WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

ONTARIO COURT OF JUSTICE (East Region)

Her Majesty the Queen v. J.V.

Before: Justice David M. Paciocco – Ottawa, ON

Decision

Released: December 21, 2015

Counsel:

• Ms. M. Cunningham for the Crown
• Ms. G. Castel-Trudel for the Accused, J.V.

Decision

Paciocco J.

Background

[1] The Crown is seeking an order for a dangerous offender/long-term offender assessment of the accused, pursuant to section 752.1 of the Criminal Code. The Crown seeks to use the report generated by that assessment to determine whether to seek the section 752.4 consent of the Attorney General to bring a dangerous offender proceeding. If the consent of the Attorney General is obtained, that report would then be available to the Court under section 752.1 as evidence in the dangerous offender application.

[2] Section 752.1 provides:

752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of the person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1

(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.

(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.

The Issue

[3] The accused consents to the conduct of a section 753.1 assessment. He objects, however, to the appointment of the expert proposed by the Crown, Dr. Scott Woodside, and requests that this Court appoint Dr. John Bradford.

[4] The Crown urges that the defence is not entitled to input into the person who will be designated to perform the assessment. Relying on the decision in R. v. K.C. (unreported), (3 November 2015), (Ont. S.C.J.), the Crown urges that it is entitled to nominate the assessor, with the only vetting by the Court permitted under section 752.1 being into "whether the proposed expert can perform the function contemplated by section 752.1."

Crown's Arguments

[5] The Crown argues that an interpretation of section 752.1 that denies defence counsel the right to participate in the selection of the expert follows from the structure and language of the section. Specifically, the application under section 752.1 is a Crown application, and the Crown is responsible for the time-line, being the only party competent to apply for an extension under section 752.1(3).

[6] The Crown further urges that it is sensible to deny the defence a right of participation because of the litigation disadvantage that would ensue if the Crown is not satisfied with the section 752.1 report. If the Defence is dissatisfied with a section 752.1 opinion, it is free to make the tactical choice to participate in, and secure, a second opinion. On the other hand, while the Crown is free to retain someone to do the same, the accused could refuse to participate. The only way the Crown can compel co-operation of the accused in an assessment by its chosen expert is to enable the Crown to choose the section 752.1 witness.

Court's Analysis

[7] I disagree with the Crown. The law does not provide it with the exclusive opportunity to choose the expert that is going to be appointed.

[8] It is true that section 752.1 is a Crown application, and that the report is sought in aid of a proceeding brought by the Crown. The language of the provision, however, is flatly inconsistent with an interpretation that impels the judicial appointment of any competent expert chosen by the Crown. Section 752.1 is explicit in requiring that the offender be remanded into the custody of "a person designated by the court." The word "designated" means "to appoint to an office or function": Oxford English Dictionary (2nd ed.), (Oxford, U.K.; Oxford University Press, 1996). The denotation of the term is that the person designated is a court appointment, in other words, an expert chosen for appointment by the court. Had Parliament intended the judge's role to be nothing more than to assess the competence of the Crown's chosen appointment, it could easily have said so, but it did not.

[9] Indeed, prior to the amendments to the dangerous offender provisions in 1997, the "remand for assessment" provision, section 755, called in subsection (2) for two assessors, directing that, "One of the psychiatrists referred to in subsection (1) shall be nominated by the prosecution and one shall be nominated by the offender." This predecessor provision not only illustrates the kind of language that signals that the prosecution has the right to nominate an assessor, it supports the inference that when the decision was made to amend this provision to require only one assessment, that assessor was meant to be designated by neither of the parties, but rather by the court.

Rationale for Court Appointment

[10] If there is going to be but one appointed expert, there is sense in requiring a court to designate that expert. Most obviously, doing so enhances the appearance of justice, since any concern that the appointment has been made to secure a litigation advantage is set aside. If that witness is perceived to be a neutral witness there is an increased likelihood that only one expert witness will ultimately be required at the hearing.

[11] Second, appointing the assessing expert diminishes the insult that a court-ordered assessment of the offender does to the offender's right to silence. It is one thing to remove the right to silence and the right not to have an adverse inference drawn from silence in order to arm the presiding judge with expert information to assist in evaluating the dangerous offender application made by the Crown. It is quite another to remove that protection to enable the Crown to support a dangerous offender application with the expert of its choosing.

[12] I am therefore not moved by the Crown arguments. It does not follow from the fact that section 753.1 is a Crown application that the Crown should be the one to choose the expert. There is nothing unusual in having a party bring an application, with the court making the ultimate decision, in this case, as to who it will designate.

Addressing Crown's Structural Arguments

[13] Nor does the fact that the Crown is the only party authorized to ask for an extension under section 753.1(3) alter this. Its exclusive authority to apply for an extension is not an indicator that it controls everything about the process. The section gives the right to apply for an extension to the Crown alone simply because there is no point in Parliament giving anyone else the right to ask for an extension. The Crown, as the party seeking to bring the dangerous offender application, is the only one who would realistically want such an extension.

[14] Finally, section 753.1(2) contradicts the contention that this is a Crown application and therefore a Crown assessment. That provision requires the report to be shared with all parties.

Addressing the Litigation Disadvantage Argument

[15] I also find the litigation disadvantage identified by the Crown to be unpersuasive particularly given the Crown's role as a minister of justice.

[16] First, if the report of a neutral expert does not support the Crown theory, this is not a litigation disadvantage so much as a strong signal the application may be misconceived.

[17] Second, if the Crown wishes to go ahead with a second opinion, it is not without remedy where the accused unreasonably refuses to co-operate. The Crown can seek an adverse inference: R. v. Stevenson, [1990] O.J. No. 1657 (Ont. C.A.); R. v. Sweeney (No. 2), (1977), 35 C.C.C. (2d) 245 (Ont. C.A.).

[18] Third, by way of a more broadly principled observation, the litigation disadvantage argument is predicated upon an unhealthy conception of the role of expert witnesses as "our witnesses" and "their witnesses." Canadian courts have increasingly come to accept that because of their superior knowledge and the vulnerability this creates, even when called by one of the parties, experts owe a higher obligation to the court than the party calling them. Experts must strive to offer impartial, unbiased and restrained assistance to the court, and testify in disregard to the litigation interests of the party calling them. This provision goes one step further in reducing the risk of litigation bias by inviting a court appointed expert.

Case Law Review

[19] Not surprisingly, with the exception of the decision in R. v. K.C., supra, the other case law on this issue shared with the Court does not support the Crown. All of the other cases presented to me involved input from the defence.

[20] In R. v. Torres, [2007] O.J. No. 1885 (Ont. S.C.J.), J.M. Wilson J. specifically rejected the Crown's contention that because it initiated the application it had the right to choose the expert. While the defence does not have the right to dictate who is appointed, neither does the Crown.

[21] In R. v. Hall, [2000] O.J. No. 2717 (Ont. S.C.J.), judicial review was denied because the trial judge was acting within his discretion to choose one of the recommended Crown experts who had impressed him, after seeking unsuccessfully to secure a consensus between the Crown and the defence.

[22] And in R. v. Blackwood, [2010] O.J. No. 4871 (Ont. S.C.J.), the judge selected an expert nominated by the defence over the Crown's choice, because both parties agreed the selected expert was competent, and the expert had testified in the past for both the Crown and the Defence.

Disposition

[23] Since this is not an exercise in rubber stamping the Crown nomination, I am not yet in a position to appoint an expert.

[24] When I communicated the result of this decision on December 18, 2015, with reasons to follow, I invited the parties to attempt to agree on an assessor, failing which they may, if they wish, nominate additional candidates, and provide me with further information on any nominated assessors, to assist in that selection process. Any such information should be advanced to me before the return date of February 4, 2016 at 9:00 in Court 4.

[25] On February 4, 2016, I will accept the formal presentation of evidence from witnesses, if any, and invite argument on who I should appoint. I will attempt to make an appointment imminently after this process has been completed.

Dated at Ottawa this 21st day of December 2015,

Justice David M. Paciocco