Court of Appeal for Ontario
Date: May 7, 2018
Docket: C61328
Judges: van Rensburg, Pardu and Miller JJ.A.
Parties
Between
Her Majesty the Queen Respondent
and
Christy Natsis Appellant
Counsel
For the Appellant: Marie Henein and Matthew Gourlay
For the Respondent: Jamie Klukach and Luke Schwalm
Hearing and Appeal
Heard: November 14, 2017
On appeal from: The conviction entered on May 29, 2015 by Justice Neil L. Kozloff of the Ontario Court of Justice, with admissibility ruling reasons reported at 2014 ONCJ 532 and reasons for judgment unreported.
Decision
Pardu J.A.:
Introduction
[1] The appellant was convicted of impaired driving causing death and dangerous driving causing death pursuant to ss. 255(3) and 249(4) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge found that she crossed the centre line of a highway and crashed head on into an oncoming vehicle, killing the other driver, Bryan Casey. The appellant was sentenced to five years' imprisonment.
[2] The appellant appeals her conviction and submits the trial judge erred in two respects:
(a) by admitting the expert opinion evidence of a police accident reconstruction officer who was unable or unwilling to provide the court with fair, objective, and non-partisan evidence; and
(b) by refusing to exclude that expert evidence because the Crown failed to preserve and disclose the expert's draft reports.
[3] I would dismiss the appeal for the reasons that follow.
Factual Background
[4] The appellant was drinking alcohol at a bar at around 6:00 p.m. on the evening of March 31, 2011. She left the bar, got into her vehicle, and drove westbound along Highway 17.
[5] The appellant crashed head on into the victim's vehicle shortly before 8:00 p.m. on Highway 17. The victim was driving eastbound. Ontario Provincial Police ("OPP") officers and traffic accident reconstruction experts were called to the scene.
[6] Constable Kelly, an OPP officer, arrived on the scene at 11:51 p.m. on March 31, 2011. He was a Level III Technical Collision Investigator. He examined the scene by making observations and taking measurements. He also supervised another officer, McNish, who took photographs. Notably, Kelly observed a deep gouge in the eastbound lane that was closer to the shoulder than the centre line. Kelly noted that the debris field was more concentrated in the eastbound rather than the westbound lane.
[7] Kelly re-examined both vehicles after they were towed away from the scene. At that time, Kelly noticed that the undercarriage of the victim's vehicle was significantly damaged and bent while the appellant's car did not suffer similar damage. Kelly came to the conclusion that the victim's vehicle caused the gouge in the road and that the location of the gouge indicated where the collision occurred. Kelly testified that in his opinion the appellant's vehicle crossed the centre line and crashed head on into the victim's vehicle; the appellant's position at trial was that the victim crossed into her lane and caused the accident.
Should the Expert Opinion Evidence Have Been Excluded Because of Bias?
[8] The appellant submits that the trial judge erred in admitting Kelly's expert opinion evidence. The appellant submits that Kelly's evidence was so tainted by bias that his evidence should have been excluded.
[9] The Supreme Court's decision in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 is the governing authority dealing with the effect of bias on the treatment of expert evidence. Although the admissibility decision in this case preceded White Burgess, the trial judge nevertheless applied the same test, based on Professor Paciocco's work (as he then was), that was later adopted by the Supreme Court in White Burgess.
[10] It is common ground that the trial judge articulated the correct test; the appellant submits that he erred in applying that test.
[11] I extract the following principles concerning the admissibility of expert evidence from White Burgess, at paras. 46-54:
(a) Expert witnesses have a duty to assist the court that overrides their obligation to the party calling them. If the witness is unable or unwilling to fulfill that duty, their evidence should be excluded.
(b) An expert's attestation or testimony recognizing and accepting their duty to the court will generally suffice to meet the threshold for admissibility as it relates to bias.
(c) The burden rests on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable or unwilling to comply with their duty to the court.
(d) If the opposing party establishes that there is a realistic concern, then the party proposing to call the evidence must establish that the expert is able and willing to comply with their duty to the court on a balance of probabilities. If this is not done the evidence, or those parts of it that are tainted by a lack of independence or impartiality should be excluded.
(e) Even if the evidence satisfies the threshold admissibility inquiry, any concern about the expert's impartiality and independence is still a relevant factor in weighing the R. v. Mohan, [1994] 2 S.C.R. 9 factors for admissibility – such as relevance, necessity, reliability, and absence of bias. Bias remains a factor to be considered in determining whether the potential helpfulness of the evidence is outweighed by the risk of the dangers associated with that expert evidence.
(f) Expert evidence will rarely be excluded for bias; anything less than clear unwillingness or inability to provide the court with fair, objective, and non-partisan evidence should not result in exclusion. Rather, bias must be taken into account in the overall weighing of the costs and benefits of receiving the evidence. Context is important. Both the extent of the expert's alleged bias and the nature of the proposed evidence are relevant.
The Trial Judge's Decision
[12] The Crown proffered Kelly as an expert in a number of areas related to accident reconstruction:
a. Collision Investigation and Analysis, including
i. Gouges, scrapes, and scratches on roads, ii. Motor Vehicle Collision Debris Fields, iii. The Evaluation of Motor Vehicles involved in Collisions, iv. The Interpretation of Tire Marks at Collision Scenes, v. Speed Calculations and Distance Calculations, vi. Co-Efficient of Friction Measurement Using the Vericom VC-3000 accelerometer, and vii. Measurement of Collision Scenes, including the use of levels and the Sokkia SRX5 Total Station;
b. The Interpretation of Airbag Control Module Data, alternatively known as Restraint Control Module Data or Event Data Recorders; and
c. Perception Reaction time.
[13] The trial judge restricted the scope of Kelly's opinion evidence, at paras. 195-96 of his admissibility reasons, to "analyses and opinions based directly upon his personal observations, calculations and measurements as documented by his field notes and in the photographs taken by him or at his direction." The trial judge stated, "specifically, I will admit portions of his 'collision investigation and analysis', namely the identification, location, and significance of gouges, scrapes, and scratches on roads, the identification, location, and significance of motor vehicle collision debris fields, and the evaluation of motor vehicles involved in collisions." He also allowed Kelly to testify about speed calculations, though that evidence was largely redundant because of information downloaded from the vehicles' data recording systems.
[14] The trial judge concluded that there was a realistic concern that Kelly was biased, but he was not satisfied that it was probable that Kelly would be unable to present independently and impartially, those portions of his expert testimony that otherwise satisfied the Mohan prerequisites.
Analysis
[15] On appeal, the appellant reiterates the arguments made to the trial judge. The appellant argues that Kelly's evidence was so tainted by bias that it ought to have been excluded.
[16] I begin with the observation that, absent an error in principle or an unreasonable ruling, a trial judge's decision as to the admissibility of expert evidence is entitled to deference: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 230 and 234; and R. v. McManus, 2017 ONCA 188, at para. 68.
[17] The trial judge dealt with all 29 aspects of Kelly's conduct alleged by the appellant to show Kelly's bias. Summarized, the appellant submits that Kelly saw himself, to some extent, as part of the investigative "team" rather than an independent expert. He selectively omitted from his report evidence that was favourable to the appellant, such as statements by a witness that she did not think the appellant was drunk and the appellant's statement at the accident scene that the victim's vehicle crossed into her lane. Kelly also proposed to testify about vehicle electronic data records – a field outside his areas of expertise. Finally, Kelly concluded very quickly after arriving at the accident scene that the appellant's vehicle had crossed the centre line and hit the victim's vehicle head on.
[18] The trial judge made the following observations about Kelly's evidence at paras. 181-83 of his admissibility reasons:
With that said, the evidentiary record as a whole suggests that Kelly (a) was unaware of, (b) did not fully appreciate, or (c) at worst, was prepared to contravene one of the fundamental requirements of an expert witness, namely that he be independent, unbiased and impartial.
I do not believe or even suspect that Kelly did so out of any malice. Kelly testified that he believed he was independent, impartial and unbiased, and I have no reason to disbelieve him. He simply did not know any better.
The evidentiary record also suggests that Kelly (a) was unaware of, (b) did not fully appreciate, or (c) at worst, was prepared to contravene (another) one of the fundamental requirements of an expert witness, namely that the expert "must be qualified to offer an opinion" and "must possess special knowledge and experience in relation to the matters in issue".
[Emphasis in original.]
[19] The principles underlying the traffic accident reconstruction evidence admitted in this case do not amount to novel scientific evidence. There was no challenge to the following principles:
(a) When two vehicles collide head on, the undercarriages are forced downward into the road surface, causing scrapes and gouges in the road at the point of impact.
(b) The gouges tend to be deepest at the point of impact.
(c) When two vehicles collide, debris from the vehicles will be compressed between them. As the vehicles separate a large part of the debris will fall at the area where the vehicles separate.
(d) Damage to the undercarriage of a vehicle can indicate which vehicle caused the gouge to the road surface.
[20] Kelly's observations and measurements, and the photographs taken at the accident scene, were admissible as factual observations whether or not his opinion evidence about the conclusions he drew from those observations was admitted.
[21] There was a deep gouge in the eastbound lane. This gouge was closer to the shoulder than the centre line and was caused by one of the vehicles involved in the accident. There was significant damage to the undercarriage of the victim's vehicle but no such similar damage to the undercarriage of the appellant's vehicle. Kelly therefore concluded that the deep gouge was caused by the victim's vehicle when it was struck in the eastbound lane. Moreover, the debris field cast by the accident was substantially in the eastbound lane.
[22] Despite his many criticisms of Kelly, and his conclusion that there was a realistic concern that Kelly might be biased, the trial judge concluded that Kelly was able to give his evidence, as circumscribed by the trial judge, impartially. The trial judge ultimately held, at para. 431 of his reasons for judgment, that Kelly's conclusion that the accident occurred in the eastbound lane was "both logical and evidence-based" and that he could rely on Kelly's evidence which was based on the location of the deep gouge, scrapes on the road, and the location of the debris field.
[23] Here, the trial judge considered the factors that suggested bias four times in his analysis: at the threshold bias inquiry; at the bias inquiry; at the Mohan admissibility inquiry; and also when considering the weight to be given to Kelly's evidence.
[24] I see no basis to interfere with the trial judge's conclusions regarding the admissibility of Kelly's evidence. I agree that the degree of subjectivity associated with an expert's opinion is a relevant factor in assessing whether conduct suggesting bias leads to the conclusion that the expert will not be able to give evidence independently and impartially.
Should the Expert Opinion Evidence Have Been Excluded Because the Crown Did Not Keep or Disclose Draft Reports?
[25] The appellant argued before the trial judge that the Crown had failed to honour its disclosure obligations by failing to "maintain and disclose all draft reports, inclusive of all additions, deletions, changes, edits, corrections and the documentation surrounding them."
[26] The trial judge rejected the proposition that draft reports had to be disclosed at paras. 212-217 and 219-221:
Every change made to an expert report while it is a work in progress effectively creates a new draft. Hypothetically, a TTCI or Collision Reconstructionist could prepare numerous drafts – making all kinds of additions, deletions, edits, corrections and other material changes – before submitting a final draft to the peer reviewer.
He may well consult with colleagues in order to develop, confirm, or enhance the opinion(s) contained in the draft. As long as he is otherwise qualified to offer an opinion and possesses special knowledge and experience in relation to the matter in issue, any opinion he does express is admissible (subject to the other Mohan prerequisites) as his own.
The TTCI or Collision Reconstructionist might then prepare numerous drafts – making all kinds of additions, deletions, edits, corrections, and other material changes – following receipt of the draft report back from the peer reviewer and before submission of his final report to the Crown.
Taking the defence position to its logical conclusion, the proposed Crown expert would be required to maintain each and every one of the drafts that were prepared along the way to the final version and turn them over to the Crown for disclosure to the defence. I do not believe that is either a sensible or necessary requirement.
That is not, however, the end of the story.
A related question to be addressed is whether a draft report prepared by a police officer and submitted to a fellow officer for review constitutes "relevant evidence".
Even if there is no obligation on the Crown to preserve draft reports – or, putting it more narrowly, even if there is no obligation on police witnesses expecting to be proffered as expert witnesses to (a) preserve all drafts of their reports prepared prior to, and as submitted for, peer review, and, as received back with comments (if any) following peer review, and, as changed following peer review and before completion of the "final" report; and (b) to turn over all of the drafts referred to above to the Crown for disclosure to the defence – the unavailability of the draft report prepared and submitted by Kelly to Kern does have negative consequences for the Crown. It complicates the Crown's task of satisfying its burden of establishing that Kelly is qualified to offer expert opinion evidence because he possesses special knowledge and experience in relation to the matters in issue.
In that sense, the draft report submitted by Kelly to Kern for peer review – had it been preserved and disclosed – would have been relevant evidence in relation to the [fourth] Mohan prerequisite.
As noted above, its unavailability is one of the reasons why I have excluded significant portions of Kelly's evidence.
[27] On appeal, the alleged breach of disclosure obligations is narrowed to the failure to produce the final version of Kelly's report submitted to a more senior officer, Kern, for peer review.
[28] I agree with the observations of the trial judge at para. 220 that "had it been preserved and disclosed – [it] would have been relevant evidence".
[29] This document was relevant for two reasons. First, it concluded with a finding that the appellant was on her own side of the road at the time of the accident. Second, the number of errors in the report cast doubt on the author's competence, and the failure of a more senior accident investigator to catch the errors cast doubt on his competence.
[30] The Supreme Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326, explicitly contemplates, at para. 18, that the Crown will have to disclose material that it cannot put into evidence itself, but that the defence may use in cross examination. As noted further in Stinchcombe, at pp. 345-346, "[i]f the information is of some use then it is relevant and the determination as to whether it is sufficiently useful to put into evidence should be made by the defence and not by the prosecutor."
[31] Given its relevance, the Crown should have disclosed Kelly's final version of his report submitted for peer review. This document constituted fruits of the investigation in the hands of police: see R. v. Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, leave to appeal refused, [2016] S.C.C.A. No. 38, at paras. 79-82.
[32] The Crown's failure to disclose the document violated the appellant's s. 7 Charter rights. I am not satisfied, however, that this could possibly affect the reliability of the resulting decision or the fairness of the trial process. In R. v. Dixon, [1998] 1 S.C.R. 244, the Supreme Court noted, at para. 23:
The right to disclosure of all relevant material has a broad scope and includes material which may have only marginal value to the ultimate issues at trial. It follows that the Crown may fail to disclose information which meets the Stinchcombe threshold, but which could not possibly affect the reliability of the result reached or the overall fairness of the trial process. In those circumstances there would be no basis for granting the remedy of a new trial under s. 24(1) of the Charter, since no harm has been suffered by the accused.
[33] More recently, Juriansz J.A. described the consequences of a failure to make disclosure in R. v. Tossounian, 2017 ONCA 618, 354 C.C.C. (3d) 365, at para. 15:
The appellant has the constitutional right to disclosure of all material that could reasonably be of use in making full answer and defence of the case against her as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. At this stage, in order to be entitled to a remedy under s. 24(1) of the Charter, the appellant bears the onus of establishing two things. First, she must establish on a balance of probability that the Crown breached its obligation to make proper disclosure. Second, if she does so, she must go on to establish that the Crown's failure to disclose impaired her right to make full answer and defence: R. v. Dixon, [1998] 1 S.C.R. 244, at para 31.
[34] Here, both Kelly and Kern testified that Kern made no substantive changes to Kelly's report. Documentation completed by Kern at the time of the review confirmed that he only made grammar, verb tense, and formatting changes. Kern does not appear to have undertaken an in-depth review of Kelly's report. For example, Kern missed Kelly's misstatement of his final conclusion when Kelly said the appellant was in her own lane at the time of the collision.
[35] Defence counsel's meticulous and exhaustive cross examination revealed all the weaknesses in Kelly's and Kern's evidence. The appellant suffered no harm from the failure to disclose Kelly's final report submitted for peer review. The trial judge's limitation of the scope of Kelly's admissible expert evidence out of concern for his competence was sufficient to address any violation of the appellant's right to disclosure of that report. The appropriate focus in most cases of late or insufficient disclosure under s. 24(1) is the "remediation of prejudice to the accused" and the "safeguarding of the integrity of the justice system": R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 26.
[36] I am not satisfied that the failure to disclose "impaired the right to make full answer and defence:" Stinchcombe, at p. 348. No further remedy is appropriate or just pursuant to s. 24(1) of the Charter.
Conclusion
[37] Accordingly, I would dismiss the appeal.
"G. Pardu J.A."
"I agree K. van Rensburg J.A."
"I agree B.W. Miller J.A."
Released: May 7, 2018
