Ontario Court of Justice

Date: April 13, 2015

Sault Ste. Marie Court File No.: 907

Between:

HER MAJESTY THE QUEEN

— AND —

SAMUEL ST. AMAND

Before: Justice John Kukurin

Heard on: December 19, 2014

Ruling released on: April 13, 2015

Counsel:

• D. Kirk, counsel for the Crown
• M. Bennett, counsel for the defendant S. St. Amand

KUKURIN J.

These are Reasons for my decision on an application brought by the Crown in the midst of a sentencing hearing. The order sought in the application is one granting to the Crown a copy of and access to the file of Dr. Paul Valliant, a registered Psychologist, and a proposed expert witness being called by the accused.

Background of Application

Some background is needed to explain the context of this application. On March 31, 2014, the accused entered a plea of guilty on a charge of making available child pornography, contrary to s. 163.1(3) of the Criminal Code. The Crown had elected to proceed by indictment, as a result of which, the accused was liable to a sentence of imprisonment not exceeding ten years and to a minimum sentence of imprisonment of one year. The indications are that the Crown is seeking a custodial sentence in excess of the minimum term. A sentencing hearing ensued. Facts were not read into the record by the Crown. Instead, the Crown called two witnesses, both police officers, to establish the elements of the offence, and the background and circumstances in which it was committed. The sentencing hearing was then adjourned with a pre-sentence report ordered. The adjournment was also to permit the attendance, on a later date, of a psychologist as a defence witness, as he was not then able to be present.

The psychologist, Dr. Paul Valliant, has apparently prepared a report of a psychological assessment and risk evaluation which he did of the accused. This was not pursuant to any court order. He was retained to do this by the defence. His written report was provided to the Crown by the defence quite some time ago. It has not yet been filed with the court. In the course of this assessment, a battery of psychological tests was administered to the accused. The Crown is asking for an order requiring Dr. Valliant to produce to it the "raw data" which includes these psychometric tests and instruments, as well as any other documentation that he has, and on which he relies for his psychological evaluation and assessment of risk.

This application by the Crown was prompted by the position taken by Dr. Valliant when he appeared at the resumption of the sentencing hearing on November 12, 2014. At that time, he was attending as a witness under subpoena by the defence, and was being tendered as an expert witness. He was apparently not served with a subpoena duces tecum.[^1] Such a subpoena orders the person served to bring with him or her all documents in his or her possession specified in the subpoena document. The Crown had asked the defence for copies of the "raw data" of Dr. Valliant as it related to his assessment of the accused. This request was apparently made only very shortly before Dr. Valliant attended on November 12, 2014. He did not have his "raw data" documentation with him. More importantly, he indicated that he would not produce these to the Crown even if he had them. The basis for this refusal was his stated belief that he was prohibited from doing so by the standards of professional conduct imposed on him by his governing body, namely, The College of Psychologists of Ontario. He did qualify this refusal to state that he would produce this raw data documentation to another person designated by the Crown who, like himself, was a registered psychologist.

Dr. Valliant's attendance as an expert witness was challenged by the Crown. Accordingly, a voir dire took place on November 12, 2014. My Reasons for my ruling on this issue were released on November 20, 2014. Time constraints did not permit dealing with the issue of Crown entitlement to production of the "raw data" documents it was requesting. In addition, no formal application had been brought. Also, Dr. Valliant required some time to obtain some information or direction or advice from his governing body, or from its counsel or from his own legal advisor.

The Application for Production to the Crown

The Crown's application has since been formally brought. It was served on counsel for the accused as well as on Dr. Valliant.[^2] The response of Dr. Valliant was a letter to Crown counsel indicating that he had consulted with counsel representing the Canadian Psychological Association who apparently advised him that once a "Court Ordered Subpoena was made", he could release his "file" relating to the accused to Crown counsel.

Dr. Valliant acknowledged receipt of the Crown's application to have access to his file on the accused. His stated position in his letter is set out in his words:

"Once I have received the Subpoena I will release my file to you"

He did not attend at the hearing of the application. Nor did he have present anyone representing him.

The accused had not formally filed anything in response to the application. However, at the hearing, a letter from defence counsel to Crown counsel dated November 24, 2014 was filed with the court. In it, defence counsel states several things:

• That Dr. Valliant was under his subpoena to testify as an expert witness when the sentencing hearing resumes.
• That he does not intend to re-subpoena Dr. Valliant.
• That Dr. Valliant is not required by the subpoena served on him by defence counsel to produce his "raw data".
• That if Crown counsel wants this "raw data" from Dr. Valliant, he should serve Dr. Valliant with a subpoena requiring that he bring it with him to court.

The Issue

What exactly is the issue at this hearing? It no longer seems to be a refusal on the part of a psychologist to release his file to a Crown because of restrictions placed on him by his governing body. It seems clear from the Standards of Professional Conduct that there is no specific provision that requires Dr. Valliant to produce his "file" or his "raw data" only to another psychologist.[^3] Nor do these include any specific injunction preventing him from disclosing such materials to someone like Crown counsel in the circumstances of a case like this.

What seems to be the issue is where the responsibility lies for getting the documentation sought to the court, and what is the appropriate procedure for doing so.

The accused opposes the application of the Crown. He opposes the order sought by the Crown. What the accused argues is that it is the Crown that wants this documentation. Therefore the onus or responsibility is on the Crown to take the steps to get it. As for how the Crown is to do so, the appropriate procedure is by way of a subpoena duces tecum served on Dr. Valliant by the Crown specifying therein precisely what the Crown wishes him to bring to the court when he testifies. This is particularly appropriate as it gives to a person such as Dr. Valliant, advance notice of what he is being ordered to bring. This, in turn, provides time for such a person to get advice on whether he or she can or should comply with the direction in the subpoena, or whether he or she should seek to have the subpoena quashed.

The accused insists that it would be setting a bad precedent if an obligation were to be placed on the defence to require its witnesses to bring with them all of their documentary materials when they attend at court in response to a subpoena. This would be even more objectionable when the accused neither needs nor wants all of these materials. It has done enough, it argues, in ensuring that the witness is present at the appropriate time for the hearing, and that it has given plenty of advance notice to the Crown as to what the witness will be testifying.

The Crown disagrees. It maintains that it is entitled to production of this "raw data" documentation that underlies whatever expert opinion or risk assessment may be forthcoming in the testimony of Dr. Valliant. It requires this for an effective cross-examination of the witness. At this point, the Crown is not intending to retain its own expert psychologist to review Dr. Valliant's report and his raw data, but if it did, it would give notice of this intention to the accused in furtherance of its ongoing disclosure obligations. It is content, in fact, to have these materials provided on the day set for Dr. Valliant's testimony at the resumption of the sentencing hearing.

In support of its position, the Crown relies on the 1999 decision of Stone[^4] from the Supreme Court of Canada. The heart of this decision as to the issue is:

"… once a witness takes the stand, he/she can no longer be characterized as offering private advice to a party. They are offering an opinion for the assistance of the court. As such, the opposing party must be given access to the foundation of such opinions to test them adequately."

The Crown disagrees that it should subpoena the defence's expert witness with a subpoena requiring the witness to bring to court with him his raw data. This witness is not being called by the Crown in furtherance of its case on the sentencing. He is being called by the accused. The Crown does not want to examine this witness in chief; it wants to be able to cross-examine this witness. It does not want the burden of preparation and service of a subpoena, nor of the costs or expenses associated with having a witness, particularly an expert witness, travel from another city to give evidence that is expected to favour the accused.

The Crown also contends that, until the expert witness is actually called to testify, it has no right to have access to that expert's documents. Particularly not from the defence. The defence has no reciprocal disclosure obligation to the Crown, even at a sentencing hearing.[^5] As for the expert witness, once the expert begins to testify, whatever privilege the expert may claim in his documents is waived.

Accordingly, from a procedural point of view, the Crown should not be required to serve on Dr. Valliant, a subpoena duces tecum in order to ensure that he comes to court and comes with his raw data documents in hand.

Analysis

The court should never lose track of what is put before it for its decision. In this case, it is an application for an order that grants to the Crown access to, by way of a copy of, Dr. Valliant's file as it relates to the accused in this case. The only question is whether the court should make such an order on the evidence on this application. If not, then the application should be dismissed. If an order is to be made, then the secondary question is what should be the wording of the order.

I agree that the foundational documents, that is, the "raw data", that informs the expert opinion and assessment report of Dr. Valliant are documents to which the Crown should have access so as to be able to test his opinion and assessment in its cross-examination of him. This follows the decision in Stone to which neither the accused nor Dr. Valliant takes any exception.

I agree that the reasons advanced by Dr. Valliant why he could not produce such documents to the Crown are without foundation. Even his own governing body contemplates a release of such "raw data" documentation in response to a proper "legal vehicle compelling the release of the entire file", which includes a court order or summons (subpoena). Nothing specific in Dr. Valliant's Standards of Professional Conduct precludes production of such materials.

I also agree that the defence is not obligated to produce these materials to the Crown. This is so before the Crown was made aware of the report prepared by the expert, or even after it received a copy of that report, or even after the expert was called to testify at the hearing. The defence does not have the disclosure obligations of the Crown, whether prior to or after a finding of guilt. The onus on the Crown after a finding of guilt is no longer to prove the offence beyond a reasonable doubt. It is to justify the sentence or other disposition that the court is being asked by the Crown to make in the case.

That being said, there is still the element of fairness that must be respected. It seems to me that fairness applies to the Crown, and to the accused, and also to the court. It was certainly fair for the defence to share with the Crown not only the fact of an assessment having been done, but also the written report of that assessment. I was not provided the date when that sharing took place, but infer it was made in a timely manner. It was fair of the Crown to advise the defence that it wanted to see the "raw data" underlying the assessment report in advance of its cross-examination of the author of that report. It was also fair for the defence to alert the Crown and the court of the position that the proposed expert witness was intending to take with respect to production of copies of his raw data.

Frankly, it makes more sense that this production be made in advance of the resumption of the sentencing hearing as the reason tendered for the request of the Crown for this material is to better prepare itself for cross-examination of this witness, in particular on the expert opinion evidence that this witness will be asked by the defence to give once he is called to testify. This is not unreasonable a request. What that opinion may be is hardly a secret at least from the Crown which was provided long ago with a copy of the witness' written assessment report. It is reasonable to infer that the Crown is more than generally aware of what that opinion will be when it is sought to be elicited from the witness stand. Advance production of the material which forms part of the foundation for the expert opinion is entirely understandable in the circumstances. Fairness to the Crown dictates that it have this material in preparation of its examination of Dr. Valliant.

Both Crown and defence have merit in their respective arguments. Ultimately, the decision on the application reduces down to practicalities. The issues are:

1. What triggers the obligation to produce the materials requested?
2. Once triggered, on whom does the onus fall to obtain and produce them?
3. How does the court exercise its authority to ensure such production?

In the present case, the trigger is the Crown's request for the raw data material of the proposed witness. It is appropriate that request is made by the Crown to the defence. This is because the witness is a witness being called to testify for the defence. The defence is in the optimal position to convey such request to the witness. The Crown is not, and should not be placed in a position of placing the witness under a subpoena duces tecum in order to obtain this material from the witness directly. This is clearly a defence witness and not a witness for the Crown. Nor should the witness be under subpoena from both Crown and defence at the same time. This would be confusing to the witness, awkward for the court and the trial process, and likely counterproductive. For the Crown to deal directly with a witness being called by the defence, while not inherently wrong would be unseemly. Accordingly, the best solution is for the defence to have the responsibility of being the intermediary between the Crown and the witness for purposes of production by the witness to the Crown of the requested data. This is not a clear onus falling on the defence. It is a contingent onus that will evaporate if the defence declines to call this witness to testify at the hearing.

This still leaves the written report of the proposed witness which has not yet been tendered to the court for introduction as part of the evidence at the hearing. Without any formal ruling at this point, I can indicate that this assessment report was not court ordered, and in the circumstances that have developed to date, the court would likely be receptive to excluding such a report if the author was not produced at the hearing to be cross-examined.

As for the court, it would be far simpler for the court to order Dr. Valliant to provide to the Crown a copy of the material it is seeking. However, this would remove the defence from the chain of production, something that I would not wish to happen. The defence has an integral part in the production process and it is important that it remain involved. I might also add that, although the court itself can call persons as witnesses in proceedings, this is a rarity, especially in an adverse proceeding such as this.

Order

Accordingly, my order is as follows:

1. The defence shall obtain from its proposed witness, Dr. Paul Valliant, a copy of the raw data material requested by the Crown, and shall provide a copy thereof to the Crown forthwith.

2. The order in paragraph (1) above shall terminate upon the defence providing to the Crown a written undertaking that it will not call Dr. Paul Valliant as a witness at a resumption of the sentencing hearing of the accused in this case.

3. The cost of photocopying shall be borne by the Crown and shall be at copy rates currently allowed by Legal Aid Ontario.

4. The disposition of any raw data materials which may be produced or delivered as a result of this order shall be dealt with by order of the court after hearing submissions as to such disposition from Crown, defence and the witness, Dr. Paul Valliant.

Released: April 13, 2015

Justice John Kukurin, Ontario Court of Justice

Footnotes

[^1]: S. 700(1) Criminal Code – A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject-matter of the proceedings. Form 16 is the form specified for both kinds of a subpoena, the subpoena ad testificandum, which compels attendance, and the subpoena duces tecum, which requires both attendance and bringing with the witness documents or other materials relevant to the subject matter of the proceeding.

[^2]: Served on each and filed on November 20, 2014.

[^3]: The "Standards of Professional Conduct" of the College of Psychologists of Ontario effective September 1, 2005 (Revised March 27, 2009) provide in paragraph 14.9 thereof the following:

**14.9 Protection of Test Security**

"A member shall protect the security of tests and respect test copyright. To this end a member shall distinguish between test data and test materials. When reasonable and appropriate, raw data from standardized psychological tests and other test data shall, upon request and with proper authorization, be released to clients and others. Test material, such as test questions and stimuli, manuals, and protocols should not be released."

[^4]: R. v. Stone, [1999] 2 S.C.R. 290

[^5]: Except with respect to a defence of alibi.