RULING ON ADMISSIBILITY OF EXPERT EVIDENCE

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Christy Natsis

Before: Justice Neil L. Kozloff

Relevant Portions of the Voir Dire on Admissibility of Expert Evidence

Conducted March 13, 14, 15, 18, 19, 20, 21, and 22, 2013; April 15, 16, 17, 18, 22, and 23, 2013; November 6, 12, 13, 14, 15, 18, 19, 20, 21, and 22, 2013; December 9, 10, 11, 12, and 13, 2013; May 12, 13, 14, and 15, 2014.

Written Submissions delivered by the Defence on May 30, 2014

Written Submissions delivered by the Crown on June 6, 2014

Reasons released to the parties on September 8, 2014

Counsel:

• J. Ramsey and J. Daller for the Crown
• M. Edelson, W.V. Clifford, and S. Friedman for the Defendant Christy Natsis

OVERVIEW

[1] Dr. Christy Natsis (hereinafter "Natsis") was charged with the Criminal Code offences of Impaired Operation of a Motor Vehicle Causing Death, Operate a Motor Vehicle with Over 80 mg. of Alcohol in her Blood Causing Death, and Dangerous Operation of a Motor Vehicle Causing Death, arising out of a motor vehicle accident that occurred shortly before 8:00 p.m. on March 31, 2011 on Highway 17 at the township of McNab, Grayside. The vehicle driven by Natsis, a 2010 Ford Expedition, collided head on with a 2009 Dodge Dakota driven by Bryan Casey (hereinafter "Casey"). Casey died from the injuries he suffered in the collision.

[2] The trial commenced before me on November 13, 2012. On March 13, 2013, we entered into a voir dire regarding the admissibility of the evidence of inter alia three police witnesses – Ontario Provincial Police (hereinafter "O.P.P.") Constables Shawn Kelly (hereinafter "Kelly"), Jeffrey John Hewitt (hereinafter "Hewitt"), and Robert Michael Kern (hereinafter "Kern"). All three officers are collision re-constructionists. Specifically, Kelly is a level 3 Technical Traffic Collision Investigator. Hewitt is a level 4 Accident Re-constructionist. Kern is a level 4 Accident Reconstructionist and the O.P.P.'s lead reconstructionist in the East Region.

[3] The Crown seeks the admission of the evidence of Kelly, Hewitt, and Kern – and, in the case of Kelly (Exhibit "MM") and Hewitt (Exhibits "XXX" and "YYY"), their reports - as expert evidence.

[4] Kelly is being proffered by the Crown as an expert technical traffic collision investigator in the following subcategories:

a. Collision Investigation and Analysis, including:

• i. Gouge, 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.

[5] Hewitt is being proffered by the Crown as an expert accident reconstructionist in the following subcategories:

a. Collision Investigation and Analysis, including:

• i. Gouges, Scrapes, Scratches on the Road,
• 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 and Distance Calculations,
• vi. Lateral Movement of Vehicles Involved in Collisions,
• vii. Co-efficient of Friction Measurement and Analysis, and
• viii. Measurement and Analysis of Collision Scenes;

b. Interpretation of Restraint and Powertrain Control Module Data and Event Data Recorder Analysis; and

c. Perception Reaction (Response) Time.

[6] Kern is being proffered by the Crown as an expert accident re-constructionist in the following areas:

a. Collision Investigation and Analysis, including:

• i. Gouges, Scrapes, Scratches on the Road,
• 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 and Distance Calculations,
• vi. Lateral Movement of Vehicles Involved in Collisions,
• vii. Co-efficient of Friction Measurement and Analysis, and
• viii. Measurement and Analysis of Collision Scenes;

b. Interpretation of Restraint and Powertrain Control Module Data and Event Data Recorder Analysis; and

c. Perception Reaction (Response) Time.

[7] The defence objects to the admissibility of the evidence of Kelly, Hewitt and Kern.

[8] More particularly, it is the position of counsel for the defence that Kelly is neither independent nor impartial but rather biased in favour of the prosecution; that his report is tainted with confirmation bias and tunnel vision, and that his approach is therefore at odds with the objective, scientific method; and, in addition, that Kelly is not credible, reliable, honest, or forthright; and accordingly, that the Court should exercise its "gatekeeping" function and refuse to admit Kelly's evidence.

[9] Counsel for the defence argue that likewise, Hewitt is not an independent or impartial expert, and is also biased in favour of the prosecution; that his report, like the Kelly report upon which it is based, is infected with the twin viruses of tunnel vision and confirmation bias; and accordingly, that the Court should exercise its "gatekeeping" function and refuse to admit P.C. Hewitt's evidence.

[10] Counsel for the defence argue that Kern has also demonstrated to the Court that he is biased and partial to the prosecution; that his "peer review" of the reports of Kelly and Hewitt - far from being an objective and independent check on their work - is itself tainted with confirmation bias and partiality; and accordingly, that the Court should exercise its "gatekeeping function" and decline to admit his proposed expert opinion evidence.

[11] For their part, Crown counsel take the position that Kelly, Hewitt, and Kern have all demonstrated the required competence, knowledge, and objectivity required of expert witnesses pursuant to the Supreme Court's decision in R. v. Mohan, and, that it would be wrong in law to exclude evidence for reasons that, if established, go to the weight of the evidence rather than its admissibility.

[12] They say that the evidentiary record does not support findings of bias, lack of independence, partiality, or lack of competence against Kelly, Hewitt, Kern, or any of them; rather it supports findings of good intentions, good faith, and good evidence.

[13] The parties have agreed that the evidence heard on the voir dire will apply to the trial proper, subject to my ruling(s) on admissibility. The Crown has now completed and closed its case.

[14] This is my ruling on the admissibility of the evidence of Kelly, Hewitt, and Kern.

FACTUAL BACKGROUND

[15] I propose to make reference to those portions of the evidence heard on the trial proper that inform and/or provide context to the issues being addressed herein.

[16] At 7:58 p.m. on March 31, 2011, Provincial Constable Dunfield (hereinafter "Dunfield") of the O.P.P. Arnprior detachment was dispatched by his Communications Centre to the scene of a head-on motor vehicle collision involving personal injury on Highway 17 just south of the town of Arnprior and just west of the new White Lake Road overpass then under construction.

[17] Dunfield was the first officer on the scene, arriving within three minutes of the call. Upon arrival, he immediately commenced an investigation of the accident scene. The accident was severe. It was an apparent two vehicle head-on collision, with significant high-impact damage to both vehicles.

[18] Dunfield's survey of the accident scene led him first to a white Dodge Dakota located on the south side of the highway facing east, and then to a black Ford Expedition SUV located on the north side of the highway facing south. He conducted a visual inspection of the white Dodge vehicle and its lone occupant Casey, and immediately thereafter approached the black SUV and had dealings with the driver and lone occupant Natsis.

[19] Dunfield noted the significant damage to her vehicle and also observed that all the airbags had deployed.

[20] In his memo book, Dunfield noted: "It appeared that the accident was in the E/B lane as most of the debris pile was in the E/B lane. There was a trail of glass and debris leading up to a Blk Ford Expedition in the W/B lane ditch."

[21] Provincial Constable Besner (hereinafter "Besner") and Provincial Constable Limlaw (hereinafter "Limlaw") of the O.P.P. Renfrew detachment were also dispatched to the motor vehicle collision; however, they had been attending at a call in the Town of Renfrew, did not leave there until 8:07 p.m., and arrived on scene at 8:21 p.m.

[22] Dunfield noted the arrival at the scene of Besner and Limlaw. Dunfield went to speak to Limlaw regarding the investigation. Dunfield advised Limlaw that in his opinion Natsis was impaired by alcohol, that she was "stumbling drunk", and asked him whether or not he and Besner wanted to take the accident scene or if they wanted to deal with the impaired. According to Dunfield, Limlaw agreed that Dunfield would take the impaired, given that Dunfield had developed the grounds to arrest Natsis.

[23] Dunfield asked Limlaw if he would approach Natsis and provide him with a 'second opinion' regarding his observations "(or) if she was impaired or not".

[24] Once Dunfield had pointed her out, Limlaw approached Natsis, who appeared intoxicated to him. He noted that her eyes were glassy and bloodshot. When he spoke to her, Limlaw noted the odour of alcohol directly on her breath, and that as she stood there she swayed back and forth, forward to backward.

[25] While Limlaw had approached and conferred with Dunfield on their arrival at the scene, Besner had headed for the Dodge Dakota. He observed Casey still in the vehicle and being tended to by firefighters and paramedics.

[26] Besner observed debris in the eastbound lane that led him to believe that the collision had occurred in the eastbound lane and to assume that the black Ford Expedition had crossed the centre line into the eastbound lane and the path of the Dodge Dakota.

[27] Besner testified that, from a distance of about fifteen feet, he observed Dunfield with a female (Natsis) he had not noticed up to that point, standing by the black Ford Expedition. As he made his way over to them, he observed that the female was standing in one spot but swaying back and forth. Besner said it was obvious to him – even while he was walking over to the female – that she appeared "heavily intoxicated, impaired".

[28] As he got closer to Natsis, Besner observed her eyes to be red and glossy. During the course of the trial, he said he recalled her slow movements whenever she looked up to him, and that all the muscles in her face were relaxed.

[29] Besner testified that as he got to within one to two feet of Natsis, he noted a very strong odour of an alcoholic beverage coming from her breath. Besner said he may have asked "Is this her?" and may have asked Dunfield, "Is she under arrest yet?" He did not speak to Natsis, nor did she say anything in his presence, before he told Natsis that she was under arrest for impaired causing bodily harm, handcuffed her to the rear, and walked her towards Limlaw and his cruiser. A demand for breath samples followed shortly thereafter.

[30] Casey was removed from his vehicle and rushed by ambulance (initially) to the hospital in nearby Arnprior. He received several units of blood and a considerable quantity of saline (Ringer's) solution before being transferred to the Queensway Carleton Hospital where he died on the operating table from his injuries (multiple trauma) at or about 10:31 p.m. that same evening.

[31] Following her arrest, Natsis was taken to the same hospital in Arnprior. After a brief medical examination, she was returned to the custody of Besner and Limlaw at which time she provided two samples of her breath. Intoxilyzer samples were obtained from Natsis by Limlaw at 10:33 pm and 10:58 pm: the readings were 209 and 198 (milligrams of alcohol per 100 millilitres of blood) respectively. The Intoxilyzer results have been excluded by me on account of violations of the accused's constitutional rights under section 10(b) of the Canadian Charter of Rights and Freedoms (the Charter). I make reference to them solely because of the issues under consideration on this voir dire.

[32] Witness statements were provided by a number of individuals at the scene on March 31, 2011 – among them Gilles Lajeunesse (hereinafter "Lajeunesse"), Christian Bissonette (hereinafter "Bissonette"), and Anne Lavoie (hereinafter "Lavoie").

[33] The Lajeunesse statement said he had seen "a black car pass me closely so close to my truck fast around 120-130"… "passing a car by the right"… "at the 417 about 5-6 km from here"…"very fast, dangerous driving, passing him and after passing a vehicle on the right side."

[34] The Bissonette statement said he had seen "the black vehicle almost hit the wall in the construction"… (travelling) "westbound".

[35] The Lavoie statement said she had seen "the black car in the construction almost hit the wall and she was doing sudden movements then she didn't stop after almost hitting the wall. That car was going very fast".

[36] An autopsy was performed on Casey at the Eastern Ontario Regional Forensic Pathology Unit in Ottawa on April 2, 2011 by Dr. Jacqueline Parai (hereinafter "Parai"). She testified that the cause of death was multiple trauma, that the trauma would have led to internal bleeding, that with the bleeding there would have been an inability for circulation to continue, that enough blood would not have been able to reach the vital organs, and that death would have thereby resulted.

[37] Kelly attended the autopsy. Parai explained that she "will debrief with the officers prior to conducting the autopsy, but the cause of death is reached independent of the circumstances under which the accident occurred." She testified that according to her notes made at the time of autopsy, Kelly told Parai that the westbound (Natsis) vehicle was travelling at a high rate of speed – approximately 140-150 kilometres per hour – heading into (and) entering Arnprior; (that) the driver (Casey) of the eastbound pickup truck tries to avoid her; (and, that) she veers into his lane – head on impact".

[38] Kelly also told Parai that the female driver had been charged with impaired cause death and dangerous driving. He showed her scene and vehicle photos from which she made relevant notes (airbags deployed, significant damage to front of both cars).

[39] At the time of the autopsy, two samples of the deceased's blood were obtained and submitted along with a sample of (Casey's) hospital blood (drawn on March 31st at 10:10 pm) to the Centre of Forensic Sciences for testing. The test results of the three samples – contained in CFS reports dated May 24, 2011 and July 11, 2011 - ranged from (an ethanol level of) 130 to 142 milligrams per 100 millilitres of blood (as recorded in the July 11 report) to 145 milligrams per 100 millilitres of blood (as recorded in the May 24 report).

[40] Parai opined that "physiologically, it would be logical to assume that the bleeding … started to occur when the injuries occurred". According to Casey's medical chart from the Arnprior Hospital Emergency Department, Casey received four (4) litres of saline and four (4) units of blood. It is unclear whether he received the entire amount at the Arnprior Hospital or whether he received some saline and/or blood while being transported to Queensway Carelton, and/or whether he received some and/or an unknown additional amount of saline and or blood in the ambulance and/or at the Queensway Carelton Hospital prior to death.

RELEVANT EVIDENCE ON THE VOIR DIRE

Constable Kelly

[41] Kelly had been a police officer for 27 years when he began his testimony. He had 12 years of experience as a Level III Technical Traffic Collision Investigator (hereinafter "TTCI") with the O.P.P. Prior to being certified as a Level 3 TTCI, Officer Kelly was trained for over 200 hours by various (O.P.P and other) experts - including ACTAR (Accreditation Commission for Traffic Accident Reconstruction) certified - in the field of collision reconstruction.

[42] At 9:20 p.m. on Thursday, March 31, 2011, Kelly was called from his residence to attend the scene of the accident. Kelly attended the accident scene arriving at 11:51p.m. On his arrival, Kelly met with Sergeant Terry McIntyre (hereinafter "McIntyre") and Technical Traffic Collision Investigator Adam McNish (hereinafter "McNish"). The highway had been closed. The lighting "was just from cruiser lights."

[43] Utilizing a "really bright flashlight", after conducting an initial scene survey with McIntyre and McNish, Kelly undertook the primary accident scene investigation, which he explained entailed (a) an examination of the involved vehicles including the damage they had sustained and their location following impact; (b) the identification, location and concentration of relevant accident debris; (c) the identification and location of gouges, scrapes, and scratches to the road surface; (d) the measurement of the scene - using instruments designed for that purpose - including the location of relevant items; (e) the preparation of a sketch to scale – using instruments designed for that purpose - intended to illustrate the various locations of the vehicles, debris, gouges, scrapes and scratches; and (f) the preparation of field notes, documenting all of the foregoing.

[44] At his direction, McNish took photographs intended to document what Kelly refers to in his Final Report (Exhibit "MM") as "key physical evidence throughout the scene including but not limited to roadway evidence, angles, debris, marks left on the vehicles involved, and their relative position". The photographs entered as exhibits show the area of the collision from various directions, distances and vantage points, the condition and location of the vehicles, the debris field, and the gouges, scrapes and scratches.

[45] It would appear from the Collision Description - Form LE092 at Appendix "A" of Exhibit "MM" – that shortly after his arrival and certainly by the time Kelly left the scene at 5:31 a.m. on Friday, April 1, 2011, Kelly (and McNish) had concluded – or, had at the very least developed the working theory - that the black Expedition (driven by Natsis) had crossed the centre line and struck the white Dakota (driven by Casey) head on.

[46] Kelly resumed his investigation later on the afternoon of April 1st. At 4:50 p.m., he was at Dwaine's Towing in Renfrew examining both of the involved vehicles. At 7:00 p.m., he returned to the accident scene to check for tire marks (now that the highway was dry). He took additional (daylight) photos of the scene, in particular the gouge - located 2.6 metres south of the centre line near the south paved shoulder and marked by him on his initial attendance as "A" – which Kelly believed (and opined in his Final Report) was "indicative of the area of impact".

[47] On April 2nd following the Casey autopsy, Kelly attended at the Ottawa detachment of the OPP where he met and had a discussion with Constables Poirier and Guy in connection with this case. It was agreed that a search warrant would be obtained for the Natsis vehicle, and, that the Ford's power train module (hereinafter PCM) would have to be removed and sent to Ford as the O.P.P did not have the software required to download the data. It was also decided that a mechanical inspection of the Ford would be done by O.P.P Constable Unhola (hereafter "Unhola"), a T.T.C.I. and collision mechanic.

[48] Over the next several days, Kelly worked on the warrant. On April 5th, he received an email from Besner regarding possible rear end damage to the Ford. Besner had interviewed two witnesses on the 2nd – Mersiha Mesic and Jenna Richardson – who had heard about the fatal collision and contacted the O.P.P. Both had seen a woman they believed was impaired leaving the parking lot of the Jack Astors and Crazy Horse - licenced establishments located just off Hwy. 417 in Kanata - at between 7:15 p.m. and 7:30 p.m. on March 31st, driving a black Ford Expedition. As she pulled out of her parking space, the woman backed her vehicle into a parked Mazda 3 vehicle before driving away. Their description of the woman – including her clothing and accessories – was consistent with how Natsis had appeared to Besner while she was in his custody.

[49] On April 6th, Kelly attended Dwaine's Towing and took some additional photos of the Ford and the Dodge. His visual examinations of the undercarriages of the Ford and of the Dodge – in particular his observations there were no fresh or heavy scraping marks visible on the Ford's undercarriage and that the Dodge's permanent cross member had apparently bent in an "S" shape at impact - led him to conclude that it (the Dodge's bent cross member) had caused the gouging in the pavement marked by him as "A" and referred to by Kelly as "indicative of the area of impact."

[50] Placing his evidence regarding gouge "A" and his conclusion regarding its cause in context, Kelly explained that during the maximum engagement of two vehicles colliding head-on, the undercarriages are forced downwards onto the road surface, causing gouging and scrapes.

[51] On April 13th Kelly and Unhola attended at Dwaine's Towing. Kelly took some additional photographs of the back right side of the Ford Expedition, depicting what he noted at the time as "damage to right rear corner of vehicle just under lower part of plastic bumper…showing fresh damage scrape in an upward position...dirt underneath and over top of scrape…paint peeling off plastic bumper also no dirt fresh damage."

[52] Unhola performed a mechanical inspection on, and removed the RCM and PCM from, the Ford. Unhola opined that the (Natsis) vehicle was in good pre-collision condition, and that whatever the cause of the collision was, it was not due to the previous mechanical condition of the vehicle.

[53] The O.P.P. did not have the means to download the RCM or PCM data. Accordingly, Kelly initiated contact with Gregg Jude (hereinafter Jude) of Ford Motor Company's Canadian head office in Oakville immediately following the removal of the modules.

[54] With regard to the Ford RCM, based upon the information he received from Judd, Kelly contacted Autoliv in Michigan on April 15th. As directed by the response he received, on April 30th Kelly contacted Steven Binder, a field investigation engineer employed by its manufacturer, Autoliv Electronics America.

[55] Kelly's letter to Binder - dated and emailed on April 30, 2011 Exhibit "GGG" - is set out (unedited and in full) below:

Dear Mr. Binder:

I am writing you today in reference to a Restraint Control Module ("RCM") (Part #U222, serial #AL14-14B321-GB) from a 2010 Ford Expedition (vehicle identification number – VIN #1FJU2A58AEB6984). This "RCM" was seized under a Criminal Code Search Warrant signed by a Justice here in Ontario, Canada. The above Ford Expedition was involved in a two vehicle fatal crash on Provincial Highway #17, west of Ottawa, Ontario (head on collision).

The driver of the Ford Expedition has been criminally charged with Dangerous Driving and Impaired driving (D.U.I.) causing death.

The "RCM" was seized by myself, as a Technical Collision Investigator for the Ontario Provincial Police. I will be requesting to have this device downloaded in order to support the investigation and for disclosure in the above criminal charges before the court.

In order to assist The Ontario Provincial Police in our investigation and also the Canadian Criminal Court system, I would like to request a waiver of your standard fee of $800.00.

I would like to emphasize that this download would be used as evidence in criminal prosecution and to assist the courts in any proceedings and/or their findings. This is not for a civil matter.

As this case is presently ongoing, this memo is being sent via email. In order to expedite this request, I would ask that you contact me with your response through my email address at shawn.kelly@ontario.ca. If this is not possible, please phone our office above.

I look forward to hearing from you. Thank you for your time.

[56] Following an exchange of documents, Binder received the module from Kelly on May 9th.

[57] Binder explained that the RCM records crash data including, but not limited to, vehicle speed, requested acceleration (percentage the accelerator pedal was depressed), if and when the brake pedal was depressed, and if and when the ABS was activated. The data – in this case the last five (5) seconds broken down in tenths of a second - is locked in at the time of a significant crash event as a result of the vehicle decelerating and "waking up" the module (algorithm wakeup) in order to determine if the airbags should be deployed. The ACM also records if a command was received to deploy the air bags, as well as the time elapsed from "key-on" (when the vehicle is turned on) to algorithm wakeup.

[58] Binder downloaded the crash data and diagnostic codes, decoded them, and reported back to Kelly with a document entitled "Restraint Control Module Analysis" on May 12, 2011.

[59] With regard to the Ford PCM, on April 18, 2011 Kelly sent the module to Ford in Oakville as directed along with the completed forms Ford required to proceed with his request for the download.

[60] On May 24, 2011, Kelly wrote to Mr. Ramsey copying Besner. He advised that he had yet to receive the PCM download from Ford. He wrote: "Without this, I am unable to complete my Technical Collision Report. Also, I am awaiting notes from some other TCIs…As a result, the disclosure that defence is requesting will not be avail." He then suggested that on the next court date (June1, 2011) the matter be put over "for at least another month to ensure complete disclosure has been provided".

[61] On June 10, 2011, Kelly wrote to Mr. Ramsey again, advising that he would be sending his report for checking and approval (presumably a reference to peer review). He wrote: "However, I have been advised that the collision report is not complete without the Powertrain Control Module download (which I have still not received from Ford in Oakville, despite numerous calls."

[62] That same day - June 10, 2011 - following some correspondence between Ford Oakville and James Engle (hereinafter Engle), a design analysis engineer at Ford U.S.A. in Michigan, the PCM was shipped to Engle along with a memo advising that it came from the O.P.P. Ottawa Valley Detachment and requesting that he arrange for the download of the PCM, forward the data to the requesting officer (Kelly), and return the module to Kelly's detachment.

[63] On June 11, 2011, Kelly sent his draft Technical Collision Investigation Report to Kern for peer review. By that time, he had received the decoded data for the ACM (from Hewitt) and for the RCM (from Binder) and included them in his draft.

[64] On June 20, 2011, Jude wrote to Kelly advising that due to unforeseen technical issues all PCM download requests involving 2010 Ford Expeditions had been delayed, that engineering staff were working diligently to resolve the issue as expeditiously as possible, and that he would advise as soon as he received an update.

[65] On June 23, 2011, Kelly forwarded Jude's email (regarding the delay in the requested PCM download) to Mr. Ramsey, copying Kern. He wrote:

Unfortunately, the PCM has not been downloaded yet. I do have the download info from the "Restraint Control Module", however I have been advised that my Technical Collision Report cannot be disclosed until we cross-reference the PCM, thereby avoiding issues later in court.

Rob,

Do we have a timeline for the report I've submitted thus far for corrections etc?

[66] Engle had quickly determined that he (Ford U.S.A.) did not have the capability of retrieving the data. Until then, Engle had routinely received (previous model) PCMs – some 50 or 60 times - and downloaded them using Ford hardware and software. However, the PCM in question was a brand new model and his crash data retrieval tool was unsuited and unadaptable for the purpose. It was ultimately decided that the PCM would have to be delivered to Bosch, its manufacturer and supplier, for downloading.

[67] Kelly received the draft he had submitted to Kern for peer review on June 23rd. In spite of his previous repeated advice to Mr. Ramsey that it was incomplete without due consideration of the PCM data, Kelly submitted his Final (Technical Collision Investigation) Report to the Crown at the end of June without in any way qualifying it by means of an appropriate reference to the still outstanding PCM data.

[68] The Ford PCM was delivered to Bosch on March 13, 2012. However, since Bosch had neglected to develop the necessary tool to download the data from this particular model PCM in advance of supplying it to Ford for installation in its vehicles, there was a considerable delay of some fifteen months between when Engle received the PCM from Kelly and when Engle received the download from Bosch. Engle then decoded it and provided the interpreted data to Ford Canada, which in turn provided it to Kelly.

[69] On September 28, 2012, Robert Stodola (hereinafter Stodola) forwarded to Kelly the results of the PCM data download along with documents to assist with the interpretation. Stodola advised that "during the download process there was some data lost as you will notice in the attached charts." Kelly immediately forwarded Stodola's email with attachments (the data and related documents) to Hewitt.

[70] On September 30th, Kelly wrote to Mr. Ramsey and Besner advising that the PCM download documents would be mailed out the following day and asking that they be forwarded to the defence a.s.a.p. He added, "P/C Jeff Hewitt is studying it, as it is somewhat complicated. No surprises though."

Other Relevant Kelly Correspondence

[71] I will now set out chronologically – and unedited – the contents of those pieces of Kelly's email correspondence not already referred to which in my view are relevant to the issues and my determination. I have added emphasis (with italics) where appropriate. Any heavy black emphasis appears as such in the original.

[72] Exhibit "S": On April 3, 2011, at 11:54 a.m., Kelly wrote to the O.P.P. DL Ottawa Valley, copying McIntyre and Besner, Subject: Arnprior Fatal – Impaired cause Death:

All:

As most of you know this fatal involves a local Dentist here from Pembroke, which intern will become a "high profile" case. Information and further witnesses are coming forward throughout our area on a day to day bases.

If you here of anyone that witnessed the "collision" or any time prior to, please pass these names to myself and the investigating officer, p/c RYAN BESNER (Renfrew) for further followup.

Tks Shawn

[73] Exhibit "U": On April 3, 2011, at 12:12 p.m., Kelly wrote to Besner, copying McIntyre, Subject: ARNPRIOR FATAL

Ryan:

The manager of Wendy's here is Pembroke reportedly was at the White Lake Intersection when NATSIS went by extremely fast. I will have someone go over and take a detailed statement from her.

I attended the PM on Sat, cause of death was multiple trauma. Supple Rpt. Added. I also added Adam McNish as a TCI witness.

As this will definitely be going to trial, and since I was there when the vehicle was towed (seized) I will be getting a warrant on accused vehicle for a mechanical inspection (by Stu UNHOLA, Ottawa) and seizing the Airbag module. Once seized, I will be either transporting or sending it directly to Ford (as our equip. does not support same). We hope to do this either Wed. (06th) / Thu. (07th). As she was driving a "fully loaded" Expedition, we should be able to get a lot of pre-data and veh. Evidence.

I read over the brief, and you have done a excellent job ensuring that she spoke to a lawyer. Do to the serious nature, and "high profile" of this investigation, I think that we should meet in the next couple of weeks to discuss what else needs to be done, etc.

[74] Exhibit "V": On April 7, 2011, at 12:48 p.m., Kelly wrote to Stephen Neufeld, copying Besner, Subject: R. vs. NATSIS:

Hi Stef,

I understand you have been assigned as the Major Case manager for NATSIS. Can you keep me in the loop on all meetings and discussions you feel I should know about, as I am the lead TCI.

I'd like to suggest that all of us meet (you, me, Besner, a reconstructionist (i.e. Kern or Poirier) Insp. Leedham, or Lungstrass and others who have a vested interest) sometime in the couple of weeks to review and ensure that everything has been "covered off".

As you are aware this will be a very high profile case and will be going to trial. That being said, I believe due to the evening history of the accused prior to the collision, the warrants executed, and the major criminal investigation underway, that at a very minimum a Det. Const. or possibly a D/Sgt. Could be present on the review of this case.

I have been involved in a number of Criminal Fatal trials in the past where "crime" did not get involved, and the case had some serious criminal "hic-ups".

for your consideration

tks Shawn

[75] Exhibit "W": On April 17, 2011, at 12:11 p.m., Kelly wrote to Besner Subject: R. v. NATSIS:

Hey Ryan,

Hope you enjoyed the rest of the week off. The Power Control Module will be sent to Ford, Oakville tomorrow (Mon). There is a Restraint Control Mod. Which has to be sent into the U.S.A. This could take some time to come back. Not sure if you heard, but the Dodge was doing around 80 km/h 2 seconds before the crash.

I have witness statements from the inc. night, however I will need all other statements taken since then. You can either fax or mail them to me. Our fax: 613-735-7427

I am now off until next Wed. 27th (my turn now, ha) If something or questions come up that are important, call me at home. I'm around this week, away next weekend (Easter). C-ph is usually off – my home number redacted (and I too do not put in for 6 hrs.

I am going to strongly suggest that you have your Sgt. Request someone trained in major case management (i.e. Crime) to meet with at least you and I at some point over the next few weeks to review the case. This is to ensure that all "I's and "T's are crossed and we havn't missed anything. Let's get the hic-ups out now, prior to trial.

cheers

[76] Exhibit "Y": On June 29, 2011 at 3:54 p.m., Kelly wrote to Besner Subject: NATSIS CASE:

Hey Ryan,

Couple of items I've thought of recently

Do we know if Bryan Casey "stamped out" at AECL in Chalk River

Maybe should follow-up to where he was drinking and with who?? Would have to have been drinking before 5 p.m. Did he sign out early at AECL??

I have heard that his wife was surprised of alcohol content.

Anyways some items that may come up –cheers

[77] Exhibit "AA": On September 5, 2012 at 3:57 p.m., Kelly wrote to Kern Subject: FW: NATSIS (forwarding an email from Besner who was asking if he had heard back from Ford yet and whether the interpretation of the course for the Dodge had been done)

Rob,

It has been a while, however I believe the below refers to the RPM's of each individual tire that we talked about way back when.

Tipping your memory, the guy in the dodge (deceased) was also impaired – i.e. NATSIS may claim that he was in her w.b. lane, and she swerved into e.b. lane and then he comes back to e.b. lane. Dodge download RPM's on tires does not show movement into the westbound lane.

I am guessing that you or Jeff – (download guy) would be required to interpret this?? Or can I do this via your "training" by coming to see ya??

Shawn

PS – The Ford thing refers to the PCM. They have changed manager's so I am dealing with a "new" guy. He has finally found it in Michigan, however they are having problems downloading same.

Question – In your experience, do we require the actual devise for trial? I'm having this question forwarded to the Crown also.

[78] Exhibit "II": On September 11, 2012 at 10:39 a.m., Kelly wrote Besner Subject: NATSIS:

Hey Ryan,

I do not have crown John Ramsey's email. Has there been a meeting set up with him prior to trial. If so, I would like to attend. I think we really need to review this case within the next month, to ensure everything is in place.

Also, Ford advises that they are putting presure on their supply company in Michigan to get the PCM done. He "hinted" that because it is an outside company, they are having problems getting the work done.

Tks

Shawn

Constable Hewitt

[79] Hewitt joined the O.P.P. in 2001. He has been actively involved in the O.P.P. collision investigation program since 2005, when he qualified as a Level III TTCI. He received his full accreditation as a Level IV Traffic Accident Reconstructionist from ACTAR in September 2011.

[80] On Friday, April 1, 2011, Hewitt received a text from Kelly at 4:51 a.m. asking him to attend at Dwaine's Towing to complete imaging of the Ford's RCM and PCM and the airbag control module (hereinafter ACM) from Dodge. Hewitt determined that he did not have the necessary crash data retrieval software to image (download) the Ford modules. He did have the crash data retrieval software for imaging the Dodge's ACM. Accordingly, Hewitt attended at Dwaine's that afternoon, removed the ACM from the Dodge, did the download at the Renfrew (Stewart Street) detachment, and emailed the results to Kelly for inclusion in his report.

[81] On September 5, 2012, Hewitt was copied on Kern's response to Kelly's email of the same date (Exhibit "AA" referred to above). In the result, Hewitt was assigned by Kern to review, interpret, and analyze all of the module data as soon as the Ford Expedition PCM data was downloaded and received back from Ford.

[82] On September 28th, Hewitt received the PCM data – including data recording headings and interpretation info - attached to an email from Kelly.

[83] On September 30th, Kelly dropped off a copy of his Technical Collision Investigation Report (Exhibit "MM") - with all of its appendices i.e. field notes, reports, scale diagram, vehicle examination reports (inclusive of the ACM data from the Dodge and the RCM data from the Ford), witness statements, and photographs - to Hewitt.

[84] That same day Hewitt commenced the preparation of the Collision Reconstruction Supplementary Report (i.e. supplementary to Kelly's report). He testified that he read Kelly's Final Report, began his analysis of the data from all three modules, and began drafting the report on his computer.

[85] On October 4th, Hewitt met with Kern to inter alia discuss the preparation of his report. Pursuant to their discussion, Kern placed a telephone call to Stodola at Ford Oakville, following which Kern sent an email to Stodola dated October 4, 2012 at 11:57 a.m. Subject: RCM Pre-crash table question, which is set out in full (and unedited) below:

Further to our conversation

Question one – RCM report vs. PCM report

Just wondering on the 1st page of the RCM report in the pre-crash data column,

"Requested Accelleration (%)"

The data table shows 0 throughout is this Requested Acceleration at the pedal or at the throttle body? In comparing this with the PCM data chart (ETC_PCT_FA) shows notable acceleration data in the chart and table.

Question two: PCM chart vs PCM data table

Again with the acceleration trace (ETC_PCT_FA) on the chart the line goes almost to the .5 (50%) throttle near the last 5 seconds (95 sec area) however it does not seem to correspond in the data table during that time frame.

Appreciate your help on this.

[86] On October 9th, Hewitt received an email from Kern forwarding the response Kern had received from Stodola minutes earlier. The contents of that email – Exhibit "AAAA" -are set out in full (and unedited) below:

Robert:

I have consulted with our team in Dearborn and have the following answers to your questions. (Emphasis added)

1. The data on the RCM report for Requested Acceleration is inputted from the Accelerator pedal and corresponds to the ECT_PCT_AM data point on the PCM report. The throttle position data is available on the PCM report and is reported as Throttle Percent. The discrepancy between the two reports is due to a lost communication. The Accelerator Pedal data is collected by the PCM and then broadcast on the communication network to the RCM. In this case there was a breakdown in communication that resulted in no data received by the RCM.

2. The scales on the chart were miscommunicated. The acceleration trace (ETC_PTC_AM) uses the axis on the left-hand side not the right-hand side.

I hope this answers your questions. If you need further clarification please let me know. I can also set up a conference call with our experts if necessary.

Thanks.

[87] On October 26th, Hewitt sent his completed draft Collision Reconstruction Supplementary Report to Kern for peer review. On the 28th, he had it back from Kern with whatever comments and suggestions Kern had made. On the 29th, he met with Mr. Ramsey and provided him with two copies of his Final Report (Exhibit "YYY").

[88] At page 17 of his Final Report, Hewitt is addressing the RCM and PCM data he states was received from Ford. (In fact, as noted above the RCM data was received from Autoliv.) Hewitt describes the information received from Ford (in the October 9th email) as follows:

It was confirmed by Ford that the data on the RCM report for Requested Acceleration is inputted from the Accelerator pedal and corresponds to the ETC_PTC_FA data point on the PCM report. The throttle position data is available on the PCM report and is reported as Throttle pedal rotation Percent. The discrepancy between the two reports is due to a lost communication. The Accelerator Pedal data is collected by the PCM and then broadcast on the communication network to the RCM. In this case there was a breakdown in communication that resulted in no data received by the PCM for requested acceleration. Ford further explained the 'lost data' on the PCM chart was due to a software issue during imaging and not a recording failure. (Emphasis added)

[89] On November 8th while preparing to give evidence in this case, Hewitt realized that the RCM data from the Ford was missing from the final Collision Reconstruction Supplementary Reports he had provided to the Crown. (As previously noted, the RCM data was contained in Appendix "C" of Kelly's Technical Collision Investigation Report.)

[90] On March 7, 2013 (in part as a result of further training he had received in November 2012 at a course entitled Advanced Reconstruction with Crash Data Retrieval), Hewitt received a request from the Crown as a result of which he prepared a follow-up report to address: (1) ACM Validation; and (2) Calculating the Speed of the Dodge from the RCM data of the Ford. The report – Exhibit "XXX" - was prepared and provided to Mr. Ramsey the following day (March 8, 2013).

[91] On September 25, 2013 – as a result of a request from the Crown that he attempt to locate a vehicle similar to the Dodge in undamaged condition for comparison purposes – Hewitt photographed the exterior, tires, and undercarriage from various angles of (what he termed) an "Exemplar Vehicle" Dodge Dakota and provided same to the Crown (Exhibit "ZZZZ").

[92] On October 23, 2013 – as a result of an inquiry from Mr. Ramsey by way of email dated October 17, 2013 regarding Hewitt's delta velocity calculations – Hewitt wrote to him providing information he had sourced and some additional calculations he had done.

[93] There were a number of issues raised in Hewitt's evidence that I will address in my analysis.

[94] On September 28, 2012 – having been assigned by Kern to prepare a supplementary collision reconstruction report in this case, Hewitt reviewed Kelly's Final Report for the first time. Hewitt maintained that he had noticed Kelly's error placing the Ford in the westbound lane one second prior to the collision immediately upon reading it. On his evidence, Hewitt never brought the error to the attention of Kelly, or Kern, or the Crown, or anyone, before the trial commenced or at any time up to the time of his testimony. He would offer no explanation for not having done so.

[95] On Sunday, March 17, 2013 at 6:58 p.m., Hewitt placed a telephone call to Kelly, whose cross-examination on the issue of alleged bias had just been completed the previous Friday (March 15, 2013). Kelly was about to be re-examined on matters pertaining to the bias issue the following day Monday (March 18, 2013). He had yet to be examined on matters relevant to the issues of whether he is qualified to offer an opinion and possesses special knowledge and experience in relation to the matters in issue.

[96] According to his notes (Exhibit "HHHH"), Hewitt asked Kelly if he could tell him "what he had referred to the black mark that ran through the scene as in his report", and was advised by Kelly that they were (referred to as) "skip skid tire marks believed to be left by a TT" (i.e. transport truck and trailer).

Constable Kern

[97] Kern has been a police officer since joining the O.P.P in 1987. He holds the rank of Constable and works in the O.P.P. Highway Safety Division – Ottawa Traffic Management Unit. Kern has been involved with the Technical Collision and Reconstructionist program since 1989, when he assumed the duties of a Level III TTCI. In 2004, Kern assumed the duties of a Level IV Traffic Accident (Collision) Reconstructionist. He received his ACTAR accreditation in 2005 and has maintained it through training and education in the collision reconstruction field.

[98] In 2009, Kern assumed the role of Lead Collision Reconstructionist for O.P.P. East Region. He is responsible for liaising with the provincial coordinator of the Technical Collision Investigation and Reconstruction program and with his regional command, and oversees the program – including administration, operation training, equipment and evaluation - within the region.

[99] As previously noted, Kern performed the peer review of Kelly's Technical Collision Investigation Report in June, 2011, and he also performed the peer review of Hewitt's Collision Reconstruction Supplementary Report in October, 2012.

[100] Kern testified that he first became aware of this case through the OPP 24 hour notification process, and that he was aware that Kelly was the lead investigator, but that he did not have any real dealings with the case until the review process.

[101] With respect to the issue of the release of Kelly's report without the Ford PCM data, Kern testified that "[N]ormally we don't like to proceed with our analysis until we have all of the data". Because there did not appear to be any end in sight as to when they would receive the PCM data, Kelly completed his report with the available (ACM and RCM) data. Asked whose decision it was to release the report without the PCM data, he responded:

Well, it was a decision he asked me and I said yes, I guess we're going to have to because there was a time pressure that was being put on him to submit the report for this collision investigation, and – but we still didn't have the powertrain control module. So I said, "Yes, we're going to have to submit your report without the data from the powertrain control module and then follow up later on ultimately with the supplementary report."

[102] Kern went on to explain that originally he had anticipated that he (Kern) would do the full analysis of all the (ACM, RCM, and PCM) data, but "it just happened to be that when we finally did receive the powertrain control module data, it was at a time when I was – had been injured in an accident and been off on medical leave. So right at the time when we got the data back, that everybody was waiting for this report, this collision report, then it …fell onto the shoulders of …Constable Hewitt…to do that, and mainly because I wasn't going to be available to do it at that time…And he had been trained at that point in time by – in crash data retrieval. He was also already involved in the investigation, he was the one that imaged the data from the Dodge Dakota."

[103] Kern estimated that he has attended at over 400 collisions in the 25 years since he first became a TTCI (adding that "we prepare reports for pretty much every collision we attend"), that he has reviewed hundreds of reports since becoming a collision reconstructionist in 2004, and that he has testified as an expert TTCI and Collision Reconstructionist 18 times.

[104] With regard to the peer review of Kelly's report, Kern said he followed a procedure similar to the provincial audit process, explaining that he starts by reviewing the scene photographs, which he explained gives the reviewer "a general feeling of the collision scene itself, the vehicles that are involved, the scene evidence, so on." From there, he moves on to the appendices of the report – scale diagrams, the field notes prepared by the investigator, and any other documentation that is provided.

[105] Then he reads the narrative portion of the report to see how it compares with what is in the field notes, to satisfy himself that the necessary areas have been covered in terms of documenting the evidence, describing it and analyzing it, to ensure that the analysis provided is supported by the field notes, sketch, photographs and other documents, and to confirm that it falls within the scope or expertise of the collision investigator that's involved.

[106] Kern explained that part of what the peer reviewer is trying to do is to provide a sort of quality assurance in the presentation of these reports, to "look over the formatting of them, to look over the spelling and the grammar, the terminology et cetera, mostly in the presentation, the photos that are listed in there."

[107] Despite the several read-overs Kern did of Kelly's draft report and of his final report, Kern acknowledged that he had missed several errors: the identification by Kelly of "skip-skid" tire marks, which Kern described as a misinterpretation of the scene evidence; the placement by Kelly of the Ford in the westbound lane one second before impact, which Kern described as "certainly an unintended error on his part", and the assertion by Kelly that there were no other (pre or post) tire marks located on the pavement, paved shoulder, or gravel portion in both the eastbound and westbound lanes, which Kern said should have been qualified by adding the words "that can be attributed to either of the involved vehicles."

[108] Kern testified that when the decision was made in late September, 2012 that Hewitt would begin preparation of the supplementary report, they had discussed what was available within the data, and that in terms of Hewitt seeking guidance had some "general discussions" with Hewitt, explaining that because he was originally going to be the one doing the full analysis of the module data they had talked about the data and some of the things to look at.

[109] On October 4, 2012, Hewitt attended Kern's detachment to review an unrelated report with him. At that time, Hewitt raised an apparent anomaly in the comparison of the Ford PCM data and Ford RCM data. They looked through the course manuals and could not find an explanation. Kern called Stodola and explained what they had, and then emailed Stodola at his request.

[110] A few days later, Stodola responded back and Kern forwarded the email to Hewitt. As Kern explained it, he was simply trying to facilitate obtaining an answer for Hewitt.

The Issue of Draft Reports

[111] The evidence on the voir dire establishes that both Kelly and Hewitt prepared drafts of their reports and submitted them to Kern for review. Kern made whatever suggestions or comments he thought were appropriate, and returned the document to the author, to whom it was left to make whatever changes he thought appropriate before submitting it to the Crown for inter alia disclosure purposes.

[112] Once the changes (if any) were made, the original draft was discarded or deleted (depending upon whether it was in hard copy or on the computer) by the author, consistent with the established practice of O.P.P. Collision Re-constructionists in East Region.

[113] Kern did not retain copies of the draft reports submitted to him by Kelly or Hewitt, either in their original form or in the form (containing Kern's suggestions and comments) in which they were returned by him to the author.

[114] In the result, with respect to the Kelly report, neither Kelly nor Kern was in a position to inform the court of the specific changes (if any) that were made to the Kelly report as a result of the review process.

[115] With respect to the Hewitt report, it would appear that a draft report was inadvertently retained by Hewitt even though an (amended) final report was initially submitted to the Crown. This was only discovered during Hewitt's testimony, when it became apparent that he was referring to a version of his report that was not identical to the one that had been provided to the Crown and disclosed to the defence. In addition, a version of his report provided via the Crown to the court reporter for her assistance was compared to the others and found to contain differences from each of the other two.

[116] Accordingly, while neither Hewitt nor Kern was able to inform the court of what changes were made to the Hewitt report as a result of the review process, the court was in a position to glean some insight into development of Hewitt's final report.

POSITIONS OF THE PARTIES

Constable Kelly

[117] The defence submits twenty-nine (29) reasons why the court should exercise its gatekeeping function by refusing to admit Kelly's proposed expert evidence because of (his) demonstrated bias, partiality and lack of independence:

1. He believes that he "works for the Crown".
2. He does not acknowledge his own biases and lack of independence.
3. He does not understand the concepts of "independence" or "tunnel vision".
4. He fundamentally misunderstands the role of the expert witness.
5. He injected himself improperly into the investigation as a whole.
6. He formed an opinion early, and was constrained by tunnel vision and confirmation bias.
7. He congratulated P.C. Besner on his efforts regarding right to counsel.
8. He acknowledged the appearance of bias in his email to P.C. Besner.
9. He was committed to ensuring a successful prosecution of Dr. Natsis.
10. He was determined to rebut any potential defence theories.
11. He stated that he had a "vested interest" in this case.
12. He released the report, despite repeatedly stating earlier that he could not do so without the module data.
13. He did not disclose the missing PCM.
14. He did not state that his report was preliminary or qualified.
15. He ignored potentially exculpatory or contradictory evidence.
    • a. He did not mention anything about vehicles driving through the scene.
    • b. He selectively omitted three witness statements.
    • c. He did not mention Mr. Casey's impairment.
16. He went beyond the scope of his expertise.
17. P.C. Kelly displayed intransigence in his evidence about the tire marks.
18. P.C. Kelly displayed intransigence in his evidence about the skip skids.
19. P.C. Kelly displayed intransigence in his evidence about 150 m/400 m.
20. P.C. Kelly displayed intransigence in his evidence about the WB in WB lane.
21. P.C. Kelly had no interest in having the Dodge vehicle inspected.
22. P.C. Kelly called Dr. Natsis to further the police investigation.
23. P.C. Kelly was not concerned about vehicles driving through the scene.
24. P.C. Kelly sought to obtain a fee waiver for the OPP.
25. P.C. Kelly was "looking for evidence to support a criminal charge".
26. P.C. Kelly was affected by the opinions of other officers.
27. P.C. Kelly did not refer to the roadway as "under construction".
28. P.C. Kelly did not think to analyze the Dodge module earlier.
29. His purported peer review is woefully inadequate.
    • a. The peer review was conducted by P.C. Kern, Kelly's police supervisor, not an independent party.
    • b. P.C. Kern is himself biased.
    • c. The peer review was perfunctory, not substantive.
    • d. The peer review cannot be tracked or replicated.
    • e. P.C. Kern himself was not independent from the investigation, he was a co-investigator.

[118] The defence submits that there are a further twenty-one (21) reasons why the court should exercise its gatekeeping function in relation to the proposed expert evidence of Kelly by refusing to admit it because of his demonstrated lack of credibility, reliability and general competence:

1. His evidence, as a whole, was not candid or forthright.
2. His report, despite having been proofread and peer reviewed, contained typographic errors.
3. He does not keep proper notes of his meetings and communications.
4. He improperly altered his notes.
5. He improperly altered his summary of events.
6. He destroyed the only copy of his draft report.
7. He was deceptive about the status of the "lost" PCM.
8. He was deceptive about his "vested interest".
9. He was deceptive about not having any real investigative role beyond the technical traffic collision investigation.
10. He was deceptive about which emails were brought to his attention.
11. He was deceptive about not giving advice for a successful prosecution.
12. He claimed that he did not have "a lot" of communication with P.C. Besner.
13. He did not disclose the full contents of the binder with the red pen marks, excising the three statements that were helpful to the defence.
14. He was deceptive about the fact that, when he had set down to write his report, he had already decided that Dr. Natsis was guilty.
15. He was deceptive about the meaning of "crime" in his email.
16. He was deceptive about his concern regarding search warrants and cell phones.
17. He is not aware of the standard of proof in a criminal trial.
18. P.C. Kelly was not honest about his conversation with P.C. Unhola.
19. P.C. Kelly told Binder that he seized the RCM.
20. P.C. Kelly said he never described Casey as impaired.
21. He was deceptive about whether or not he had read the brief.

Constable Hewitt

[119] The defence submits that the evidence of bias in both the substantive testimony and the manner of testimony of Hewitt can be categorized into the following ten (10) distinct themes:

1. Inadequate peer review
2. Non-compliance with Standard Operating Procedure
3. Independent expert vs. investigator
4. Sources of information: awareness & identification
5. Documented opinions vs. viva voce opinion
6. Limitations & cautions
7. "Deletion" of draft reports
8. Excision of evidence favourable to the accused
9. Conduct Unbecoming an Impartial Witness
10. Concealing errors: conscious or unconscious bias

Constable Kern

[120] The defence submits that Kern is tainted with bias, tunnel vision, partiality and confirmation bias, that it is Kern - who provided the independent oversight of a "peer review" to both Kelly and Kern - whose failures are most apparent, and that his bias is evidenced in the following nine (9) specific areas:

1. P.C. Kern did not perform an independent review as required by the SOP and Sgt. Wright's guidelines
2. P.C. Kern's peer review was not thorough enough to catch obvious errors
3. P.C. Kern acted as both peer reviewer and co-investigator
4. P.C. Kern was not honest and straightforward about discovering the errors
5. P.C. Kern failed to implement the risk management process
6. P.C. Kern detected errors and failed to inform the Court or the Crown
7. P.C. Kern failed to make proper notes
8. P.C. Kern destroyed the draft reports
9. P.C. Kern did not ensure that the report was marked provisional

[121] With respect to the issue of draft reports, as I understand their submission it is the position of the defence that the O.P.P. - in effect the Crown - has an obligation to maintain and disclose all draft reports, inclusive of all additions, deletions, changes, edits, corrections and the documentation surrounding them. Their reasoning as submitted is set out below:

• Police officers and most often in Ontario, O.P.P. officers, exercise total domain over accident scenes at the critical time frame;
• Officers wear two hats, one investigator in the traditional sense, the other being the expert hat, when they are Technical Collision Investigators and Reconstructionist;
• Interpretation of on scene evidence is crucial to accurate expert opinion formulation;
• The accurate interpretation of the physical evidence post-crash, with respect to roadway markings is critical to all that follows;
• Independent, unbiased, impartial observations and conclusions are crucial;
• Total transparency by the expert Technical Collision Investigator and Reconstructionist is critical to the entire process of police and Court scrutiny of any kind;
• Comments, corrections, the input of external opinion and recommendations assimilated intentionally or unintentionally into the report provide a critical data-set permitting the Court to assess whose opinion is being offered and what portion of the respective reports are hearsay;
• The preservation of drafts which have been corrected and amended informs the Court concerning not only the competency of the maker of the report and the reviewer, but also provides key insights as to the issues of overall bias, partiality, tunnel vision and confirmation bias; have these infected the thinking, methodology and evolution of the report in its final versions?
• Drafts permit the Court to assess whether errors addressed are trivial or important;
• Where inadequate police notes are disclosed, as in this case, the peer review process may only be properly assessed with the use of drafts;
• Only with adequate disclosure, generating probing cross-examination, can there be a full exposure of the disposition of the report maker and the peer reviewer to hide or manipulate the use of exculpatory evidence, such as witness statements;
• Only with full disclosure of all of the drafts and correspondence addressing changes and suggesting additions may the trier of fact be fully informed as to the compliance with the O.P.P. Orders and Standard Operating Procedures, and conduct the "highest scrutiny" within the judicial process as intended.
• Given the remarkable number of "errors" in the P.C. Kelly final report, the Court is left to speculate, in the absence of the drafts containing corrections, how dreadful his original report was. This reflects not only upon his competency but that of his peer reviewer, P.C. Kern, and the purported Reconstructionist who relied on the findings in his report for the supplementary report, P.C. Hewitt.

APPLICABLE LAW

General Principles of Admissibility

[122] Opinion evidence should be presumptively excluded. The reason for this is simple. Cases should be decided on the facts as perceived by the judge (or the jury) and not by what a third party may think of the facts. The exception is when special expertise is needed to decipher the facts. Then, and only then, do we turn to the experts.

Abbott and Haliburton Company v. WBLI Chartered Accountants, 2013 NSCA 66 (per MacDonald C.J.N.S., dissenting)

[123] An expert's function is to provide a ready-made inference that the trier(s) of fact cannot otherwise formulate due to the technical nature of the evidence.

R. v. Abbey, [1982] 2 S.C.R. 24 at p. 42.

[124] In R. v. Mohan, the Supreme Court set out the applicable test for the admission of expert evidence:

Expert evidence can be admitted only if the party calling it satisfies the following prerequisites on the balance of probabilities:

a. The evidence must be logically relevant to a material issue.

b. The evidence must be "necessary". It must deal with a subject-matter that is outside the experience and knowledge of ordinary people.

c. The expert witness must be qualified to offer an opinion. The expert must possess special knowledge and experience in relation to the matters in issue.

d. The proposed opinion must not contravene any other exclusionary rule.

R. v. Mohan, [1994] 2 S.C.R. 9

The Proper Scope of Expert Evidence

[125] In Sekhon, the Supreme Court of Canada underscores the importance of ensuring that expert evidence remains within its proper scope:

Given the concerns about the impact expert evidence can have on a trial — including the possibility that experts may usurp the role of the trier of fact — trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges — including those in judge-alone trials — have an ongoing duty to ensure that expert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert's testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert's testimony, the testimony remains within the proper boundaries of expert evidence.

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 and citations omitted by S.C.C.]

R. v. Sekhon, 2014 SCC 15, at para. 46

Expert Evidence on the Ultimate Issue

[126] The Supreme Court of Canada has repeatedly affirmed that the common law rule precluding expert evidence on the ultimate issue no longer applies in Canada: R. v. Burns, [1994] 1 S.C.R. 656, at para. 25:

While care must be taken to ensure that the judge or jury, and not the expert, makes the final decisions on all issues in the case, it has long been accepted that expert evidence on matters of fact should not be excluded simply because it suggests answers to issues which are at the core of the dispute before the court: Graat v. The Queen, [1982] 2 S.C.R. 819. See also Khan v. College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641 (C.A.), at p. 666 (per Doherty J.A).

See also R. v. Bryan (2003), 175 C.C.C. (3d) 285, at para. 16: "there is now no general rule precluding expert evidence on the ultimate issue".

R. v. Solleveld, 2014 ONCA 418

Impartiality and Objectivity

[127] Expert opinion tendered by a party is a unique type of evidence. Although generally retained by one side to the litigation or the other, experts are expected to be neutral. Their testimony is meant to assist the court and the trier of fact, not to bolster the theory of the case presented by one of the two sides. Their status as experts derives, in significant measure, from the assumption that they will offer the court objective opinions on which the court is entitled to rely.

Horodynsky Farms Inc. v. Zeneca Corp., [2006] O.J. No. 3012 (Ont. C.A.).

[128] The Mohan criteria do not include an express requirement of independence and impartiality. However, Canadian courts have inferred such a requirement, holding that the trial judge has a residual discretion to act as a "gatekeeper" in order to prevent the admission of evidence which may potentially harm the trial process.

R. v. Abbey, 2009 ONCA 624 at para. 73.

[129] In Abbey, Doherty J.A. set out a two-part approach for applying the Mohan factors and the court's gatekeeping function:

Using these criteria, I suggest a two-step process for determining admissibility. First, the party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. For example, that party must show that the proposed witness is qualified to give the relevant opinion. Second, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This "gatekeeper" component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence.

R. v. Abbey supra., at para. 76.

[130] Doherty, J.A. placed the need for impartiality and independence under Mohan's relevance requirement, dividing the concept of relevance into two categories, legal and logical:

83. The relevance criterion for admissibility identified in Mohan refers to legal reference. To be relevant, the evidence must not only be logically relevant but must be sufficiently probative to justify admission: see Mohan at pp. 20-21; K. (A.) at paras. 77-89; Paciocco & Stuesser at pp. 198-99.

84. When I speak of relevance as one of the preconditions to admissibility, I refer to logical relevance. I think the evaluation of the probative value of the evidence mandated by the broader concept of legal relevance is best reserved for the "gatekeeper" phase of the admissibility analysis. Evidence that is relevant in the sense that it is logically relevant to a fact in issue survives to the "gatekeeper phase" where the probative value can be assessed as part of a holistic consideration of the costs and benefits associated with admitting the evidence. Evidence that does not meet the logical relevance criterion is excluded at the first stage of the inquiry: see e.g. R. v. Dimitrov (citations omitted).

85. My separation of logical relevance from the cost-benefit analysis associated with legal relevance does not alter the criteria for admissibility set down in Mohan or the underlying principles governing the admissibility inquiry. I separate logical from legal relevance simply to provide an approach which focuses first on the essential prerequisites to admissibility and second, on all the factors relevant to the exercise of the trial judge's discretion in determining whether evidence that meets those preconditions should be received.

[131] Doherty J.A. then proposed that, pursuant to the case specific cost-benefit analysis that occurs during the "gatekeeper" inquiry, the court must address the extent to which an expert is shown to be impartial and objective:

87. The "benefit" side of the cost-benefit evaluation requires a consideration of the probative potential of the evidence and the significance of the issue to which the evidence is directed. When one looks to potential probative value, one must consider the reliability of the evidence. Reliability concerns reach not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert's expertise and the extent to which the expert is shown to be impartial and objective. (Emphasis added)

[132] Prior to Abbey, Canadian courts had cited with approval the principles outlined in the English case, The Ikarian Reefer, [1993] 2 Lloyds's Rep. 68. In that case, the court held that expert evidence presented to the court should be, and should be seen to be, the independent product of the experts uninfluenced as to the form or content by the exigencies of litigation.

Deloitte & Touche LLP v. Institute of Chartered Accountants of Alberta, 2008 ABCA 162 at para. 96; R. v. Norton, [2007] O.J. No. 811 at para. 62.

[133] The fact that one party has retained an expert does not, by itself, diminish the independence or opinion of the expert:

Expert witnesses are of course paid a fee by the party calling them, which in itself may be considered to affect their independence. The court will examine the demeanor of an expert in the way the evidence is given, in particular whether the expert takes on the role of an advocate for one side, or remains objective, in weighing the evidence and attributing value to the opinion. If the expert does adopt the attitude of a neutral, then the fact that he is being paid or that the defendant is his client will cause little or no concern, but that will not be the case if he appears to lose his neutrality.

Interamerican Transport Systems Inc. v. Canadian Pacific Express & Transport Ltd., [1995] O.J. No. 3644 (Ont. Ct. Gen. Div., Feldman, J.) at para. 61.

Admissibility or Weight

[134] The consequences of a finding that an expert witness lacks independence or objectivity or is biased or partial has been the subject of debate in the jurisprudence. Some courts have held that bias is a factor that goes to the assessment of the weight to be given to the evidence rather than the admissibility of the evidence itself. (Emphasis added) As Goepel, J. put it in Beazley v. Suzuki Motor Company, 2010 BCSC 480,

20. Canadian courts appear to have taken different positions on the issue of whether an expert witness' bias or perceived bias will disqualify him or her from giving evidence at trial. Some courts have held that for expert evidence to be admissible, the expert must be seen to be absolutely neutral and objective. Other courts have concluded that a lack of objectivity, neutrality and independence are matters that only impact the weight to be afforded that expert. Romilly J. in United City Properties Limited v. Tong, 2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.

21. The cases are not easily reconciled. Where there is a personal relationship between the proposed expert and the party, where the expert has been personally involved in the subject matter of the litigation or where the expert has a personal interest in the outcome, the expert has not been allowed to testify. Examples of such cases are: Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct. J.); Bank of Montreal v. Citak, [2001] O.J. No. 1986 (Sup. Ct. J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. In cases where the relationship between the expert and the party is more institutional in nature, the evidence has been admitted subject to weight. Examples of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd. (2006), 80 O.R. (3d) 594 (Sup. Ct. J.)

[135] In Klassen, the defence had sought the exclusion of expert evidence on marihuana trafficking being given by an RCMP officer who worked in the same office as the officers who conducted the investigation. Scurfield, J. ruled the expert's evidence admissible and accepted that evidence, holding that the expert appeared credible, his expertise was unchallenged, and his evidence was corroborated by both common sense and physical evidence.

[136] In holding that bias is a factor that goes to the assessment of the weight to be given to the evidence rather than the admissibility of the evidence itself, Scurfield J. of the Manitoba Court of Queen's Bench reasoned:

When experts are not independent, the weight given to their evidence should vary with the degree to which their opinions are supported or contradicted by other evidence and common sense. Where little or no support exists, the evidence may be rejected. Where it is supported and not contradicted, the trier of fact may choose to rely upon it.

R. v. Klassen, 2003 MBQB 253 at para. 32.

[137] However, Scurfield, J. sounded a warning to those seeking to tender police officers as potential expert witnesses:

Clearly, the degree to which the expert is separated from the investigation is significant. Ideally, the expert should not be an employee of the investigating police service. At minimum, if he works for the same department, he should work independently from the investigating officers. The degree to which the expert is insulated from the investigation should be considered by the court before attaching weight to the expert's evidence. Reliance on the opinion of a witness who carries with him the appearance of bias should be avoided.

R. v. Klassen at para. 31.

[138] In R. v. Inco, supra, Hennessy, J. was sitting as an appellate judge on a case in which the trial judge had refused to admit the evidence of an expert witness proffered by the Crown. The trial judge had found that there was "nothing in the evidence to suggest actual bias, but his position does not lend to the appearance of professional objectivity…Basically, the bottom line here is that there is not the separation between Mr. Mak and the Crown/Prosecution that ensures the vital appearance of impartiality. He will not, therefore, be permitted to testify as an expert."

[139] In allowing the appeal by the Crown, Hennessy, J. writes:

[42] The independence required of experts may be the subject of special inquiry, particularly where an "in-house" expert is proffered by one of the parties. The inquiry requires that the trial judge, on a voir dire, look beyond the witness's employment relationship or retainer and consider the basis on which the opinion is proffered. Unless the terms of the retainer make the witness an obvious "co-venturer" with the party, as in the case where the witness worked on a contingency fee arrangement which was dependent on the outcome of the case, [See Note 13 below] the trial judge must examine the actual opinion evidence to be offered in a voir dire. The proposed expert's independence can be tested in the usual way, by cross-examination on his or her assumptions, research and completeness. The trial judge can then assess whether the expert has assumed the role of advocate.

[43] The trial judge rejected him on the basis that he could be perceived as lacking independence:

Experience and education in this matter are not an issue. Mr. Mak has ample of both. The question here is the matter of impartiality or independence.

Mr. Mak is not only employed by the Ministry of the Environment, but is attached to and intimately concerned with the day-to-day operations involving investigations and enforcement by instructions to and education of other members of the Branch and including experts. I have no doubt that Mr. Mak is an honourable person. I have no doubt that he would attempt to be honest and fair in his testimony, and in giving his opinions, but he is not being proffered in the same light as those government expert/employees such as, first instance, work in the Centre of Forensic Sciences, the Ministry of the Solicitor General, with which I am probably aware of more than other experts that are preferred by the government in prosecutions. These experts are used not only extensively in prosecutions, but also to a very large degree by the defence bar of Ontario and I dare say outside of the province and even the country. They do not have that connection as does Mr. Mak. They do not gather, direct or instruct as does he. His position, in my view, could only be perceived by the public as capable of lacking independence.

There is nothing in the evidence to suggest actual bias, but his position does not lend to the appearance of professional objectivity. In my view, who pays him, who assesses him, is no more relevant than who pays and who assesses experts from the Centre of Forensic Sciences. That is not in consideration in this case. [page 607]

Basically, the bottom line here is that there is not the separation between Mr. Mak and the Crown/Prosecution that ensures the vital appearance of impartiality. He will not, therefore, be permitted to testify as an expert.

(Pages 10-11, Mahaffy J.)

[44] The mere fact that the witness in this case was employed in the Investigations & Enforcement Branch as a "technical enforcement specialist" is not a sufficient basis on which to find him incapable of providing an independent opinion. The trial judge did not assess whether the witness' evidence was based on valid assumptions, whether he fully disclosed all material facts or whether his opinion was properly researched and fell within his area of expertise. The witness, himself, testified that his relationship with investigators in his branch was "the equivalent of a police officer going to the Centre of Forensic Studies".

[45] Before rejecting a witness based on a perceived lack of independence, the trial judge should conduct a voir dire to test this perception against the actual opinion evidence to be proffered. On a voir dire, the trial judge can assess this perception in light of the opinions tested under cross-examination, in particular the assumptions, the disclosure of material facts, the completeness and the level of expertise.

[46] The trial judge indicated that he was guided by the remarks of E. MacDonald J. in Fellowes, McNeil v. Kansa General International Insurance Co., (1998), 40 O.R. (3d) 456, [1998] O.J. No. 4050 (Gen. Div.). However, there is an important factual distinction between these two cases. In Fellowes, McNeil, the court found that the proposed expert had earlier been an advocate for Kansa against Fellowes, McNeil. E. MacDonald J. set out the prior role played by the proposed expert. She found that he "has been an advocate for Kansa's positions since he became involved in the matter. . . " (p. 459 O.R.).

[47] There was no finding in this case, nor was there any evidence that Mr. Mak had ever been an advocate for the Ministry. Nor was Mr. Mak shown to be a co-venturer, as in Bank of Montreal. He has a technical role as a scientist in his employment and he was proposed as an expert to give technical and scientific opinion evidence. The prohibition against expert witnesses assuming the role of advocate is well founded in case law, but has not been extended to a prohibition against qualifying a witness as an expert merely because that witness is employed by a party to the litigation. The mere fact that the proposed expert is employed by the party can be taken into account when the trial judge assesses the weight and value of the evidence.

[140] It is apparent from the civil cases in this area that a proposed expert's lack of independence may sometimes appear serious enough to warrant its exclusion from the outset on the basis that the proposed evidence lacks independence, and that appellate courts will accord deference to a trial judge's decision to exclude evidence where the trial judge has applied the proper legal principles. For example, in Carmen Alfano Family Trust (Trustee of) v. Piersanti, 2012 ONCA 297, O'Connor, A.C.J.O. confirmed:

110. In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert's evidence rather than as a matter of the admissibility. Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency.

111. That said, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. In reaching such a conclusion, a trial judge may take into account whether admitting the evidence would compromise the trial process by unduly protracting the proceedings: see R. v. Abbey (citations omitted). If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has a discretion to exclude the evidence.

[141] Criminal courts in Ontario have (also) excluded expert evidence in appropriate cases rather than admitting it subject to weight. For example at the sentencing hearing in R. v. Docherty, 2010 ONSC 3628, [2010] O.J. No. 3460 (Ont. S.C.J.), the defence tendered a psychiatric assessment prepared by a qualified psychiatrist who happened to be the father of one of the two defence counsel who had conducted the trial of a manslaughter case. No mention had been made in the report of the relationship between doctor and counsel, nor was there any reference to it by the defence when filing the doctor's C.V. and report in advance of the hearing. The Crown – having discovered that the coincidence of names represented a family relationship - objected to the introduction of that report inter alia on the basis that there was a reasonable apprehension of bias such that public confidence in the administration of justice would be impaired if the court were to admit the report.

[142] Wein, J. begins her reasons for excluding the evidence by stating:

Impartiality is a fundamental precondition to the admission of expert evidence. The absence of bias and the absence of the appearance of bias are necessary to maintain confidence in any decision in which expert evidence plays a role.

R. v. Docherty, supra., at para. 1

[143] The learned trial judge further addresses the importance of independence, and the dangers of bias, or even the appearance of bias in expert witnesses:

The rules permitting the introduction of opinion testimony are clearly predicated on impartiality. The independence and objectivity of a professional opinion requires the absence of bias. Confidence in the decisions based in whole or in part on expert testimony, requires that there be no appearance of bias. It has been held that while a tangential vested interest in the outcome of proceedings by way of payment, or continuing associations with either the Crown or defence, do not necessarily require exclusion of such a witness, the ethical limits under which an expert testifies must be adhered to or the confidence of the public in allowing expert testimony will inevitably be undermined.

R. v. Docherty, supra., at para. 11.

[144] She notes that the Goudge Inquiry into Pediatric Forensic Pathology in Ontario, the Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin, and various Law Reform Commission reports on evidence, all stress the need for impartiality in experts.

R. v. Docherty, supra., at para. 13.

[145] Finally, Justice Wein concludes that "even assuming the doctor could give his opinion untouched by even subconscious bias…the public perception of the introduction of such evidence on sentencing prevents its use. This is particularly so in the case of a manslaughter sentencing, where the legally available range is so wide…The apprehension of bias as well as the possibility of a subconscious bias precludes its admissibility."

R. v. Docherty, supra., at para. 14.

[146] In Abbott and Haliburton, supra, MacDonald C.J.N.S. observes that Canadian legal scholars have applied similar reasoning to this issue.

30. Academic writing is also instructive. Here again the same theme emerges - allegations of bias are most often left as a question of weight for the trier of fact but, where the allegations of bias are serious enough and the lack of objectivity is obvious enough, the evidence should be excluded at the outset. For example, Judge Paciocco, in Jukebox Testimony, supra, offers this:

31. Should the law attempt to exclude biased expert evidence, or admit it and discount it? Certainly, if the bias is profound enough that the expert witness will probably be unable to discharge the obligation to the court or tribunal to be objective and impartial, and if that bias is capable of being identified efficiently before the witness has testified, the evidence should be excluded. Otherwise, bias or partiality should affect the weight the evidence is to receive.

Draft Reports and The Crown's Obligation to Preserve and Disclose All Relevant Evidence

[148] The Crown is legally obligated to disclose all relevant information in its possession, whether inculpatory or exculpatory, regardless of whether the Crown intends to rely on it.

R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.).

[149] The Crown's duty to disclose all relevant information in its possession gives rise to an obligation to preserve relevant evidence.

R. v. La, [1997] 2 S.C.R. 680 at 17 (S.C.C.).

R. v. Egger, [1993] 2 S.C.R. 451 at 472. (S.C.C.).

[150] When the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it.

R. v. La, supra at 20.

R. v. F.C.B., [2000] N.S.J. No. 52 at 10 (N.S.C.A.).

[151] The court, in determining whether the Crown's explanation is satisfactory, must assess the circumstances surrounding the loss of evidence. The main consideration is whether the police or the Crown took reasonable steps to preserve the evidence for disclosure.

R. v. La., supra at 21.

[152] The court must also examine the nature of the lost evidence. As the relevance of the evidence increases, "so does the degree of care for its preservation that is expected of the police."

R. v. La., supra at 21.

[153] In La, supra., the Supreme Court of Canada outlined the procedure for assessing the Crown's failure to preserve evidence.

[154] First, the court must analyze the circumstances surrounding the loss of the evidence in order to determine if the Crown has breached its obligation to preserve evidence.

[155] Second, the court must determine whether this breach amounts to an abuse of process.

[156] For example, where the purpose of the destruction of evidence was to frustrate the defence in obtaining full disclosure, an abuse of process may be found.

R. v. Maslanka, 2011 ONSC 1668 at para. 71.

[157] Finally, the court must decide whether the breach of the duty to disclose or the abuse of process warrants a stay of proceedings.

[158] It has been observed that "[w]hen evidence is lost, assessing prejudice is invariably problematic and, to some degree speculative".

R. v. G.S. (2010), 2010 ONCA 296, 254 C.C.C. (3d) 153 (Ont. C.A.) at para. 46.

[159] Moreover, there exist "intrinsic uncertainties about...missing evidence" in terms of the use to which it might have been put by the defence.

R. v. Svelka, 2010 ABCA 390 at para. 32.

ANALYSIS

[160] Clearly, it is open to a trial judge in an appropriate case to exclude expert evidence that is biased or partial, as opposed to admitting it subject to weight. O'Connor, A.C.J.O. in Carmen, supra, suggests that this discretion be reserved for cases where "the evidence is so tainted by bias or partiality as to render it of minimum or no assistance."

[161] I take that to mean that the discretion to exclude expert evidence should be reserved for those cases wherein the proffering expert is so biased and/or partial and/or lacking in independence that the potential harm to the trial process outweighs the benefits that that may flow from the admission of that expert evidence even where it meets the preconditions to admissibility set out in Mohan, supra. (Emphasis added)

[162] In his article "Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts", Spring 2009 Queen's Law Journal 34 Queen's L.J. 565 referred to earlier, Judge Paciocco proposes a two-step approach that (a) would put the burden on the party opposing admissibility to demonstrate on a balance of probabilities that there is "a realistic concern that the witness is biased", and (b) would admit the evidence even where a realistic potential for bias has been demonstrated "unless it is probable that the expert will be unable to present the expert testimony independently and impartially". Paciocco concludes, "In the result, in most cases bias, interest, and influence would be "treated as they should be: as matters affecting the weight to be given to the expert evidence."

[163] The Paciocco approach addresses the factors relevant to the exercise of the trial judge's discretion in determining whether evidence that otherwise meets the Mohan preconditions should be received, including the extent to which the expert is shown to be impartial and objective (Abbey). The Paciocco approach is consistent with what is proposed by O'Connor A.C.J.O. in Carmen, and is, in my view, the preferred approach.

[164] I am mindful of the point made in McWilliams' Canadian Criminal Evidence that "the limited effectiveness of cross-examination of an expert witness" is one of the rationales for the importance of impartial expert opinion", and of their conclusion that "partial or biased expert evidence amounts to an abuse of the exceptional indulgence or opportunity to provide opinion testimony.

[165] I note, however, that defence counsel in this case conducted a thorough and effective cross-examination of each of Kelly, Hewitt, and Kern.

[166] Nor was there reliance by the three experts tendered on this application on facts, data, or material not otherwise demonstrable by admissible evidence, another of the rationales for exclusion proffered by the learned authors in McWilliams'.

Kelly

[167] I am satisfied that the defence has met its burden and established that there is a realistic concern that Kelly is biased, based upon evidence suggesting and/or tending to support findings of bias, lack of independence and/or partiality in this investigation.

[168] I base this finding in large part on the contents of the emails sent by Kelly - marked as Exhibits "S", "U","V", "W", "Y", "AA" and "II" on the voir dire – which are set out in full above. A fair reading of theses emails supports the conclusion that Kelly – almost from the outset of his involvement in this matter – crossed the line from technical traffic collision investigator to general investigation of the offence. He immediately asserted himself as advisor and counsel to the officer in charge. He sought to be included in – and even to initiate – meetings with Besner and all others with a "vested interest" in the case. (Emphasis added)

[169] I appreciate that Kelly is required to perform investigative functions in the execution of his duties as a TTCI. However, as a police officer who is to be proffered by the Crown as an expert witness, there is the expectation that he at all times be independent, unbiased, and impartial. Kelly's protestations aside, that expectation necessarily implies that there must be some distance maintained from the general investigation of the offence and the investigating officer. Kelly cannot be seen to be, or conduct himself as, just another member of the investigative team.

[170] The exercise of his investigative functions did not require that Kelly become an integral member of the investigative team. Any liaising with Besner ought to have been restricted to necessary exchanges of information such as, for example: witness statements to be reviewed for relevance to his role as the collision investigator; and, (since Kelly was the point person dealing with Autoliv and Ford) keeping Besner (and the Crown) advised of developments. (Emphasis added)

[171] There is also some merit to the defence allegation that Kelly "selectively omitted" from Appendix "D" (the witness statement appendix) of his Final Report the statements of three witnesses – Laura Bateman, Drew Scott, and Derek Egan - that were more favourable to the defence.

[172] Laura Bateman was the waitress from the Crazy Horse who had apparently served Natsis and a male just prior to the driving that preceded the fatal collision. According to her written statement, she remembered them and "didn't think she was drunk". Bateman's statement also addressed the time of service. The statements of Mesic and Richardson, which addressed the time they thought Natsis had departed the Crazy Horse (as well as their opinions about the state of her sobriety and her manner of driving) are referred to in TAB 5 of Kelly's Final Report: "Speed Determination".

[173] It was not made apparent to the court how or why Derek Egan's statement – he was a manager at the Crazy Horse on the evening in question – was more favourable to the defence.

[174] Drew Scott was a witness who provided handwritten and typewritten statements to the O.P.P. He and Natsis were known to one another before the fatal collision. Scott and his friends were returning home from a golf trip and stopped to assist at the collision scene. In his statements, Scott had advised that he had spoken to Natsis at the scene – apparently just after she had exited her vehicle and before her arrest – and quoted her as saying, "The other car crossed into my lane."

[175] That utterance was highly relevant to the area of impact issue, which is one of the central issues – if not the pivotal issue- on causation in this case.

[176] What is curious is that these statements were on the original list Kelly drafted for inclusion in Appendix "D". (Emphasis added)

[177] No satisfactory explanation was provided by Kelly for the exclusion of either the Bateman statement or the Scott statements. With regard to the latter, he explained that he did not include them because the Natsis utterance was "uncorroborated. From his testimony on this point, it is apparent that what Kelly really meant to say was that her utterance was inconsistent with (a) his observations and documentation of the physical evidence, and (b) the module data. In my view, that inconsistency is all the more reason for including the statement containing the utterance, and, if necessary, addressing it square on, if the object is a balanced report.

[178] While the fact that Kelly omitted them from inclusion in "Appendix "D" would not by itself have caused me to conclude that Kelly is biased, it does weigh into the mix.

[179] With regard to the defence submission regarding his failure to make mention in his Final Report of the presence of alcohol in the blood of the deceased at the time of the accident – which information was in his possession prior to the delivery of his Final Report to the Crown in June, 2011 – I note that Kelly does not make direct reference to the accused's blood alcohol level either. He simply concludes that the "cause of the collision is a result of the action, inaction, or condition of the driver of the Ford Expedition. (Emphasis Added).

[180] With regard to the defence submissions that Exhibit "GGG" (Kelly's letter to Binder dated April 30, 2011) is evidence of his bias because of his use of the term "support the investigation", a fair assessment of the full contents of the letter make it abundantly clear that it was written with two purposes in mind: to convey to Binder the importance of his request for the download so that it would be expedited as quickly as possible, and to save the O.P.P – and the people of Ontario - some money. Neither of them offends me. Neither evidences bias.

[181] 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.

[182] 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.

[183] 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".

[184] Specifically, in the email (Exhibit "AA") dated September 5, 2012 (3:57 p.m.) to Kern, Kelly writes:

"I am guessing that you or Jeff – (download guy) would be required to interpret this?? Or can I do this via your "training" by coming to see ya??"

[185] To place this email in context, as noted earlier in these reasons, both the Natsis Ford and the Casey Dodge vehicles were equipped with modules or inboard computers, designed primarily to control the functioning of components such as the automatic braking system, engine and transmission. A secondary feature of these modules is that they are equipped with event data recorders that continuously record data on a buffer whenever the key is in the on position. When the data buffer is full, the oldest data is replaced with the new data. The data recorded in the last however many seconds prior to impact (depending upon the module) - broken down into fractions of a second - is locked in at the time of a significant collision, either when it receives a signal or when it loses power.

[186] Depending upon the module, this so-called crash data includes (but is not limited to) vital information such as: the speeds at which the vehicle was travelling; whether, and if so when, the brakes were applied; whether, and if so when, the brake lights were illuminated; the angle of the accelerator pedal (indicating whether, and if so when, the driver lifted his foot off the pedal); the rpms of each of the four tires (indicating whether the vehicle was travelling straight ahead or in the process of turning at or immediately before the time of impact); whether, and if so when, the airbags were deployed; whether the various seatbelts were buckled or unbuckled at impact; and, whether the seatbelt pre-tensioners fired.

[187] As noted earlier in these reasons, Hewitt had removed the Dodge ACM and downloaded the data on the day following the accident. Unhola had removed the Ford RCM and PCM on April 13, 2011.

[188] The OPP did not have the capacity to download the Ford RCM or PCM data. The RCM had been sent to its Michigan manufacturer, Autoliv, and imaged (downloaded), decoded, and reported upon in time for Kelly to include the crash data in his Final Report.

[189] The PCM had been sent to Ford, which did not have the capacity to download the data. In order for the PCM data to be downloaded, Bosch - the module manufacturer - had to first develop the necessary software, which Bosch had apparently neglected to do when the PCMs was supplied to Ford for installation in its vehicles, and which did not occur until almost eighteen months after this fatal collision.

[190] When he writes in the email about being "required to interpret this", Kelly is referring to the data which had been downloaded from the PCM that had been extracted by Unhola some seventeen months earlier. When Kelly wrote this email, he had just been advised that the data would soon be forthcoming and available for analysis.

[191] Kelly had never been trained to analyze and interpret this type of data. His vive voce evidence makes this clear time and again. He is "guessing" that Kern or Hewitt (Jeff) would be required to do the interpretation.

[192] That Kelly would even consider proposing - or even, as he claimed in his testimony, enquiring of a superior about - the alternative of satisfying the Mohan prerequisite that he "must be qualified to offer an opinion" and "must possess special knowledge and experience in relation to the matters in issue" via Kern's training by coming to see him, is troubling in a witness being proffered by the Crown as an expert. (Emphasis added)

[193] Exhibit "AA" – along with the evidence of Kelly in examination-in-chief and cross-examination concerning his purported expertise in the interpretation of module data, and, along with the unavailability of the draft report Kelly submitted to Kern for peer review, are relevant to the issue of Kelly's qualifications to offer an expert opinion (the third Mohan prerequisite) and, accordingly, inform my conclusion regarding the admissibility of Kelly's expert evidence. (Emphasis added)

[194] That said, I am not satisfied that it is probable that Kelly will be (or, more accurately was) unable to present his testimony – more specifically those portions of his expert testimony that otherwise satisfy the Mohan prerequisites - independently and impartially. (Emphasis added)

[195] My decision is informed by the manner in and degree to which I will restrict the admissibility of Kelly's proposed expert evidence. It will be confined 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.

[196] 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.

[197] I will also admit his evidence regarding speed calculations and distance calculations, his evidence on co-efficient of friction measurement using the Vericom VC-3000 accelerometer, and his evidence on the measurement of collision scenes, including the use of levels and the Sokkia SRX5 Total Station.

[198] Those portions of his expert testimony that I do admit will be received subject to weight. (Emphasis added)

[199] All other portions of his evidence – both as contained in his Final Report and in his vive voce testimony – will be excluded.

[200] I have come to this conclusion for a number of reasons.

[201] First, the evidentiary record supports findings of a lack of competence and/or care in this investigation by Kelly. In particular, there are significant errors in his final report (Exhibit "MM"), including:

• b. the placement of the westbound Natsis vehicle in the westbound lane one second before impact with the eastbound Casey vehicle, which impact he then opines took place well over the double centre lines in the eastbound lane near the south shoulder;
• c. the misidentification of faded painted lines (road lane dividers) as skip skid tire marks; and
• d. the observation that there were no other pre, or post, tire marks located anywhere near the scene when in fact the photographs taken of the area where the Natsis vehicle came to rest following the impact contain evidence of tire marks.

[202] In the result, I will not admit his proposed expert evidence regarding "the interpretation of tire marks at collision scenes" because I am not satisfied that Kelly meets the Mohan prerequisite that he is "an expert witness qualified to offer an opinion and/or possessing special knowledge and experience in relation to the matters in issue".

[203] Insofar as the error regarding the placement of the Natsis vehicle one second before impact, I am satisfied on the evidence that this error was one of inadvertence rather than intention. I make this finding cognizant of the fact that the placement of the Ford in the westbound lane is entirely at odds with the expert opinion Kelly is proffering; indeed, the proper placement of the Ford is effectively the lynchpin to the Crown theory of the case that Natsis caused the death of Casey.

[204] That the error was inadvertent does not explain how it was missed by Kelly when he (presumably) proof read his draft report before submitting it to Kern for peer review, nor does it explain how it was missed by Kelly when he (presumably) reviewed the report after it was returned by Kern and before Kelly submitted it to the Crown in final form, nor does it explain how Kelly continued to miss the error as he (presumably) reviewed his Final Report in preparation for giving evidence at this trial.

[205] In my view, this is an error that goes to the weight to be given his evidence rather than its admissibility.

[206] Second, I will not admit any of Kelly's proposed expert evidence concerning the ACM data from the Dodge or the RCM data from the Ford - both of which he makes reference to in his Final Report – or concerning the PCM data from the Ford.

[207] Based upon (a) his evidence both in chief and under cross-examination on the voir dire, (b) the contents of exhibit "AA", and (c) the unavailability of his draft report, I am not satisfied that Kelly meets the Mohan prerequisite that he is an expert witness qualified to offer an opinion and/or possessing special knowledge and experience in relation to the matter (module data) in issue.

[208] Finally, I will not admit Kelly's proposed expert evidence concerning "perception reaction time." Based upon his evidence both in-chief and under cross-examination on the voir dire and given the unavailability of his draft report, I am likewise not satisfied that Kelly meets the Mohan prerequisite that he is an expert witness qualified to offer an opinion and/or possessing special knowledge and experience in relation to the matter in issue.

[209] With respect to the issue of draft reports, since the matter was so thoroughly litigated I think it is important that Crown and Defence, and especially the O.P.P. and its officers, have the benefit of my thinking.

[210] A preliminary question to be determined is whether a draft report prepared by a police officer and submitted to a fellow officer for peer review – in circumstances where that (submitting) officer (a) is to be proffered by the Crown as an expert witness and (b) then submits a final (post-peer review) report for disclosure purposes - constitutes "relevant information in possession of the Crown" such that it gives rise to an obligation on the Crown to preserve it.

[211] For the reasons that follow, I do not believe it does.

[212] 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.

[213] 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.

[214] 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.

[215] 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.

[216] That is not, however, the end of the story.

[217] 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".

[218] To summarize the pertinent evidence on this issue:

(1) Draft copies of the expert reports of Kelly and Hewitt were submitted, in either hardcopy or digital format, to Kern for review.

(2) All draft copies were (deleted and/or discarded and/or) destroyed by the deliberate actions of Kelly, Hewitt and Kern following the review process.

(3) From the reason(s) given by the various Crown witnesses for the disposing of drafts I find that it has never been the practice of technical traffic collision investigators and collision reconstructionists in East Region to maintain drafts; rather, it has always been the practice of technical traffic collision investigators and collision reconstructionists in East Region to destroy drafts without any thought given to the merits of maintaining them. (Emphasis added)

(4) There is no evidence before me that any attempt was made by the police (or otherwise) to utilize forensic recovery methods to recover (any of) the destroyed drafts. There is no evidence before me that any such an attempt would have succeeded.

(5) No official O.P.P. policy - including the SOP or Police Orders - mandates the destruction of a draft collision reconstruction report following submission of the final report to the Crown or otherwise. There is no evidence before me of any official O.P.P. policy mandating the retention of drafts.

(6) There was uncertainty on the part of all three proposed experts regarding what changes if any were made to the reports.

[219] 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.

[220] 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 third Mohan prerequisite.

[221] As noted above, its unavailability is one of the reasons why I have excluded significant portions of Kelly's evidence.

Hewitt

[222] I am not satisfied that the defence has met its burden of establishing that there is a realistic concern that Hewitt is biased.

[223] In my respectful view, the evidence relied upon by the defence in support of their submission that Hewitt is biased, partial, and lacking in independence is either irrelevant to, or unconvincing on, that determination. (Emphasis added)

[224] More particularly, while the alleged failure of Hewitt to make more detailed notes of meetings, conversations, and correspondence he had concerning especially the development, enhancement, or alteration of his (expert) opinion(s), may be relevant to the issues addressed by the third Mohan prerequisite, it does not inform my determination of whether or not Hewitt is biased, partial, and/or lacking in independence.

[225] Likewise, the failure of Hewitt to maintain the draft of his report in the form in which it was submitted for peer review and/or in the form in which it was received back from Kern – while potentially relevant to the same Mohan issues – is not material to my assessment of whether or not he is biased, partial, and/or lacking in independence.

[226] The adequacy or inadequacy of the O.P.P. peer review process does not inform the issue of Hewitt's alleged bias, nor does any non-compliance by Hewitt or, more accurately, his superiors with O.P.P. Standard Operating Procedures during the process of qualifying as a Level IV Reconstructionist.

[227] As for the peer review of his reports by Kern and Poirier, while any inadequacies in their process or execution may reflect upon the competence of his peer reviewers, I do not agree with the submission that it is relevant to my assessment of whether or not Hewitt's is biased.

[228] Regarding the documented instances of Hewitt responding to requests from the Crown to perform investigative functions directly relevant to his proffered expert opinion, I disagree with the suggestion that it is somehow indicative of Hewitt's bias.

[229] Undoubtedly Hewitt's testimony went well beyond the four corners of his report(s). The reality is that he was directed by the Crown during examination-in-chief – for reasons that were perfectly apparent - to the areas that had already been addressed in Kelly's report and testimony. That was in my assessment a function of the dynamics of this trial. It does not inform an assessment of Hewitt's bias.

[230] There were a number of matters raised in Hewitt's evidence that merit further comment. I will deal with them chronologically.

[231] First is the testimony Hewitt provided regarding the error in Kelly's report, wherein Kelly places the Ford in the westbound lane one second prior to impact.

[232] Hewitt's testimony was that he had noticed this error when he first reviewed Kelly's report at the end of September, 2012 (that is, when he was assigned the preparation of the Collision Reconstruction Supplementary Report by Kern).

[233] Hewitt testified that despite this discovery, he did not bring the error to Kelly's attention then, or at any time. Nor did he bring it to the attention of Kern, or the Crown, or anyone else in time for it to be addressed (that is, corrected) prior to the commencement of trial (or even prior to the commencement of Kelly's testimony).

[234] Hewitt was asked why he had not done so. He said he had no answer.

[235] It is unclear to me whether by this answer Hewitt meant to convey that he could not justify his failure to do so, or that he meant that it had simply never occurred to him at the relevant time to do so, or otherwise.

[236] The defence submission is that – like Kern when he peer reviewed Kelly's report - Hewitt had not noticed the obvious error, that this omission was glaring and weighed against Hewitt's proffered expertise, and that in saying he had noticed the error he was simply trying to cover up for his own incompetence. Hewitt, of course, maintains otherwise.

[237] Assuming Hewitt did notice the error when he says he did, one can only speculate about the possible reasons he could have had for not advising Kelly et al immediately. Was he hoping (against hope) that the error would not be noticed? Unlikely. Was he thinking that it would be seen for what it is – an unintended, sloppy mistake – and let go at that? Much more likely. Was it a matter of not wanting to do anything to help a colleague, or this particular colleague? Extremely unlikely. Was it because he did not wish to show up the lead re-constructionist for the region, who had peer-reviewed Kelly's report and missed the error?

[238] While it does not seem reasonable to me that Hewitt never gave any consideration at the time he discovered the error to doing his part in correcting it, I suppose that is also possible.

[239] Whichever it is – not noticing it until Kelly got into the witness stand and was asked about it and then learning about it through media coverage or as scuttlebutt from his colleagues or otherwise, or noticing it as he says he did and doing nothing about it – neither alternative reflects well upon Hewitt.

[240] Having said that, in my view neither alternative informs the issue of Hewitt's alleged bias.

[241] Second is Hewitt's treatment of the "consulted with our team in Dearborn" response received from Stodola in October, 2013 following Hewitt's meeting with Kern.

[242] As noted above, Hewitt submitted his Collision Reconstruction Supplementary Report to the Crown for disclosure to the defence on October 28th. In it, he addresses the information received with the statement with the qualifiers, "It was confirmed by Ford …" and "Ford further explained…"

[243] In my view, while the words Hewitt uses are technically accurate, they fail to convey the unattributed, third-hand hearsay nature of the information received to the reader. Hewitt acknowledged that he never learned who the members of the team in Dearborn were. Some form of caveat should have been included in his report.

[244] Again, in my view this omission does not inform the issue of Hewitt's alleged bias.

[245] Third is Hewitt's testimony regarding his telephone call of March 13, 2013 to Kelly. Hewitt was at the time preparing to give evidence in this trial. As he explained it, he did not have a copy of Kelly's report and could not recall how Kelly had referred to the "black mark that ran through the scene" in his report. As mentioned above, Kelly had referred to it/these in his Final Report as the "skip-skid" tire marks.

[246] Kelly was at that date in the process of testifying on this voir dire. He had just been examined and cross-examined in relation to the issues of "independence", "partiality", and "bias", and was about to be re-examined. He had not yet commenced the substantive portion of his evidence relating to the expert opinions he was being proffered to give and his qualifications to give them. He would first testify about the "skip-skid" marks during his examination-in-chief on March 20th.

[247] As noted above, Hewitt testified that he had read Kelly's Final Report at the end of September, 2012, some five and one half months earlier. His evidence was that he did not retain or have access to a copy.

[248] Significantly, Hewitt testified that he did not agree with Kelly's characterization of the marks as "skip-skid" marks. In fact, Hewitt would agree with the defence contention (with which Kelly would disagree as he vigorously maintained his position) that the marks were old, faded lane markings.

[249] There was an order in effect excluding witnesses, and Hewitt was aware of it. Hewitt agreed with the suggestion – in my view he could hardly do otherwise - that this telephone "inquiry" had at least the potential of telegraphing to Kelly that his documented opinion was in error. As Hewitt acknowledged, any such conversation should have taken place before Kelly began his testimony, or not at all.

[250] If for whatever reason he had wanted to see what Kelly had written in his Final Report in preparation for giving his testimony, Hewitt could have asked Besner, or Kern, or the Crown, to arrange to provide him with a copy for his reference. No one could justifiably criticize him for that.

[251] In my view, there is some merit to the submission that this telephone call at least potentially informs the issue of Hewitt's bias.

[252] However, my assessment of the totality of Hewitt's errors and/or omissions and/or lapses of judgment is that they are cumulatively unconvincing on the issue of bias. Accordingly, I find that the defence has failed to discharge its burden of establishing that there is a realistic concern that Hewitt is biased.

[253] I am satisfied that Hewitt's evidence is logically relevant to a material issue, that it is necessary in the sense that it deals with subject-matter that is outside the experience and knowledge of ordinary people, that he is qualified to offer an opinion and possesses special knowledge and experience in relation to the matters in issue, and that the proposed opinion does not contravene any other exclusionary rule. In particular, based upon his curriculum vitae and his evidence, I am satisfied that Hewitt meets the Mohan prerequisites as an expert accident re-constructionist in all of the sub-categories for which he is proffered by the Crown.

[254] Accordingly, I will not exclude his expert evidence.

Kern

[255] I am not satisfied that the defence has met its burden of establishing that there is a realistic concern that Kern is biased.

[256] In my respectful view, the vast majority of the evidence relied upon by the defence in support of their submission that Kern is biased, partial, and lacking in independence is either irrelevant to, or unconvincing on, that determination. (Emphasis added)

[257] If Kern's peer review – despite the several read-overs – did not catch the obvious errors in Kelly's report, then his lack of care and/or attention to detail may inform his diligence as a peer reviewer, and perhaps his competence as an expert, but do not assist in my determination of whether Kern is biased.

[258] If Kern acted as both peer reviewer and co-investigator i.e. by acting as a source of information or advice to Kelly and Hewitt and seeking out information from Ford as a result of a query from Hewitt, he did so not only as a fellow reconstructionist but as the officer responsible for the Technical Collision Investigation and Reconstruction program in the region. Given the purpose of the peer review as Kern understood it – quality assurance – I do not agree with the submission that this dual role places Kern in a position of conflict or that it informs the defence allegation that he is biased.

[259] A word about peer review. Kern (and Kelly and Hewitt) understand the term to mean "quality assurance", "another set of eyes", which is to say a process intended to identify and correct errors in spelling, grammar, and formatting, and, to identify and correct errors in calculation, and, to ensure that the correct formula(e), interpretation(s), and concept(s) are being applied, and that the writer is not opining beyond his qualifications.

[260] It is not intended - nor in my view should it be expected - to have the same meaning as peer review has in the academic context (that is, a process in which articles, papers, theses, and other works are submitted for evaluation by independent researchers and/or specialists in the relevant field, area, or discipline prior to acceptance for publication).

[261] If Kern failed to implement the risk management process mandated by the OPP, that may reflect upon how assiduously he discharges his duties as lead reconstructionist for the region, but hardly informs an assessment of his bias.

[262] In my analysis of the evidence regarding Kelly and Hewitt, I commented upon the failure to make proper notes, the failure to maintain drafts of reports, the failure to inform the Crown or the Court of errors detected in the work of others, and the failure to ensure that (Kelly's) report was marked provisional or that Hewitt's report clearly identified the unattributed hearsay nature of the information received from Stodola. I will not repeat them here. Suffice to say that, in my view, they do not inform my assessment of Kern's alleged bias.

[263] I am satisfied that Kern's evidence is logically relevant to a material issue, that it is necessary in the sense that it deals with subject-matter that is outside the experience and knowledge of ordinary people, that he is qualified to offer an opinion and possesses special knowledge and experience in relation to the matters in issue, and that the proposed opinion does not contravene any other exclusionary rule.

[264] In the result, I would not exclude the expert evidence of Kern.

RESULT

[265] The expert evidence of Kelly is admitted in part, subject to weight.

[266] The expert evidence of Hewitt is admitted, subject to weight.

[267] The expert evidence of Kern is admitted, subject to weight.

Date: October 6, 2014

Signed: "Justice Neil L. Kozloff"