Ontario Court of Justice
Between:
Her Majesty the Queen
for the Crown
— And —
David Livingston and Laura Miller
Counsel:
- T. Lemon, S. Egan, I. Bell for the Crown
- B. Gover, F. Schumann, P. Hrick for D. Livingston
- S. Hutchison, M. Borooah for L. Miller
Before: Justice Timothy R. Lipson
Ruling on the Admissibility of Mr. Gagnon's Opinion Evidence
Overview
[1] The Crown seeks to qualify Robert Gagnon as an expert in the operation of computer systems, specifically Microsoft Windows-based systems in a network environment, and in the forensic recovery, examination and interpretation of computer data. The defence submits that the Crown has failed to establish that Mr. Gagnon is properly qualified to provide independent and impartial expert evidence.
Overview of the Evidence on the Voir Dire
[2] Mr. Gagnon is a retired member of the Ontario Provincial Police (OPP) Technological Crime Unit (TCU). He began his thirty-year career in 1979.
[3] Mr. Gagnon played a pivotal role in "computerizing" the OPP by implementing one of its first computer networks across the OPP's many detachments. He served as a detective sergeant and team leader of Technical Operations from 1996-2009. During that period, he designed and established networks and processes for forensic examination and analysis of computers, cell phones and other electronic devices.
[4] Mr. Gagnon then enjoyed a brief retirement, before returning in 2011 as the systems coordinator for the Internet Intelligence Unit. He returned to retirement in 2012 before being hired by the "Project Hampden" investigative team. Project Hampden is the name of the investigation which led to the charges before the court against Mr. Livingston and Ms. Miller.
[5] Mr. Gagnon was identified in Project Hampden's "project plan" as the individual who would be hired to complete a computer forensic analysis. On April 6, 2014, Det. Sgt. Michel Boulay reached out to Mr. Gagnon to ask him to "return" to the OPP and participate in Project Hampden as a technical analyst. There was no competition for this position.
[6] Mr. Gagnon was stationed at OPP headquarters in Orillia, Ontario. There, his first task was to establish a lab separate and apart from the Technological Crime Unit. Only Mr. Gagnon and Det. Sgt. Boulay were to have access to this lab. Mr. Gagnon had full access to OPP headquarters.
[7] Once the lab was established, Mr. Gagnon reviewed the documentation related to the case. In particular, he reviewed the Information to Obtain (ITO) and the search warrant for the twenty-four computer hard drives seized from the Ontario Provincial Government's Cyber Security Branch. On May 6, 2014, he began taking notes concerning his work and this investigation.
[8] Mr. Gagnon was originally hired to analyze the seized hard drive images (Exhibit P). He testified that his job was to "provide technical analysis of the data collected by the investigative team and to return that data to the investigative team in a readable format." However, Mr. Gagnon's involvement in Project Hampden expanded rapidly over time, to the point where he became an important resource for the investigative team. From mid-May 2014 to the start of this trial, Mr. Gagnon has participated in many Project Hampden team activities, including numerous conference calls and in-person meetings where strategy and investigative developments were shared.
[9] An agenda of one of these meetings (Exhibit E) included topics such as: updates on witness interviews, interviews that needed to be completed, updates on judicial orders required and updates on ongoing analyses and investigations. Mr. Gagnon would update the Project Hampden officers on his progress during these meetings. He testified that his notes from these meetings are not detailed because someone else was taking minutes.
[10] Mr. Gagnon communicated with the investigative team by email and phone regularly. Members of the investigative team would often reach out to Mr. Gagnon to assist them in gaining an understanding of the technical aspects of the project, including features of the search warrant (Exhibits G, H, I and L).
[11] The investigative team would occasionally ask Mr. Gagnon to complete reports on his analyses (Exhibits M and N). It would supply him with "search terms" to guide his analysis. Mr. Gagnon would supply the investigative team with the results of those searches.
[12] Some examples of the interaction between Mr. Gagnon and the Project Hampden investigators are:
October 9, 2014: The lead investigator of Project Hampden, Det. Sgt. Brian Mason, asked Mr. Gagnon for input as to what questions to ask Peter Faist, an important Crown witness, at his police interview (Exhibit J). As well, Det. Sgt. Mason asked him to "add in any questions from an IT perspective or any other perspective you feel are relevant." Mr. Gagnon provided a technical clarification but made no additions (Exhibit K).
Witness Interview Participation: Mr. Gagnon attended Mr. Faist's interview. He was in a separate room watching the interview via a video feed. According to Mr. Gagnon's understanding, he was there to be consulted if any technical issues arose, and to provide the interviewers with follow-up clarification questions if necessary. Det. Sgt. Brian Mason conferred with him at one point during the interview. Mr. Gagnon testified that he did not offer any follow-up questions.
Legal Strategy Advice: Mr. Gagnon also provided the team members with advice on legal strategy. On October 22, 2014 he recommended to the investigative team that they seek information about assigned drives and access levels controlled by administrators (Exhibit B). He also advised Det. Sgt. Andre Duval about the Canada Evidence Act definitions applicable to authenticating electronic documents. On October 28, 2014, Det. Sgt. Duval asked for his input as to what additional items should be seized (Exhibit B). Mr. Gagnon advised Det. Sgt. Duval to expand his list to include files that Peter Faist may have accessed in the G:Y: and T: drives.
Data Preservation Advice: On June 17, 2014, Mr. Gagnon provided advice to Cst. Tim Wright with respect to a data preservation request. Mr. Gagnon wrote: "Another BIG reason tapes should be restored at MGS as they contain hundreds of users emails and obvious over seizure situation happens then. They extract the requested users email account only and hand that over to use we are golden!" (Exhibit F).
[13] Mr. Gagnon also played a central role in the processing of Mr. Livingston's Blackberry which had been seized from him. On January 21, 2015, Mr. Gagnon wrote to Det. Sgt. Vern Crowley, who was temporarily in charge of the TCU, to inform him that "the Crown requires a fast turnaround on this device" (Exhibit D). That same day, Mr. Gagnon provided Det. Sgt. Mason with advice on whether or not further steps could be taken outside of the search warrant to "ensure a faster turnaround time" (Exhibit C). He suggested to Det. Sgt. Mason that "another assistance order may have to be included with this warrant" (Exhibit C). Later, on February 12, 2015, in an email to Kelly Anderson, a retired OPP officer working in TCU at the time, and other members of the investigative team, Mr. Gagnon described himself as "the point man for the [Blackberry] project" and stated that he would "like to witness some of this for [his] own interest." He testified that he made himself the point person because he wanted to do what he could to get Mr. Livingston's Blackberry analyzed as fast as possible.
[14] On January 27, 2015 Det. Sgt. Duval asked Mr. Gagnon if he should put Mr. Gagnon's name on the search warrant (Exhibit I).
[15] On February 22, 2015, Mr. Gagnon emailed the investigative team recommending that an additional charge, "Mischief in Relation to Data" contrary to s. 430 (1.1) of the Criminal Code be laid against the defendants (Exhibit Bb). Mr. Gagnon provided a factual summary of the investigation in his email stating that he believed the charge "would meet the test." Prior to Mr. Gagnon's suggestion the only charge being prosecuted was Breach of Trust contrary to s. 122 of the Criminal Code.
[16] Mr. Gagnon's investigative work as a technical analyst was important to substantiate the basis for the reasonable and probable grounds requirement for the issuance of search warrants and production orders.
[17] Mr. Gagnon's analysis of the twenty-four hard drives informed, and was cited in, the search warrant dated November 24, 2014 (Exhibit Q). In the ITO for the search warrant, Det. Sgt. Duval wrote: "Mr. Gagnon provided a detailed summary of the forensic examination which provided crucial information in this investigation" (Exhibit R).
[18] Mr. Gagnon also participated in the execution of this search warrant on November 27, 2014, at the request of Det. Sgt. Duval (Exhibit R). He was present when email mailboxes and backups were searched and seized (Exhibit S). Mr. Gagnon testified that after registering the evidence at the TCU, he then scanned the evidence for analysis and brought it back to his lab.
[19] As early as December 22, 2015, Mr. Gagnon stopped taking notes. His explanation was that he had "started a new project" so he "locked his [Project Hampden] notebook away." He continued to participate in Project Hampden meetings throughout 2016 and 2017.
[20] Mr. Gagnon's investigative work led to a Production Order being granted on August 25, 2016 (Exhibit T). He had discovered a collection of pertinent emails on the Internet. These emails had been released as a result of a Freedom of Information request by the Globe and Mail.
[21] On November 21, 2016, members of the investigative team were asked by Det. Cst. Steve Lawson to produce all relevant emails from Project Hampden, pursuant to a defence request. In his reply to Det. Cst. Lawson, Mr. Gagnon wrote: "I'm sure you are aware but will say it all email minus crown consultations deemed privileged?" (Exhibit U).
[22] Mr. Gagnon began working with Crown counsel in 2017. He was asked to produce several will-says, and was provided access to the "MCM" folder—the folder where significant steps in the investigation were memorialized. He also participated in meetings, mostly via conference call, with Crown counsel. The Crown has asserted litigation privilege over much of these conversations. (Exhibits V, W, X, Y, Z, and Aa).
[23] In examination-in-chief Mr. Gagnon testified that he understood that his duty as an expert required him to "bring forward his work and present it to the Court for its use and interpretation." He also recognized that with respect to his duty of impartiality, he was required "to retrieve inculpatory or exculpatory evidence, or anything that's required by the Court." On re-examination, he clarified that during project meetings his function was to provide computer forensic analysis, and to offer advice about the data he was currently analyzing. He denied playing a role in collecting evidence, interviewing witnesses, reviewing interview transcripts, witness processes, drafting authorizations or directing the investigation.
[24] Mr. Gagnon wrote several reports detailing his work on Project Hampden. I will review only the most prominent of them. He prepared a preliminary report on the twenty-four hard drives that were seized. That report was relied on to substantiate the ITO for a Production Order on June 5, 2014.
[25] On November 24, 2014 Mr. Gagnon was asked to prepare a report pertaining to a search warrant. On February 4, 2015, Mr. Gagnon's draft reports were used to substantiate the ITO for a search warrant. On April 15, 2015, Det. Sgt. Duval asked Mr. Gagnon to complete a report on his "latest finding concerning Faist's first attempt to install Whitecanyon on Miller's computer" (Exhibit M).
[26] At the outset of this trial the court was advised during a series of disclosure applications by the defence that Mr. Gagnon made some very recent amendments to his reports. At the last judicial pretrial held on August 3, 2017, the Crown advised the defendants that it would be providing them an updated version of Mr. Gagnon's report. It did so on August 11, 2017.
[27] The updated report changed the number of files and folders that Mr. Gagnon believed had been deleted on the computers he had analyzed. Further, since August 11, 2017, the Crown has provided a number of new will-says from Mr. Gagnon that expanded his evidence. These will-says include but are not limited to: a will-say dated August 6, 2017 regarding the corrections to his report; and a will-say dated August 6, 2017 outlining scenarios when an email could be considered deleted.
Positions of the Parties
[28] Counsel for the defendants submit that Mr. Gagnon should not be allowed to testify as an expert witness in light of his extensive and prolonged role in the investigation. In support of their argument, they highlighted Mr. Gagnon's role in recommending a particular charge against the defendants in addition to his involvement in numerous strategic planning sessions with the investigative team and the prosecution. The defence submits that Mr. Gagnon has impermissibly conflated his role as an investigator with that of his role as an expert. It is submitted that he has disqualified himself from being a "properly qualified expert" entitled to give expert opinion evidence.
[29] The Crown relies on Cromwell J.'s comment in White Burgess at para. 49 that the threshold requirement is not particularly onerous. Crown counsel submits that Mr. Gagnon is able and willing to carry out his duties to the court as an expert witness. He suggests that concerns about Mr. Gagnon's impartiality and independence are best addressed at the gatekeeping stage as part of the cost-benefit analysis the Court must conduct to determine whether the evidence warrants admission. Once the Court has heard Mr. Gagnon's evidence, the Crown contends, it will be in a better position to determine his impartiality and whether or not some or all of his evidence should be excluded. Further, the Crown stresses that the issues the defence raised can be adequately addressed through cross-examination. He submits that Mr. Gagnon's involvement in the investigation was limited to providing assistance to the police with technical issues which he is able to do as a result of his expertise.
The Legal Principles
(i) The Test for the Admissibility of Expert Evidence
[30] In R. v. Abbey, 2017 ONCA (Ont. C.A.) at paras 46-49 Laskin J.A. provides the following succinct review of the test to be applied for the admissibility of expert testimony:
The modern Canadian law on the admissibility of expert evidence began with the judgment of Sopinka J. in R. v. Mohan, [1994] 2 S.C.R. 9. But in the last two decades since Mohan was decided the law on expert evidence has changed significantly. In Abbey #1 itself -- on the Crown's appeal from the acquittal at the first trial -- my colleague Doherty J.A. reformulated the Mohan test for admissibility to make it easier to apply. And recently in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, Cromwell J. adopted with "minor adjustments" Doherty J.A.'s reformulation of Mohan.
The test in White Burgess is now the governing test for the admissibility of expert evidence. It adopts a two-stage approach, first suggested in Abbey #1: the first stage focuses on threshold requirements of admissibility; the second stage focuses on the trial judge's discretionary gatekeeper role. Each stage has a specific set of criteria.
The test may be summarized as follows:
Expert evidence is admissible when:
(1) It meets the threshold requirements of admissibility, which are:
a. The evidence must be logically relevant;
b. The evidence must be necessary to assist the trier of fact;
c. The evidence must not be subject to any other exclusionary rule;
d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is:
i. Impartial,
ii. Independent, and
iii. Unbiased.
e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose,
and
(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:
a. Legal relevance,
b. Necessity,
c. Reliability, and
d. Absence of bias.
In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirement.
(ii) The Expert's Duty to the Court
[31] In another recent decision by the Ontario Court of Appeal in R. v. McManus 2017 ONCA 188, [2017] O.J. No. 1372, van Rensburg J.A. at paras 64-67 summarizes the expert's duty to the court:
In White Burgess, at para. 32, Cromwell J. described an expert's duty to provide opinion evidence that is fair, objective, and non-partisan:
Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another.
Cromwell J. held that an expert's lack of independence and impartiality must be considered at the "gatekeeper" stage, and "goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted": White Burgess, at para 45.
An assessment of independence, impartiality, and bias is relevant to the fourth part of the Mohan test in determining whether the expert is properly qualified, and also factors into the balancing of benefit and risks of such evidence: White Burgess, at paras. 53-54; R. v. Shafia, 2016 ONCA 812, at para. 228. A person who opposes the admission of the evidence on the basis of bias has the burden of establishing a "realistic concern" that the witness is unwilling or unable to comply with the duty and the proffering party must rebut this concern on a balance of probabilities to satisfy the Mohan test for admissibility: White Burgess, at para. 48.
While an interest in or connection with the litigation does not automatically render the proposed expert evidence inadmissible, the court must consider whether the relationship or interest would result in the expert being unable or unwilling to carry out his or her primary duty to provide fair, non-partisan, and objective assistance: White Burgess, at paras. 49-50; R. v. Abbey, at para. 87. There is a heightened concern with police expert witnesses to ensure their ability to offer impartial expert evidence: see, for example R. v. Tesfai, 2015 ONSC 7792 (where measures taken to ensure the impartiality of the officer's opinion in a drug case were considered adequate) and R. v. T.A., 2015 ONCJ 624 (where the officer qualified to give expert opinion evidence was not involved in the investigation or the laying of charges and did not discuss his analysis with other officers involved in the project).
[32] In summary, experts owe a duty to the court to provide evidence that is fair, objective and non-partisan. Independence and impartiality are to be considered at the threshold stage. In White Burgess the Supreme Court of Canada held that a proposed expert's independence and impartiality goes to admissibility and not simply to weight. The analysis of a witness's independence and impartiality is properly undertaken under the "qualified expert" prong of the Mohan test. The court's assessment is not to be based on the appearance of bias. In White Burgess at para. 49, Cromwell J. stated that the threshold requirement is not particularly onerous and it will be likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it.
[33] The Crown has the burden of showing on a balance of probabilities that the proposed expert witness is capable of testifying independently and impartially. The trial judge is required to 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 primary duty to the court.
The Principles Applied
[34] Canadian jurisprudence on the admissibility of expert evidence has experienced a dramatic evolution beginning with the 2015 Supreme Court of Canada decision in White Burgess and cases which have followed at both appellate and trial levels.
[35] In White Burgess at para 12, Cromwell J. drew on lessons learned from the past and the role played by biased opinion evidence in wrongful convictions:
We are now all too aware that an expert's lack of independence and impartiality can result in egregious miscarriages of justice.
[36] Nothing less than scrupulous vigilance from trial judges is required when dealing with the admissibility of expert opinion evidence. Before such evidence can be admitted, the Crown must show on a balance of probabilities that the proposed expert is not biased.
[37] In R. v. France, [2017] (SCJ) at para. 17 Malloy J. refers to a 2009 article by Professor David Paciocco (now Justice Paciocco of the Court of Appeal for Ontario) that discusses how expert bias can come in many forms:
Professor Paciocco stresses the importance of the expert maintaining an "open mind to a broad range of possibilities" and notes that bias can often be unconscious. He refers to a number of forms of bias: lack of independence (because of a connection to the party calling the expert); "adversarial" or "selection" bias (where the witness has been selected to fit the needs of the litigant); "association bias" (the natural bias to do something serviceable for those who employ or remunerate you); professional credibility bias (where an expert has a professional interest in maintaining their own credibility after having taken a position); "noble cause distortion" (the belief that a particular outcome is the right one to achieve); and, a related form of bias, "confirmation bias" (the phenomenon that when a person is attracted to a particular outcome, there is a tendency to search for evidence that supports the desired conclusion or to interpret the evidence in a way that supports it). Confirmation bias was a particular problem identified in the Goudge Report as Dr. Smith and other pathologists and coroners at the time approached their investigations with a "think dirty" policy, an approach "inspired by the noble cause of redressing the long history of inaction in protecting abused children," and designed to "help ferret it out and address it." Unfortunately, as commented on by the Goudge Report and by Professor Paciocco, such an approach raises a serious risk of confirmation bias.
[38] Mr. Gagnon's special knowledge about the operation of computer systems and in the forensic recovery, examination and interpretation of computer data is not in dispute. Nor is his integrity in dispute.
[39] As well, I am not troubled by the fact that Mr. Gagnon was selected by the OPP to be the computer forensic analyst in Project Hampden. It is not impossible for a hand-picked witness to resist "selection bias" as described by Justice Paciocco and still be impartial. Nor am I concerned that he was not paid for some of the time that he spent working on this case. He was unable to bill the OPP for some of his hours because of his pension cap. An expert is free to spend unpaid hours of independent and impartial work. I tend to view Mr. Gagnon's unpaid hours working on this case as evidence of his strong work ethic and his professionalism.
[40] What is at issue is whether the Crown has established on a balance of probabilities that Mr. Gagnon is a properly qualified expert in the sense that he is both willing and able to fulfil the expert's duty to assist the court with opinion evidence that is impartial, independent and unbiased.
[41] In his testimony on the voir dire, Mr. Gagnon provided, in my view, an adequate explanation of the duties of an expert witness. He testified that he was required to "bring forward [his] work and present it to the Court for its use". Mr. Gagnon testified he had a duty to "retrieve inculpatory or exculpatory evidence, or anything required by the court". I do not doubt Mr Gagnon's sincerity or his good intentions to provide impartial, independent and unbiased evidence. In terms of demeanour as a witness, Mr. Gagnon did not convey any particular sense of partisanship in favour of the prosecution nor animus towards the defence.
[42] While I do not doubt that Mr. Gagnon is willing to fulfill his duties to the court, the question remains whether he is able to do so. The ultimate issue to be determined is whether, as a result of Mr. Gagnon's close relationship with the police investigative team and his significant involvement in the investigation, he is able to carry out his primary duty as an expert witness which is to provide fair, non-partisan and objective assistance to the court.
[43] While not technically employed as an officer by the OPP at the time of Project Hampden, the evidence establishes that Mr. Gagnon played an integral and important role in the police investigation. Because of the involved nature of his participation in Project Hampden, Mr. Gagnon should, in my view, be subject to the same kind of qualification scrutiny as would occur with a police expert witness. Generally, "it is the nature and extent of the interest or connection with the litigation or a party thereto which matters": White Burgess at para 49. Mr. Gagnon's close past and current connection to the OPP and the Project Hampden investigators does not automatically disqualify him from giving expert evidence. However, as in the case of police expert witnesses, the court needs to exercise a heightened concern to ensure his ability to offer impartial expert evidence.
[44] The court is required to consider both the particular circumstances of the proposed expert and the substance of his proposed evidence. In considering the particular circumstances of the expert, I must take into account both the nature of the case as well as the witness's involvement in the investigation and the purpose for his being called as an expert in the trial.
[45] In examination in chief, Mr. Gagnon testified that his connection with the Project Hampden investigative team was "providing technical analysis for the data we received and giving [that data] to the officers in a readable format." This was the limited scope of Mr. Gagnon's retainer at the outset. When he commenced his work in May 2014, Mr. Gagnon was provided with his own lab at OPP headquarters in Orillia in order to be separated from the OPP Technical Crimes Unit and to be distanced from the Project Hampden team members based in Ottawa. This was an appropriate step taken by the police at that time to ensure Mr. Gagnon's impartiality. It turned out to be the only step.
[46] It soon became the case that Mr. Gagnon's original limited role as a computer forensic expert morphed into something much more as the police investigation in Project Hampden proceeded.
[47] Mr. Gagnon took on an extensive, active and at times a proactive role in the investigation. He provided investigators with strategic and legal advice in their efforts to mount a case against the defendants.
[48] Apart from giving Mr. Gagnon a separate lab to conduct his work, the investigative leads took no measures to ensure that Mr. Gagnon's expert opinion evidence would be independent and impartial. The evidence reveals that there really was no separation between the work of Mr. Gagnon and that of the Project Hampden investigators. Over time Mr. Gagnon became an important member of the investigative team. He and the Project Hampden officers worked together and toward the same goal—the successful prosecution of Mr. Livingston and Ms. Miller.
[49] What happened in this case stands in stark contrast to others where careful procedures were adopted by the police during investigations to ensure a police expert's impartiality. R. v. Tesfai, [2015] O.J. No. 6717 (S.C.J) is a case where prior to analyzing wiretap evidence, the police expert witness was provided with only an overview of the project in general terms. He did not consider the ITOs used to obtain search warrants. He did not have a theory of the Crown to guide him because he did not want to be biased when reviewing the calls. The officer wasn't involved in the investigation. Because steps were taken to ensure his impartiality, the police witness was permitted to give expert testimony.
[50] In R. v. T.A., 2015 ONCJ 624 (O.C.J.), the Crown tendered an expert on street slang in a conspiracy to commit robbery case. The expert police witness listened to the wiretaps as the project was ongoing and even worked in the same building as the police investigative team. He did not offer an opinion before charges were laid, did not become involved in the laying of charges nor did he discuss his analysis of the wiretaps with other officers. The court found that there was no realistic concern that the officer would be able to execute his duty to the court fairly and impartially.
[51] Instead of maintaining his distance and independence from the day-to-day activities of the Project Hampden team, Mr. Gagnon did just the opposite. He participated in numerous project meetings by either conference call or in person. He agreed in cross-examination that the agenda topics for a project meeting for June 17, 2014 were typical for other meetings he attended. Those topics included updates on witness interviews, interviews that needed to be completed, updates on judicial orders required and updates on ongoing analysis and investigations. He would update the officers on his progress and provided input with respect to the investigations. He was, as well, included in the Project Hampden team strategy meetings with Crown counsel.
[52] Mr. Gagnon also played an important role in the uncovering and processing of evidence. He even participated in the execution of a search warrant. The Crown submits that Mr. Gagnon's expertise necessitated his presence at the search. That may be so, but I am required to consider his involvement in the search as a factor in deciding whether he can give impartial and independent expert opinion evidence.
[53] Mr. Gagnon's participation in the October, 2014 police interview of an important Crown witness, Peter Faist, is another cause for concern. In the forensic recovery process, Mr. Gagnon discovered evidence that led investigators to interview Mr. Faist. He agreed to assist the officers in formulating the questions for the interview. He monitored the witness interview from a nearby room by means of a video feed. He was consulted by officers for possible follow up questions at the end of the interview.
[54] Mr. Gagnon also provided Project Hampden officers with strategic and legal advice in order to assist them in the investigation. He advised Det. Sgt. Mason that decrypting Mr. Livingston's seized Blackberry was permissible without a warrant and that another assistance order could be required for Linda Jackson's staff. Mr. Gagnon also updated Det. Sgt. Crowley about progress made toward obtaining a warrant to search Mr. Livingston's Blackberry.
[55] Mr. Gagnon regarded himself as a team member of Project Hampden. This is evidenced in emails introduced during his cross-examination.
[56] On June 17, 2014 Mr. Gagnon had an email exchange with an officer named Tim Wright. He provided advice on the best legal strategy with respect to a data preservation request. Mr. Gagnon wrote: "They extract the requested users email account and hand them over to use (sic), we are golden !" (emphasis added)
[57] In January 2015, Mr. Gagnon became aware of the seizure of a Blackberry. He volunteered to do what he could to get the device analyzed as soon as possible. He informed Project Hampden officers that "the Crown required a fast turnaround" on this. He described himself as the "point man for project". (emphasis added)
[58] The most concerning example of partisanship occurred on February 22, 2015. In an email to the lead investigators of Project Hampden, Mr. Gagnon recommended that Laura Miller and David Livingston be charged with mischief to data, contrary to s. 430 (1.1) of the Criminal Code. And he went even further, providing a summary of the investigation to show that "the facts" of the case would "meet the test" for the charge.
[59] In this email he also said:
"Data was destroyed and or rendered useless by WhiteCanyon overwriting and scrambling files. According to emails, preventing certain information from being exposed to FOI requests.
LIVINGSTON was leaving public service but had to protect his reputation and that of the party for any future employment elsewhere and the parties (sic) future election. Based on the above an additional charge of Mischief in relation to data would meet the test, I believe, against David LIVINGSTON and Laura MILLER " (emphasis added).
[60] In my view, these comments, made two months before he offered his final forensic report, demonstrate Mr. Gagnon's lack of independence and impartiality. Crown counsel understatedly conceded during argument that Mr. Gagnon's statements were "not ideal". I would characterize Mr. Gagnon's comments to be the kind one would expect to hear from a partisan police investigator, not a supposedly independent and unbiased expert.
[61] I note that on April 30, 2015, just over two months after this email was sent, the Supreme Court of Canada's landmark judgment in White Burgess was released. For the first time, the Supreme Court set down the rule that impartiality and independence are essential elements of what it means to be a "properly qualified" expert entitled to give expert opinion evidence. If measures had not been taken by the police or prosecution prior to White Burgess to retain an outside and independent computer forensic analyst unconnected to the investigation, the judgment in White Burgess should have sent a clear message to them to strongly consider doing so.
[62] During the voir dire, Crown counsel indicated that Mr. Gagnon conducted a forensic examination of the hard drives of seized government computers. He retrieved relevant emails from a "sync conflict folder" located in the Microsoft Outlook mailbag. From an examination of both the retrieved emails and the hard drives, Mr. Gagnon was able to provide an opinion on whether the emails had been deleted through the use of a particular type of software.
[63] Mr. Lemon, on behalf of the Crown, indicated that a forensic examination of a computer involves a blend of fact and opinion evidence. He could not "foreclose the possibility" that another expert could come to different conclusions than did Mr. Gagnon. Mr. Hutchison, on behalf of Ms. Miller, told the court that various areas concerning the methodology of the forensic examination and resulting interpretations by and opinions of Mr. Gagnon will be "hotly contested issues" at trial. The Crown did not dispute the defence submission that the proposed opinion evidence goes to a key issue in the trial—whether the defendants carried out the actus reus of the three counts with which they are charged.
[64] The Crown is offering Mr. Gagnon as an expert to provide fact-specific, particularized opinion evidence on crucial issues in this trial which bear upon the guilt or innocence of the defendants. These issues relate to whether emails were deleted from government computer hard drives and whether the defendants were responsible for deleting emails which ought not to have to have been deleted. This type of evidence goes well beyond a generic overview of computer mechanics outside of the Court's knowledge. In my view, the scope of the proffered opinion evidence tends to militate against admitting Mr. Gagnon's evidence, given his substantial involvement in the investigation and his expressed bias with respect to the guilt of the defendants.
[65] I agree with the defence submission that the evidence shows Mr. Gagnon has conflated the roles of expert and investigator. Project Hampden was a significant and lengthy investigation in which Mr. Gagnon was extensively involved in several ways. If permitted to give expert evidence, Mr. Gagnon would be opining on his own investigative work as well as the work of Project Hampden officers with whom he has closely collaborated from May 2014 to the present time. An expert cannot find himself or herself in this position and still be considered "properly qualified" within the meaning of White Burgess.
[66] The Crown submits that any issue of bias could be addressed by the defendants through cross-examination of Mr. Gagnon. Mr. Lemon says that the court should defer the decision on admissibility to a later point in the trial as part of its gate-keeping role of conducting a cost-benefit analysis. With respect, I disagree. In White Burgess, at para. 53, Cromwell J. stated:
In my opinion, concerns related to the expert's duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the 'qualified expert' element of the Mohan framework….Situating this concern in the 'properly qualified expert' ensures that the courts will focus expressly on the important risks associated with biased experts.
[67] In White Burgess at para. 49 Cromwell J. observed that the threshold requirement in issue here 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. Upon a careful consideration of the evidence adduced in the voir dire, I am compelled to conclude that this is one of those rare cases where a proposed expert should not be permitted to give expert opinion evidence. In my respectful view, this is a clear case for exclusion.
Conclusion
[68] Taking into consideration the nature and extent of Mr. Gagnon's long and extensive participation in the police investigation of the defendants, as well his email comments revealing bias, I am satisfied there is a realistic concern that he is unable to provide independent, impartial and unbiased evidence. I am also of the view that the Crown did not rebut this concern on a balance of probabilities, failing to satisfy the fourth Mohan criterion for threshold admissibility. In the result, the prosecution has not satisfied its burden that the proposed witness is properly qualified to give expert opinion evidence. The opinion evidence of Mr. Gagnon will be excluded.
September 28, 2017
Justice Timothy R. Lipson