Court File and Parties
COURT FILE NO.: CR-16-50000176-0000 DATE: 20180719
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Applicant
- and - DELLEN MILLARD Respondent
J. Cameron and K. Lockhart, for the Applicant Crown R. Pillay, for the Respondent Dellen Millard
HEARD: June 14, 15, 18 and 19, 2018
M. Forestell J.
RULING: ADMISSIBILITY OF EXPERT OPINION EVIDENCE
[1] Dellen Millard is charged with the first degree murder of his father Wayne Millard. Wayne Millard died as the result of a gunshot wound to his left eye. He died sometime on November 29, 2012. His death was initially classified as a suicide. After further investigation, Dellen Millard was arrested and charged with the murder of Wayne Millard on April 10, 2014. Dellen Millard elected trial by judge alone and the trial commenced before me on May 31, 2018.
[2] The issues in the trial are whether I can be satisfied beyond a reasonable doubt that the death of Wayne Millard was a homicide and, if so, whether I can be satisfied that Dellen Millard killed Wayne Millard. Because the Crown’s case is wholly circumstantial, a central question in the trial is whether suicide is a reasonable inference on the evidence.
[3] On this application, the Crown sought to introduce expert opinion evidence from Detective Constable Grant Sutherland of the Toronto Police Service in the area of “Shooting Scene Reconstruction”.
[4] Counsel for Mr. Millard opposed the introduction of the entirety of the testimony of D.C. Sutherland.
[5] I indicated on June 22, 2018 that only the evidence of the general operation of revolvers and the evidence of the specific design and operation of the revolver in this case was admissible. The balance of D.C. Sutherland’s opinion with respect to the position, orientation and location of the gun when discharged and the likelihood that Wayne Millard discharged the shot given his body position was ruled inadmissible. I indicated that reasons would follow. These are those reasons.
Summary of the Evidence
[6] Detective Constable Grant Sutherland testified over the course of two and one-half days. It was agreed that the whole of his evidence should be heard on the voir dire into admissibility. Only the evidence that was ruled admissible would become part of the trial evidence.
[7] D.C. Sutherland is a member of the Toronto Police Service (the “TPS”). D.C. Sutherland worked as a Scenes of Crime officer from 2008 to 2013. He worked in a supervisory capacity in the Forensic Identification Services from 2013 to 2016. From 2016 to present he has worked with the Organized Crime Integrated Guns and Gangs Task Force Firearms Investigation and Analysis Unit. D.C. Sutherland has a Bachelor of Arts Degree in Law and Justice from Laurentian University. He has taken two five-day courses in shooting scene reconstruction. These courses were taught by a recognized expert in the area. The second time that he attended the course he was also a host and assisted in the presentation of the course. The broad area of shooting scene reconstruction encompasses the analysis of gunshot residue impressions. D.C. Sutherland has lectured and provided training in the area of shooting scene reconstruction.
[8] D.C. Sutherland has taken several firearms courses and keeps up-to-date with relevant research and literature with respect to firearms. He has experience in firing revolvers and other firearms. D.C. Sutherland’s Curriculum Vitae was filed as an exhibit and outlines in more detail his training and experience.
[9] D.C. Sutherland has been qualified to offer expert opinion evidence in other cases in the areas of trajectory analysis, functionality of firearms and shooting scene reconstruction.
[10] D.C. Sutherland testified that ‘forensic scene reconstruction’ is the, “Determination of the sequence of two or more events in a particular incident utilizing information derived from the physical evidence, data derived from the analysis of physical evidence, recognized physical laws and/or inferences drawn from experimentation related to the incident under investigation.” ‘Shooting scene reconstruction’ is defined as “the examination of the circumstances and physical evidence, including ballistics and trajectory analysis at the scene of a shooting incident to establish how the shooting incident occurred”.
[11] D.C. Sutherland testified that he understood the concept of bias and that he understood the duty of an expert witness which he described as an obligation to deliver impartial, honest, full, frank and fair evidence. He testified that he understood that his evidence was to be as unbiased as possible. He testified that to the best of his ability he removed any bias from his experimentation, report and testimony.
[12] D.C. Sutherland was asked by two of the homicide investigators in the Wayne Millard case to determine whether a shooting scene reconstruction would be possible. He reviewed the scene photographs and the post-mortem report. He noted the body positioning of the deceased. He focused his attention in his initial review to the area around the head and upper body of the deceased because the post-mortem report said that the firearm was in contact with or close to the eye of the deceased when discharged. He then submitted a ‘request for further testing’. D.C. Sutherland testified that his initial review presented a ‘number of inconsistencies’. D.C. Sutherland appeared to be saying that the ‘inconsistencies’ were matters that were inconsistent with suicide. The inconsistencies of concern to D.C. Sutherland focused on the markings on the pillow and their origin.
[13] There was an irregular, oval shaped soot-like mark on the pillow near the deceased. D.C. Sutherland testified that he had both observed and created cylinder gap impressions in his training. He had encountered them in his experience at shooting scenes. A cylinder gap impression is created by gunshot residue (“GSR”) escaping through the gap between the cylinder and barrel of a revolver and depositing on a nearby surface. Generally, a ‘cylinder gap impression’ is created when the revolver is fired while on its side and near or on a surface. Cylinder gap GSR would be expected to be released from both sides of the cylinder of a revolver. D.C. Sutherland reviewed the photograph of the mark on the pillow and it appeared different from other cylinder gap impressions that he had observed. He described it as ‘unexplainable’. The aspect of the markings on the pillow that D.C. Sutherland testified he found to be inconsistent or unexplainable was the presence of a linear mark leading from the larger soot like mark on the pillow. D.C. Sutherland testified that this appeared to be a marking left by the top strap and barrel of the firearm. This led him to the belief that the gun was ‘upside down’ when fired.
[14] In his February 4, 2015 proposal for further testing, D.C. Sutherland identified the inconsistencies of concern to him. He explained in the proposal that if the deceased had operated the firearm with his left hand, the cylinder gap would likely have been aligned with the left hand or forearm. If so, one would expect some soot transfer onto the left hand or forearm. He noted that there was no soot found at autopsy on the left hand or forearm. In his proposal, D.C. Sutherland identified the possibility that cylinder gap was not aligned with the left hand or forearm. If so, he explained, the soot would have been transferred to the pillow. No soot transfer to the pillow was found under the top strap barrel marking. Finally, in the proposal for testing D.C. Sutherland wrote that an intermediary surface was suspected in the case.
[15] An intermediary surface is a surface between the GSR and another surface.
[16] D.C. Sutherland testified that the testing was proposed to attempt to explain the inconsistencies. The proposal was approved and he proceeded to create a shooting scene reconstruction.
[17] D.C. Sutherland conducted testing on November 27, 2015. He fired 7 control test fires, one from each of the 6 chambers of the firearm with an extra test fire for the first chamber because of a misfire. The ammunition he used was similar to, but not identical to the ammunition used when Wayne Millard was shot. Each of the control shots were fired with the firearm lying on its right side on a pillow case. There was no difference in the impressions created by the six chambers. The remainder of the test firing used chamber 6. A series of 20 shots were then fired from the firearm into 20 separate Styrofoam mannequin heads. Each mannequin head was placed on a pillow with a new pillowcase for each shot. Two mannequin arms were reused for each shot. The experiment was video-recorded. The firearm was positioned slightly differently for each shot, but in every shot the top strap/barrel was in contact with the pillow. Over the 20 shots, the pressure exerted on the firearm into the pillow and the pressure exerted on the mannequin arms varied. The amount of pressure was not measured or quantified. The angle of the gun changed for most of the shots. The angle was not measured, but was approximated by D.C. Sutherland.
[18] The first four shots were fired with the gun on its right side. The sixth shot was fired with the gun on a 90 degree angle or directly upside down. The remaining 14 shots were fired with the gun on its left side at varying angles and with varying pressure exerted on the gun and on the mannequin arms.
[19] The experiment recorded the various GSR impressions left on the pillows. D.C. Sutherland observed and analyzed the impressions created and conclude that the 20th test fire conducted with the top strap in contact with the pillow and angled to its left at about 67.5 degrees with a slight vertical angle and little pressure on the firearm and mannequin arm was most similar to the cylinder gap marking at the scene of Mr. Millard’s death. None of the 20 tests produced a linear marking like the one in the scene photographs that D.C. Sutherland concluded was created by the top strap/barrel of the gun. It was his conclusion that the linear marking came from the top strap/barrel that caused him to design the experiment to test the gun with the top strap /barrel always in contact with the pillow.
[20] In his December 11, 2015 report prepared after he conducted testing, D.C. Sutherland again identified the inconsistencies that were of concern. He again explained that if the firearm had been operated by Wayne Millard’s left hand, he would expect that Wayne Millard’s left hand or forearm would have been aligned with the cylinder gap and there would have been soot transferred. He again said that if the cylinder gap was not aligned with the left hand or forearm, he would expect to see soot transfer on the pillow below the top strap barrel marking. With respect to the involvement of an intermediary surface, D.C. Sutherland wrote:
An intermediary surface is a possible explanation for the markings but there was none found within the scene. The cylinder gap GSR below the top strap/barrel marking could have been blocked by an intermediary surface. However, the top strap marking is linear and the cylinder gap GSR marking intersects the crisp line which reduces the possibility of the linear mark being a shape outline. The GSR located on the right hand further reduces the possibility of an intermediary surface. [Emphasis added]
[21] D.C. Sutherland, in explaining the reasons for the manner in which the test firing was conducted, said the following about the possibility of intermediary surfaces at the scene: “Again, there’s no intermediary surfaces. There is no GSR located on Mr. Millard’s hands as per the postmortem report. So there’s no intermediary surfaces that was suspected or noted in any of the reports that were reviewed.”
[22] In his examination-in-chief, D.C. Sutherland was asked why he concluded that the line in the scene photographs was created by the top strap/barrel. He said,
There is no intermediary surfaces. None were found at the scene. And in looking at this photograph here as well as in reviewing the postmortem report, there was gunshot residue from the muzzle of the firearm on Mr. Millard’s right hand. …the line itself is relatively crisp. However, when it intersects with the GSR pattern, the pattern overlays that line. There’s no corners that are discernible in this photograph here. I had originally thought that this would have been what’s called an intermediary surface ‑ something blocking it, something in the way, a piece of paper, a magazine, anything with a straight edge anything with a straight line ‑ but there’s no intersections. Remember that a gunshot is instantaneous...so the movement of an intermediary surface between the cylinder gap being created and the muzzle being created is not possible…so if this were to be an intermediary surface there would be an intersecting line. It would be the corner of the magazine of whatever it was…so that excludes the possibility of an intermediary surface.
[23] D.C. Sutherland went on to offer the opinion that the line could have been created by blowback from the muzzle. He opined that the same blowback would not be created when firing at a Styrofoam head.
[24] Although there was no chemical analysis of the linear marking, D.C. Sutherland offered the opinion that the line was GSR. He testified that the line continued to the eye and it was consistent with the line of the gun.
[25] D.C. Sutherland offered the opinion that he did not believe that Wayne Millard fired the gun. He testified that, based on the position and orientation of the gun that he had determined in his testing, it would be very difficult to pull the trigger of the gun. He testified that while it was possible to do so, the left hand or forearm would have been in direct line with the right side of the cylinder gap and GSR would have been deposited on Wayne Millard’s left hand or forearm. He said that the presence of GSR would be readily visible.
[26] He further testified that “any intermediary surfaces ‑ so anything in between Mr. Millard’s left hand and the firearm which would have blocked said GSR from the cylinder gap from being imprinted on his arm ‑ was not found. There were no intermediary surfaces located, and again in any of the scene photography viewed here today, the likelihood of any intermediary surfaces is very low because there is no sign of it in any of the scene photography.”
[27] Under cross-examination, D.C. Sutherland confirmed that he relied only on the scene photographs, the post-mortem report and the autopsy photographs in addition to the tests that he conducted with the gun. He assumed that the scene had not been disturbed between the time the body was discovered and the time that the scene photographs were taken. He agreed that if there was any contamination of the area around the head and arm body positioning of Wayne Millard in relation to the GSR on the pillow it would affect his opinion.
[28] It was put to D.C. Sutherland that his opinion rested on an uncontaminated scene. He replied:
My opinion and my…the completion of the report rests on my observations found within the scene photography, of which, the areas that we have spoken about, no observable movement had taken place. The blood that had run onto the pillow and across the hand was all uniform. There was no breaks in that. The pooling of the blood was not removed from where Mr. Millard’s head was photographed. So there wasn’t any concern for, again the major movements of the areas which are contained in my report.
[29] D.C. Sutherland testified that he studied the scene photography and did not see any signs of scene contamination. He elaborated saying,
The blood and the gunshot residue was there. And the blood would have immediately followed the gunshot and the gunshot residue was created at the time of the gunshot and none of those were moved or out of place which again bolstered my opinion that the areas which we’re speaking of ...the upper body with the arms and the constriction of the arms as well as the head placement hadn’t moved since the creation of the gunshot residue pattern and the creation of the blood which again are pretty instantaneous with the gunshot. So again I had no reason to believe that there was contamination of the scene, again, from the study of the photos.
[30] In cross-examination, D.C. Sutherland was taken to a photograph of the scene that showed the blankets around the lower body of the deceased. Mr. Pillay zoomed in to the corner of one of the blankets that was clearly bloodstained but was near the foot of the bed. All of the other blood in the scene was near the head of the deceased. Other witnesses in this trial have testified that blankets may have been removed and replaced before the arrival of the officers who took the scene photographs. The photograph showing the bloodstained blanket had not been entered as an exhibit in the trial to this point.
[31] D.C. Sutherland was asked: “Did you know about this blood on the blanket?” His answer was: “It was in the scene photography, yes.”
[32] He agreed that he had made no reference to the bloody corner of the blanket in his notes, in his proposal or in his report. It was suggested to him that he did not see the blanket with the blood and he disagreed.
[33] He agreed that if the blanket was around the head and hand area it could be important. He was asked why he made no note of it. He said: “again, any intermediary surface could be important. However, I haven’t listed all of them. Again, my review of this was the firearm being discharged and the orientation of that firearm in relation to the creation of a cylinder gap on the pillow.”
[34] He was asked: “you are supposed to be fair. You are supposed to be impartial. Why wouldn’t you note this? Why wouldn’t you record this? Why wouldn’t you tell us about it?” He said: “I have discounted any intermediary surfaces.”
[35] Cross-examination finished on a Friday and D.C. Sutherland was re-examined on the Monday. In re-examination, D.C. Sutherland testified that he had thought about the blanket a lot over the weekend and explained why his conclusions did not change even if he factored in the presence of the blanket.
Approach to the Admissibility of Expert Evidence
1. The Burden of Proof
[36] Opinion evidence is presumptively inadmissible and the party seeking to introduce it bears the onus of establishing its admissibility on the balance of probabilities. [1]
2. The Framework
[37] Laskin J.A. in R. v. Abbey, 2017 ONCA 640 at para. 48 set out the framework for the determination of the admissibility of expert evidence:
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.
[Citations and footnotes omitted]
[38] In this case, the challenge to the admissibility of the proposed expert does not raise any additional exclusionary rule, nor is the science said to be novel. The evidence is challenged on the basis that it is not relevant or necessary and on the basis that the proposed expert is biased. It is further argued that even if the evidence is capable of meeting the threshold requirements of admissibility, the deficiencies in the reliability of the evidence and the underlying bias make its probative value minimal and the potential for prejudice significant.
3. Delineating the Scope of the Proposed Expert Evidence
[39] As noted by Doherty J.A. in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 62:
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 . . . [Emphasis added; citations omitted.]
[40] Molloy J., in R. v. France, 2017 ONSC 2040, recently explained the integration of the delineation of the nature and scope of the proposed expert into the admissibility inquiry:
13 Assessing whether the expert is qualified by education and experience to provide the opinion tendered to the court is typically the first question addressed by the trial judge when the expert witness is called. As underscored in Sekhon [2014 SCC 15] and Abbey [2009 ONCA 624, leave to appeal refused, [2010] 2 S.C.R. v. (note)], part of this exercise involves considering not only the overall expertise of the expert, but also the extent to which his expertise is engaged on each question upon which he is asked to opine. The questions to be asked must be delineated and assessed in this light. In Sekhon, Moldaver J. held:
The trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence.
[41] Therefore, once each area of the proposed opinion evidence is delineated, each area must be analyzed in accordance with the two-stage framework. I have delineated the areas of proposed opinion evidence of D.C. Sutherland as follows:
D.C. Sutherland’s description of the general design and operation of revolvers. This would include the description of the parts of the revolver, the manner in which a projectile is discharged from a revolver and the dispersal of GSR from a revolver upon discharge. D.C. Sutherland testified that GSR is dispersed both from the muzzle and from the cylinder gap of revolvers. He testified that cylinder gap GSR is often visible to the naked eye when it comes into contact with a surface that is close to or in contact with the cylinder gap upon discharge.
D.C. Sutherland’s description of the specific design and operation of the firearm found near the body of Wayne Millard. This would include the evidence that GSR would be expected to be dispersed from the muzzle and cylinder gap of the revolver upon discharge.
D.C. Sutherland’s description of his experiment in discharging the firearm onto the pillow and into the Styrofoam head of a mannequin, including the photographs and video of the experiment.
The opinion of D.C. Sutherland with respect to the similarities and dissimilarities of the GSR impressions from his discharge in the experiment as compared to the soot mark and linear mark on the pillow of Wayne Millard and his opinion as to the reasons for the similarities and dissimilarities.
D.C. Sutherland’s opinion with respect to the orientation, position and location of the firearm in this case when it was discharged and the possible body dynamics at the time of discharge. This includes the evidence of D.C. Sutherland that the most likely position of the firearm at the time of discharge was with the barrel and top strap in contact with the pillow and the firearm on an angle to the left side of the forearm at about a 67.5 degree angle.
D.C. Sutherland’s opinion that he did not believe that Wayne Millard fired the gun because Mr. Millard had no obvious GSR on his left hand or forearm and the only possible positions from which to fire the gun would have deposited GSR on the left hand or forearm in the absence of an intermediary surface and assuming the position and orientation of the firearm as described.
[42] Having broken down the areas of the proposed evidence as set out above, I have assessed the admissibility of the evidence in the two-stage framework.
4. The First Stage
(a) Relevance
[43] Relevance at this stage of the analysis means logical relevance. [5] This means merely that the “expert opinion evidence must 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 the evidence.” [6]
[44] I am satisfied that every proposed area of evidence of D.C. Sutherland outlined above meets the requirement of logical relevance.
[45] A central fact in issue is whether the circumstantial evidence supports an inference that Wayne Millard committed suicide. D.C. Sutherland’s opinion that it is unlikely that Wayne Millard fired the gun is logically relevant to that fact in issue. D.C. Sutherland’s observations about the GSR impressions from the test firing are part of the foundation for that opinion.
(b) Necessity
[46] In R. v. D.(D.), [2000] 2 S.C.R. 275, 2000 SCC 43 at para. 47 the Supreme Court of Canada explained that necessity does not mean mere helpfulness. The majority adopted the statement of Sopinka et al. that “expert evidence must be necessary in order to allow the fact finder: (1) to appreciate the facts due to their technical nature, or; (2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge.” [8]
[47] Also in D.(D.), the majority adopted the summary of the approach to necessity set out by Professor Paciocco (as he then was) in a 1998 article:
As the Mohan Court explained, the four-part test serves as recognition of the 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 its reliability adequately, increasing the risk that the 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)
[48] The first two areas of the evidence of D.C. Sutherland (areas 1 and 2 in paragraph 41 above) meet the requirement of necessity. I, as the trier of fact, lack specialized knowledge of firearms. An understanding of the operation of the firearm is important in assessing the scene and the inferences to be drawn from the positioning of the body of Wayne Millard within that scene. The specialized knowledge with respect to the dispersal of GSR is also technical knowledge that is necessary to understand and assess the available inferences from the scene.
[49] In my view, necessity would also be met with respect to the opinion of D.C. Sutherland on the issues of the observations and his conclusions with respect to the position, orientation and location of the gun when it was discharged. If this evidence was reliable and unbiased, it would be evidence that met the necessity requirement as being beyond the knowledge of the trier of fact and necessary to understand the technical aspects of the scene evidence.
[50] The necessity requirement is not met with respect to the final proposed area of expert evidence: D.C. Sutherland’s opinion that it is unlikely that Wayne Millard discharged the firearm. D.C. Sutherland is in no better position than the trier of fact to assess the likelihood of Wayne Millard choosing a particular position of his body and the firearm in order to commit suicide.
(c) Duly Qualified Expert ‑ Threshold Qualification
[51] The requirement that the evidence be given by a duly qualified expert has several components. The first is that the witness must be shown to have acquired special or peculiar knowledge through study or experience in respect of the matters upon which the witness will opine. R. v. Mohan, [1994] 2 S.C.R. 9, 1994 SCC 80 at para. 27. This basic component set out in Mohan is not an onerous requirement, but it should not be overlooked. The Goudge Inquiry emphasized the need for courts to clearly articulate the area of competence and to evaluate the quality of the training.
[52] The training and experience of D.C. Sutherland has given him sufficient specialized knowledge in the area of the operation and design of firearms and in the mechanics of GSR deposition to allow him to testify in those areas, subject to an assessment of bias.
[53] I have some concerns about the adequacy of two five-day courses covering all aspects of shooting scene reconstruction to qualify D.C. Sutherland to recreate and then opine on the interpretation of GSR deposits as indicative of the location, orientation and position of a firearm upon discharge. The re-creation of the scene was put forward as a scientific exercise, but D.C. Sutherland failed to conduct the experiment in a manner that would allow it to be replicated. Important parts of the exercise were conducted with no measurements taken. This included the angle of the gun when fired, the degree of pressure on the firearm onto the pillow and the degree of pressure exerted on the mannequin arm into the pillow. There was no measurement of the pillow and no record of the fabric of the pillowcase. D.C. Sutherland did not attempt to disprove the hypothesis that the linear marking on the pillow was created by the top strap/barrel. He rejected any evidence that the line could be caused by an intermediary surface. He conducted the experiment only with the top strap/barrel in contact with the pillow because of his presumption that this was the cause of the linear marking.
[54] D.C. Sutherland’s evidence was that the exercise was conducted in accordance with his training and experience. It is difficult to assess whether the concerns with respect to methodology are properly attributed to inadequate training or to a failure to apply the training in the area of shooting scene reconstruction. Given my conclusion that D.C. Sutherland is not willing and able to give impartial, independent and unbiased evidence in this case I need not resolve the question of the adequacy of his training.
[55] In White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, 2015 SCC 23, Cromwell J. writing for the Court, explained that in addition to assessing the specialized knowledge of the proposed witness, the trial judge must determine whether the expert is willing and able to provide impartial, independent and unbiased evidence. At paragraph 53 of White Burgess Cromwell J. wrote:
53 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: S. C. Hill, D. M. Tanovich and L. P. Strezos, McWilliams' Canadian Criminal Evidence (5th ed. (loose-leaf)), vol. 2, at s. 12:30.20.50; see also Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600, 92 O.R. (3d) 97 (Ont. C.A.), at para. 21; Lederman, Bryant and Fuerst, at pp. 826-27; Halsbury's Laws of Canada: Evidence, at para. HEV-152 ‘Partiality’; The Canadian Encyclopedic Digest (Ont. 4th ed. (loose-leaf)), vol. 24, Title 62 — Evidence, at § 469. A proposed expert witness who is unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert. Situating this concern in the ‘properly qualified expert’ ensures that the courts will focus expressly on the important risks associated with biased experts: Hill, Tanovich and Strezos, at s. 12:30.20.50; Paciocco, ‘Jukebox’, at p. 595.
[56] The requirement that the expert be impartial, independent and unbiased at the first stage or threshold stage of the admissibility analysis was said in White Burgess to not be an onerous one. Absent a challenge, the testimony of the proposed expert that the expert recognizes and accepts the duty to be impartial will be sufficient.
[57] Where the expert is challenged on the basis of bias, the party opposing the admission of the evidence must show that there is a realistic concern that the expert is unable or unwilling to comply with the duty to be impartial. If the opponent of the evidence meets their burden to show a realistic concern, the burden remains on the proponent of the evidence to establish that the proposed expert meets this requirement.
[58] An interest in or connection to the litigation or to one of the parties does not automatically render a proposed expert’s evidence inadmissible. The trial judge must evaluate whether the connection renders the expert unable to offer independent and impartial evidence. There is a heightened concern with police expert witnesses. The cases addressing the heightened concerns with police experts have generally been focused on the nature and extent of the involvement of the expert in the investigation. R. v. McManus, 2017 ONCA 188 at para 67; R. v. Tesfai, 2015 ONSC 7792; and R. v. A. (T.), 2015 ONCJ 624. However, the question to be determined, with police witnesses and others, is “whether the relationship or interest results in the expert being unable or unwilling to carry out his primary duty to the court to provide fair, non-partisan and objective assistance.” [11]
[59] In the case of a proposed police expert, the relationship between the proposed witness and the investigators and the degree of involvement of the witness in the investigation are factors to be considered in evaluating the qualification of the witness. They are not the only factors.
[60] Professor Paciocco, as he then was, in a 2009 article [12] analyzing the Goudge Report [13] explained the “evidence based approach” to the evaluation of the expertise of a proposed witness advocated by the Goudge Report. In the article, Prof. Paciocco discusses the movement from a “trust me” approach to expert evidence to an evidence based, “show me” approach:
The Goudge Report demonstrates the most basic safeguards — things such as the clear articulation of the expert's competence, and the need to appreciate the quality of expert training — but its most profound contribution is in the central place it gives to the ‘evidence based approach’ to expert evidence. The Mohan test has long insisted on an evidence based approach, but the Goudge Report now shows how best to achieve it, describing as it does, the four predicate conditions for practicing a "show me" strategy for ensuring the integrity of expert evidence:
(1) the theory or technique used by the expert must be reliable, and so too must the use of that theory or technique by the expert;
(2) the expert must not be biased;
(3) the expert must be objective and complete in collecting evidence, must reject all information that is not germane to the theory or technique being used, and must be transparent about all information and influences they have been exposed to; and
(4) the expert must clearly express not only the opinion, but also the complete reasoning process that led to it, and must be candid about the shortcomings of the theory or technique employed and the opinion reached, offering fair guidance on the level of confidence that can be placed in the opinion expressed.
[61] Molloy J., in France, summarized Professor Paciocco’s enumeration of the relevant forms of bias: [14]
…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. [Footnotes omitted]
[62] In this case, the qualification of D.C. Sutherland has been challenged on the basis of bias. Counsel for Mr. Millard has raised a realistic concern that D.C. Sutherland is unable or unwilling to be impartial.
[63] D.C. Sutherland was aware of the photograph showing a blanket that must have been moved from the area of the head of the deceased. This blanket could have been an intermediary surface. D.C. Sutherland’s opinion was premised on there being no intermediary surface to block the deposit of GSR. D.C. Sutherland did not disclose the possibility of the blanket as an intermediary surface. D.C. Sutherland failed entirely to disclose the evidence of the blanket or his reasoning process in relation to it, in his notes, report or testimony-in-chief. The photograph was a significant piece of evidence that could impact adversely on the conclusions he reached.
[64] D.C. Sutherland not only failed to disclose the evidence of the blanket and to explain his approach to it, he testified that, based on the photographs, there had been no movement of items at the scene and therefore no presence of an intermediary surface.
[65] Once confronted with the photograph, D.C. Sutherland explained in detail why the movement of the blanket made no difference to his ultimate conclusions. His cross-examination was completed on a Friday and he was re-examined on the following Monday. He testified in re-examination that he had “thought about the blanket a lot over the weekend”. This comment is difficult to reconcile with his evidence that he had already been aware of the evidence and had taken it into account. However, accepting that he had considered and then reconsidered the movement of the blanket, D.C. Sutherland’s explanation demonstrated confirmation bias. He was unwilling or unable to interpret this evidence in a way that was inconsistent with his theory.
[66] In the Report of the Inquiry into Pediatric Forensic Pathology in Ontario (the Goudge Inquiry), the Commissioner recommended written reports that explicitly set out the reasoning process of the expert in order to disclose gaps in reasoning or incorrect assumptions in advance of trial. The Report points out that such a process would as well “assist in avoiding ‘confirmation bias’ – the situation that occurs when anyone, including pathologists and the police, tends to seek out evidence to support or confirm an investigative theory or an expert opinion and excludes other theories or possible opinions. Confirmation bias is closely related to tunnel vision which has been defined as ‘the single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one’s conduct in relation to that information.’”
[67] The failure of a proposed expert to disclose information that would undermine his opinion goes beyond confirmation bias. A similar situation was considered in the Report of The Commission on Proceedings Involving Guy Paul Morin (the Kaufman Commission). Commissioner Kaufman commenting on a Crown expert’s failure to disclose that a search for particular fibres had been conducted, said that the expert witness’s “failure to disclose demonstrates a misapprehension of his role as an independent, neutral scientist. A scientist is not entitled to discount a potential defence position (or indeed a Crown position) and then fail to disclose evidence which might bear upon that position…Mr. Erickson was too easily prepared to discount evidence which could favour the defence.” [15]
[68] In this case, D.C. Sutherland similarly misapprehended his role. He was not entitled to discount the theory that an intermediary surface was implicated without disclosing evidence that might bear upon that theory. I have therefore concluded that the defence has raised a realistic concern that D.C. Sutherland was unable or unwilling to comply with the duty of an expert to provide independent, impartial and unbiased evidence with respect to the re-creation, observation and interpretation of GSR deposition at the scene of Wayne Millard’s death and the position, location and orientation of the firearm at the time that it was discharged and killed Wayne Millard. The Crown has failed to rebut this concern on a balance of probabilities.
[69] The evidence of D.C. Sutherland in these areas (areas 2 to 5 set out in paragraph 34 above) is not admissible.
[70] I have concluded however, that while there are concerns raised with respect to D.C. Sutherland’s ability to give impartial independent unbiased evidence generally, the Crown has rebutted those concerns on a balance of probabilities with respect to D.C. Sutherland’s evidence on the general design and operation of a revolver, including the revolver in this case and with respect to the dispersal of GSR from the muzzle and the cylinder gap of revolvers including the revolver in this case (areas 1 and 2 set out in paragraph 34 above). These areas of evidence are unaffected by the non-disclosure. They are also capable of independent testing.
[71] The evidence of the general operation of this firearm and the general tendency of revolvers to disperse GSR from the muzzle and cylinder gap has little room for subjectivity. It is therefore these areas of evidence alone that pass the threshold analysis and must be subjected to a second-stage analysis. However, in the event that I am wrong in my conclusion that the balance of the evidence of D.C. Sutherland must be excluded at the threshold stage, I will also subject the balance of the evidence to the second stage analysis.
5. The Second Stage – Gatekeeping
[72] The second stage of the admissibility analysis requires that I balance the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks. This inquiry is equally case-specific. It involves the exercise of judicial discretion, not the application of a bright line rule. [16]
[73] This exercise, described by Binnie J. in R. v. J.(J.), [2000] 2 S.C.R. 282, 2000 SCC 51 at para. 47 involves “a cost-benefit analysis to determine whether its value is worth what it costs in terms of its impact on the trial process. Thus the criteria for reception are relevance, reliability and necessity measured against the counterweights of consumption of time, prejudice and confusion.” [17]
[74] As articulated by Watt J.A. in R. v. Shafia, 2016 ONCA 812:
232 The benefit side of this cost-benefit analysis requires a consideration of the probative potential of the evidence, as well as the significance of the issue to which the evidence is directed. Determination of the probative potential of the evidence of necessity requires a consideration of the reliability of the evidence, but not to such an extent as to intrude upon the jury's task in assessing ultimate reliability: Abbey, at paras. 87-89. The independence of the expert and his or her impartiality are also factors: White Burgess, at para. 54. Opinion evidence essential to a jury's ability to understand and evaluate material evidence registers high on the ‘benefit’ scale: Abbey, at para. 94.
233 The ‘cost’ side of the analysis examines the risks inherent in the introduction of expert opinion evidence. Consumption of time. Prejudice. Confusion. Danger that jurors will be unable to make an effective and critical assessment of the evidence. The complexity of the materials. The impenetrable jargon in which the opinion is clothed. Compromise of the trial process by unduly protracting and complicating proceedings: see, Abbey, at paras. 90-92; White Burgess, at para. 54.
234 The product of the judge's cost-benefit analysis of expert opinion evidence tendered for admission — the admissibility decision — is entitled to deference on appellate review, at least in the absence of an error in principle or an unreasonable conclusion: D. (D.), at para. 13; Abbey, at para. 97; R. v. Araya, [2015] 1 S.C.R. 581, 2015 SCC 11, at para. 31.
[75] The consideration of bias of the expert occurs at both stages of the analysis. In White Burgess, the Supreme Court of Canada explained the second stage analysis of bias as follows, at para. 54:
Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence.
[76] The evidence of D.C. Sutherland with respect to the general working of the firearm and the tendency of revolvers to expel GSR from both the muzzle and the cylinder gap is relevant, necessary and reliable. The evidence is not complex but it is beyond the common knowledge of a layperson. These areas of evidence require little subjective analysis. The gun itself is available and the tendency of the revolver to dispel GSR as described could be independently tested. While I have found that the evidence of D.C. Sutherland was tainted by bias, I do not find that the areas of evidence concerning the mechanical operation of the firearm are susceptible to distortion by such bias. The potential for prejudice is minimal.
[77] The probative value of the evidence is significant. The other evidence in the case shows that there was GSR deposited on the eye of the deceased, the right hand of the deceased and the pillow upon which the deceased was found. The evidence of the expulsion of the GSR from the muzzle and the cylinder gap assists in interpreting the scene evidence.
[78] I therefore find that the probative value of the evidence of the operation of the firearm and the expulsion of GSR is admissible. Its probative value outweighs any prejudicial effect.
[79] If I am wrong in deciding that the balance of D.C. Sutherland’s evidence should be excluded at the threshold stage because of bias, I would have excluded it at the second stage of the analysis. The question of whether suicide is a reasonable inference on the evidence is the central issue on this trial. D.C. Sutherland’s opinion with respect to the position of the gun when fired, based on the location of the GSR and the test firing that he conducted is highly probative of that issue. The potential for reasoning prejudice would be low because this is a judge alone trial. It would be open to me to take the weaknesses of the opinion into account in assessing the weight to be given to the evidence. However, there is the potential for prejudice by consuming time in the trial and requiring the accused to respond to the opinion. Given the very minimal probative value of the evidence, the prejudice outweighs the probative value with respect to the opinion evidence that goes beyond the operation of the firearm.
Conclusion
[80] I find that D.C. Sutherland’s evidence with respect to the operation of the firearm and its tendency to expel GSR from the muzzle and cylinder gap is admissible. The balance of his evidence is not admissible. I would have excluded his opinion that he believed that Wayne Millard did not fire the gun on the basis of a lack of necessity. I would have excluded the balance of his evidence on the basis that it did not meet the threshold requirement of a properly qualified expert because D.C. Sutherland demonstrated an unwillingness or inability to give impartial, independent and unbiased evidence. Even if this evidence had met the threshold requirement, I would have excluded it at the second stage because its limited probative value as a result of the bias was outweighed by the potential prejudicial effect.
M. Forestell J.
Released: July 19, 2018
COURT FILE NO.: CR-16-50000176-0000 DATE: 20180719
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Applicant
- and - DELLEN MILLARD Respondent
RULING: ADMISSIBILITY OF EXPERT OPINION EVIDENCE Forestell J.
Released: July 19, 2018
