the Senate's FreeBalance financial statements;
(iii) Senator Duffy's personal bank records;
(iv) Senator Duffy's American Express records;
(v) Senator Duffy's personal and corporate Canada Revenue Agency filings;
(vi) Banking Records of Maple Leaf Media Inc. and Ottawa ICF Inc.
117Mr. Grenon's review and analysis went well beyond simple addition. He employed his skill and expertise in order to:
(i) reconcile data in order to prove the existence and amounts of payment by the Senate to Senator Duffy in the context of his 215 expense claims. This involved experience and skill in interpreting the various records, including the Senate's FreeBalance financial statements;
(ii) perform a source and use analysis of Senator Duffy's personal finances, including comparisons to his tax filing;
(iii) perform a source and use analysis of Senate funds flowing through the accounts of Maple Ridge Media and Ottawa ICF;
(iv) perform a tracing analysis of funds flowing from Nigel Wright to Senator Duffy to the Receiver General of Canada
118The Crown contends that the evidence in the form adduced through Mr. Grenon meets the necessity requirement owing to the sheer volume of material and the effort required to arrive at his observations. As held in Khan, supra, "it is simply impractical to expect the trier of fact to engage in a time consuming analysis of each underlying document and so the assistance of an expert is necessary."
119Furthermore, the Crown observes that notwithstanding the sheer impracticality of time, Mr. Grenon's evidence also meets the necessity requirement given the skill and expertise required to undertake the analysis. Mr. Grenon's proficiency with banking records and procedures, tax records, and his ability to interpret the Senate FreeBalance reports are essential for the analysis he undertook. The Crown submits that such skill and expertise is beyond that of a layperson.
120Accordingly, the Crown contends that the precondition of necessity has been established for each area of Mr. Grenon's evidence.
121Mr. Bayne submits that Mr. Grenon's evidence is not necessary for the proper judicial determination of the issues before the court. He draws the court's attention to para. 21 of Mohan, supra, where the court observed that, "If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary."
122Helpfulness is not enough. The Crown must demonstrate actual necessity to the trial court that the voluminous accounting-detail in Area 1 is necessary. Mr. Bayne contends that the Crown has not met its onus with respect to necessity. Furthermore, he states that the court does not need the "overreaching" mountains of accounting details of claims not before the court and reconciliations thereof with volumes of Senator Duffy's personal banking, credit card and mortgage records and documents in order to properly do its judicial job and form its own conclusions.
123Mr. Bayne concedes that there is one narrow and "properly circumscribed" aspect of Mr. Grenon's evidence in the Area 1 (Travel) Claims Analysis that may be logically and legally admissible as well as necessary to the actual claims and counts before the court as set out in Tables 6.4 and 3.1, supra, and at page 9-9 on the "Revised Summary of Findings page of Exhibit #2 on the voir dire.
124I find the necessity pre-condition has been met for the reasons put forward by Crown counsel.
(iii) Absence of an exclusionary rule
125The Crown takes the position that there are no other exclusionary rules engaged by the nature of Mr. Grenon's evidence.
126Mr. Bayne does not dispute this fact.
(iv) Properly qualified expert
127During cross-examination, counsel for Senator Duffy explicitly took no issue with Mr. Grenon's methodology, and implicitly took no issue with Mr. Grenon's experience and expertise in the areas in which he testified. The Crown contends that given Mr. Grenon's education, professional experience and previous designations by other courts as an expert witness in the area of forensic accounting, he is amply qualified to provide the evidence given on the voir dire.
128Mr. Bayne cross-examined Mr. Grenon regarding his independence and impartiality.
129Throughout his testimony, Mr. Grenon was unequivocal as to his duty to the court to give fair, objective and non-partisan evidence regardless of the party retaining his services thereby complying with the threshold requirements for admissibility as addressed in paras. 48 and 49 of White v. Abbot, supra.
130I am satisfied that Mr. Grenon is qualified to give expert opinion evidence as a forensic accountant. Likewise, I find that he approached his role in an impartial manner and that he was not influenced by his employment position or by the RCMP.
131However, there remains the question as to whether Mr. Grenon's expertise encompasses offering an opinion that Senator Duffy overspent beyond his means thereby providing evidence of motive.
132There was no evidence offered to qualify him as an accountant expert in the borrowing and debt-use of Canadians or what would or would not be classified as a normal level of debt usage.
133I am satisfied that Mr. Grenon's overall expertise in forensic accounting would allow him to give a general opinion as to Senator Duffy's overall spending pattern. However, at the end of the day, all the circumstances of Senator Duffy's financial situation will be weighted to determine the use to be made of Mr. Grenon's evidence.
Conclusion Regarding Step One
134Based on the aforementioned submissions of the Crown, the Crown submits that Mr. Grenon's evidence satisfies the four Mohan preconditions and that Step Two of the Gatekeeper function should be engaged.
135Mr. Bayne has drawn his concerns to the court to various aspects of the Mohan preconditions to support his position that certain areas of evidence be excluded at this stage of the proceedings.
136I am of the view that the Crown has provided a sufficient foundation for the court to allow the proffered expert evidence subject to exercising its gatekeeper function.
Step Two – The Gatekeeper Function
137A judge exercising his/her duty as a gatekeeper is required to identify and weigh competing considerations in play and decide whether on balance of those considerations favour the admissibility of the evidence.
Cost-Benefits Analysis
138In R. v. Abbey, supra, the Court provides very useful commentary regarding the issue of cost-benefit analysis at paras. 87-89 ("benefit") and paras. 90-92 ("cost"):
[87] The "benefit" side of the cost-benefit evaluation requires a consideration of the probative potential of the evidence and the significance of the issue to which the evidence is directed. When one looks to potential probative value, one must consider the reliability of the evidence. Reliability concerns reach not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert's expertise and the extent to which the expert is shown to be impartial and objective.
[88] Assessment of the reliability of proffered expert evidence has become the focus of much judicial attention, particularly where the expert advances what is purported to be scientific opinion: see, for example, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993); J.-L.J. at paras. 33-37; S. Casey Hill et al, at para. 12:30.12.30; Bruce D. Sales & Daniel W. Shuman, Experts in Court Reconciling Law, Science and Professional Knowledge (Washington, D.C.: American Psychological Association, 2005).
[89] In assessing the potential benefit to the trial process flowing from the admission of the evidence, the judge must intrude into territory customarily the exclusive domain of the jury in a criminal jury trial. The trial judge's evaluation is not, however, the same as the jury's ultimate assessment. The trial judge is deciding only whether the evidence is worthy of being heard by the jury and not the ultimate question of whether the evidence should be accepted and acted upon.
[90] The "cost" side of the ledger addresses the various risks inherent in the admissibility of expert opinion evidence, described succinctly by Binnie J. in J.-L.J. at para. 47 as "consumption of time, prejudice and confusion". Clearly, the most important risk is the danger that a jury will be unable to make an effective and critical assessment of the evidence. The complexity of the material underlining the opinion, the expert's impressive credentials, the impenetrable jargon in which the opinion is wrapped and the cross-examiner's inability to expose the opinion's shortcomings may prevent an effective evaluation of the evidence by the jury. There is a risk that a jury faced with a well presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury: J.-L.J. at para. 25.
[91] In addition to the risk that the jury will yield its fact finding function, expert opinion evidence can also compromise the trial process by unduly protracting and complicating proceedings. Unnecessary and excessive resort to expert evidence can also give a distinct advantage to the party with the resources to hire the most and best experts – often the Crown in a criminal proceeding.
[92] All the risks described above will not inevitably arise in every case where expert evidence is offered. Nor will the risks have the same force in every case. For example, in this case, I doubt that the jury would have difficulty critically evaluating Dr. Totten's opinion. There was nothing complex or obscure about his methodology, the material he relied on in forming his opinion or the language in which he framed and explained his opinion. As when measuring the benefits flowing from the admission of expert evidence, the trial judge as "gatekeeper" must go beyond truisms about the risks inherent in expert evidence and come to grips with those risks as they apply to the particular circumstances of the individual case.
139The Crown contends that the probative value of Mr. Grenon's evidence exceeds its prejudicial effect and that the evidence is probative of issues that are significant in this case.
140The Crown submits that consumption of court time is not of any particular note in this case, especially if the evidence on the voir dire is applied to the trial proper.
141The Crown contends that the forensic accounting evidence in this application does not bear prejudice that outweighs its probative value. Likewise, the Crown suggests that the evidence is such that it should not result in confusion.
142The Crown points out that the court is in a position to make an effective and critical assessment of the evidence in question. Forensic accounting does not fall into the category of evidence that is novel or disputed.
143The Crown recognizes that the admission of Mr. Grenon's evidence may add additional time to Senator Duffy's cross-examination but that in itself is no reason to exclude the evidence.
144The Crown recognizes that the court is well positioned to evaluate and effectively ascribe weight to the evidence in the context of the entirety of the case.
145Mr. Bayne repeatedly stresses the very important role a judge must exercise when dealing with the gatekeeping function.
146Counsel reminds the court that where the evidence of Mr. Grenon offers expert opinion in support of alleged motive of the accused to commit the crime, it should be especially wary about admitting such evidence.
147In R. v. Orr, supra, at para. 72, the BC Court of Appeal wrote:
Evidence explaining motives and behaviour is difficult to verify or refute by scientific means. For that reason, it may be very prejudicial. Any frailties in such evidence should be considered in addressing its admissibility rather than admitting the evidence and considering frailties to affect its weight: R. v. J.-L.J., 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600. The gatekeeping role should be carefully exercised.
148In the case at bar, Mr. Bayne observes that the Crown's argument based on Mr. Grenon's "overspending" opinion is that Senator Duffy's resort to debt financing … provides evidence of the existence of his financial need. "Financial need" or "financial difficulty" says the Crown, "is a clear motive for the offence of fraud and financially driven breach of trust." Mr. Bayne contends that Mr. Grenon's "overspending" opinion is not in fact based upon, nor does it provide evidence of, financial need or difficulty so as to motivate resort to crime. Additionally, Mr. Grenon's opinion lacks the required "seriously tending", probative value of financial difficulty required even of non-expert evidence much less presumptively inadmissible expert opinion evidence. Mr. Grenon's opinion is actually nothing more than his 'educated guess' that Senator Duffy was "overspending" beyond his lawful means so as to motivate criminal activity. When carefully and cautiously scrutinized at the gatekeeper stage, it is argued that Mr. Grenon's "overspending" opinion grounding evidence of motive is revealed as contrary to the actual evidence and is inadmissible.
149Counsel for Senator Duffy concludes that the proffered opinion to possible motive is "insufficient evidence upon which to afford it sufficient probative value to justify its admission."
150Justice Watt in M.C., 2014 ONCA 611 also stated that at the gatekeeper stage, judicial assessment of "probative value" of the opinion offered is critical.
151Mr. Bayne maintains that if Mr. Grenon's evidence as it relates to some or all of the three contested areas has survived to the gatekeeping stage, unless it is demonstrated to be "sufficiently probative" of facts actually in issue in the case, the appellate authorities direct that it should be ruled inadmissible. Even if bearing some probative value, the evidence of Mr. Grenon remains inadmissible and should be held to be so at the gatekeeper stage where the costs of the evidence (its prejudicial effect, its overreaching, its distraction from the real issues before the court, its usurping of the trial judge's role and ability to draw his or her own inferences and conclusions, its consumption of additional time – as in the use of the expert evidence to cross-examine the accused) outweigh the benefits of the evidence.
152Mr. Bayne contends that at the gatekeeping stage, the inquiry is whether the proffered mass of accounting detail relating to travel claims not before the court has sufficient probative value (i.e. is "legally relevant") to overcome the presumption of inadmissibility of such evidence and in this case it fails such careful scrutiny.
153Furthermore, counsel points out that Mr. Grenon's evidence is the type of overreaching, legally irrelevant, insufficiently probative and prejudicial expert evidence against which Mr. Justice Doherty warned about in Abbey, supra and reasserted in White v. Abbott, supra. The trial judge must fix a cautious delineation of the scope of proposed expert evidence to prevent against overreaching by expert witnesses. Boundaries must be set, experts cannot be permitted to simply conduct their own vast inquiry and expect to be able to offload it onto a court of record without careful judicial scrutiny as to admissibility. The scope of expert evidence must be delineated with exactitude and be followed with strict adherence. Mr. Bayne concludes that Mr. Grenon's evidence fails the careful legal relevance versus prejudice analysis at the gatekeeper stage mandated by Abbey and White and is a classic example of overreach far beyond the properly prescribed scope of legal relevance. Mr. Bayne further contends that Mr. Grenon's compendious global analysis in Area One represents inadmissible overreach.
154This submission is subject to Mr. Bayne's exception as noted in para. 2 and 3 of these reasons.
155I find that the evidence tendered is probative and is not overreaching.
156Mr. Bayne maintains his "overreaching" argument as it pertains to Area 2 – Senator Duffy's financial practices and position.
157I disagree.
158Mr. Bayne stresses that the evidence relating to Area 3 - Senate contract funds procured and distributed by Senator Duffy and Gerald Donohue should not be admitted since it is significantly incomplete and it results in prejudicial innuendo that Senator Duffy must have been the personal beneficiary of the unaccounted for funds. Moreover, it is said that Mr. Donohue is in the best position to give this evidence. Accordingly, it is suggested that the court use its gatekeeping role to prevent this evidence from being admitted to prevent undue prejudice.
159I recognize certain shortcomings with respect to the completeness in this area but I do not find that the evidence amounts to prejudicial innuendo. In fact, there may be any number of possible explanations as to the unaccounted funds. Whether Mr. Gerald Donohue is in a position to provide evidence at trial is still unknown.
160Counsel for Senator Duffy repeats his concern about Mr. Grenon's connection with the RCMP and the possibility that he may have allowed himself to become an advocate for the police thereby triggering the exclusion of his evidence at the gatekeeping stage of this application.
161I find no merit in this suggestion.
Conclusion Regarding Step Two
162The Crown takes the position that all the areas of evidence in dispute satisfy the gatekeeping analysis performed at step-two of the admissibility analysis.
163The Defence takes the position that the court should exercise its gatekeeping function and rule inadmissible the evidence as it pertains to Area 1 with the cautiously delineated and properly circumscribed area referred in these reasons and all the evidence with respect to Areas 2 and 3.
164I accept the position of the Crown with respect to the gatekeeping function in this matter and hereby admit the evidence as follows:
Result
Area One – The travel claims submitted by Senator Duffy and paid by the Senate:
The amounts paid in respect to Senator Duffy's NCR living expense claims and the 13 specific travel related claims that are before this court for adjudication as set out in Tables 6.4 and 3.1 at page 9-9 and on the Revised Summary of Findings Page, respectively, of Exhibit 2 on the voir dire are admitted as well as the underlying data.
Particulars surrounding the 77 claims for NCR living expenses submitted by Senator Duffy are admitted.
Area Two – Senator Duffy's financial practices and position:
Evidence with respect to this heading is admitted.
Area Three – Senate contract funds procured and distributed by Senator Duffy and Gerald Donohue:
Evidence with respect to this heading is to be admitted.
Area Four – The payment of $90,000.00 by Nigel Wright to Senator Duffy to the Receiver General of Canada:
On consent, this evidence will be admitted.
Released: To counsel on November 10, 2015
In court on November 19, 2015
Signed: "Justice Charles H. Vaillancourt"