Court File and Parties
Ontario Court of Justice
Date: 2018-07-25
Court File No.: Ottawa 16-A12529
Between:
Her Majesty the Queen
— and —
Steven Bruce Conley
Before: Justice David A. Berg
Ruling on Crown Application to Qualify Detective Alain Boucher as an Expert Witness in these Proceedings
Counsel:
- Mr. J. Ramsay — counsel for the Crown
- Mr. D. Lamb — counsel for the defendant
- Mr. F. Mansour — counsel for the defendant
BERG J.:
[1] On July 7, 2018, I sent counsel an email advising that I would not qualify Detective Boucher as an expert witness in these proceedings. I wrote:
Please be advised that while I have yet to write out my ruling, I have come to the conclusion that I will not qualify Det. Boucher as an expert witness in these proceedings. I will provide more fulsome written reasons in the future, however, briefly put: his evidence is of a narrative and factual nature and basically goes over material that I received through other witnesses and I do not find that I require the assistance of an expert to understand their evidence.
[2] The following are my reasons. I will use the present tense despite the fact that I have already ruled on this issue.
The Test for the Admissibility of Expert Evidence
[3] The law concerning the admissibility of expert evidence is clear. In R. v. Abbey, 2017 ONCA 640, Laskin J.A. for the unanimous Court of Appeal, succinctly summarized the test in White Burgess Langille Inman v. Abbott and Haliburton.
The modern Canadian law on the admissibility of expert evidence began with the judgment of Sopinka J. in R. v. Mohan, [1994] 2 S.C.R. 9. But in the last two decades since Mohan was decided the law on expert evidence has changed significantly. In Abbey #1 itself – on the Crown's appeal from the acquittal at the first trial – my colleague Doherty J.A. reformulated the Mohan test for admissibility to make it easier to apply. And recently in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, Cromwell J. adopted with "minor adjustments" Doherty J.A.'s reformulation of Mohan.
The test in White Burgess is now the governing test for the admissibility of expert evidence. It adopts a two-stage approach, first suggested in Abbey #1: the first stage focuses on threshold requirements of admissibility; the second stage focuses on the trial judge's discretionary gatekeeper role. Each stage has a specific set of criteria.
The test may be summarized as follows:
Expert evidence is admissible when:
(1) It meets the threshold requirements of admissibility, which are:
a. The evidence must be logically relevant;
b. The evidence must be necessary to assist the trier of fact;
c. The evidence must not be subject to any other exclusionary rule;
d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfill the expert's duty to the court to provide evidence that is:
i. Impartial,
ii. Independent, and
iii. Unbiased.
e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose; and
(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:
a. Legal relevance,
b. Necessity,
c. Reliability, and
d. Absence of bias.
In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements.
The Facts
[4] On September 1, 2016, Mr. Conley was driving a large truck in downtown Ottawa. It is alleged that he was criminally negligent in the operation of that motor vehicle and thereby caused the death of a young woman, Nursat Jahan. He is also charged with a count of dangerous driving causing the death of Ms. Jahan arising out of that incident.
[5] Detective Boucher was called as a witness for the Crown who wished him to be qualified as an expert in collision reconstruction. While he had not attended on September 1, 2016 at the intersection where Ms. Jahan died, he did become involved in the investigation at a later date and ultimately prepared a collision analysis report that was finalized in January of 2017.
Issues with the Data
[6] During the course of his testimony, it became clear that unbeknownst to Detective Boucher, he had been provided with certain erroneous data upon which to base his report. Thus the accuracy of the report was put in question. However, I am of the view that these problems with the data are not sufficient to disqualify Detective Boucher from testifying as an expert absent any other issues. On the other hand, the problems might very well limit the weight that I could give his expert opinion in this case should he be so qualified.
[7] I wish to make it clear as well that I make no negative finding in regards to Detective Boucher's impartiality, independence, or bias. He testified in a straightforward manner, did not try to minimize the aforementioned problems with the data, and was well aware that his duty as an expert witness would be to the court itself and not the parties.
Analysis of the Collision Analysis Report
[8] As I have indicated above, Detective Boucher prepared a collision analysis report. It has been marked as a lettered exhibit in these proceedings. It consists of fifteen pages plus appendices. The analysis portion of the report was based on factual reports, notes, measurements, photographs and recordings that were not prepared by the detective. Some of these materials (e.g., surveillance video-recordings; the re-enactment video-recordings [see below]) have already been made exhibits in these proceedings prior to Detective Boucher's testimony. Some have been explained through the evidence of other witnesses (e.g., the results of the mechanical inspection by Constable Stephane Fournier of Mr. Conley's truck). Individually, none are of a nature that would require the Court to seek the further assistance of an expert witness in order to understand them.
[9] For the most part, the analysis portion of Detective Boucher's report consists of descriptions that could have been determined from the totality of the materials by anyone examining them. No expertise was required to come to those determinations. Put another way, a trier of fact would not require the evidence of an expert witness to understand the significance of this body of material nor would he or she be unable to form their own conclusions so unaided. I have provided the conclusion section from Detective Boucher's report below as an appendix.
The Re-enactment Video
[10] A particular subset of the materials relied on by Detective Boucher during the preparation of his report requires further comment. On November 2, 2016, Detective Boucher arranged for a partial re-enactment of the events leading up to the death of Ms. Jahan. He arranged for a truck to be driven the same route leading to the intersection where she died. At that intersection, he stationed a person on a bicycle more or less where Ms. Jahan would have been as she waited for the light to change; the height of the person on the bicycle was purported to be that of Ms. Jahan. The driver of the truck had a small video camera strapped to his forehead which in theory replicated what Mr. Conley would have seen on the day in question. As the driver of the re-enactment truck drove towards the intersection, the video camera also recorded his verbal commentary about what he could observe. This re-enactment was repeated several times that day and recorded.
[11] There were problems that became apparent during Detective Boucher's testimony with the accuracy of this re-enactment. For example, I have been advised that between September 1 and November 2, 2016, the City of Ottawa changed the placement of both the motor vehicle lane and bicycle lane stop lines. Detective Boucher was not aware of that fact when he conducted the re-enactment and as a result, the 'actors' may not have been placed accurately. Another example of a problem is the fact that Detective Boucher may have been provided with inaccurate height measurements for both the accused and Ms. Jahan. As well, as the police did not use the actual truck that Mr. Conley was driving on September 1 or determine things such as the height setting for the driver's seat on that day. Given that the main purpose of the re-enactment was to determine what Mr. Conley could have seen of Ms. Jahan on her bicycle from his vantage point in the cab of his truck, accurate measurements would be highly important. It is to be remembered here that Mr. Conley was located high in the cab of a large truck while Ms. Jahan was on her bicycle in the narrow bike lane immediately to the south of the truck.
[12] However, let us leave aside for a moment the problems inherent in this re-enactment. Let us assume that the 'actors' were properly placed and the measurements accurately reflect the situation that obtained on September 1 in the moments leading up to Ms. Jahan's death. The video of the reenactment assists me in understanding, in a general sense, the situation just prior to the death of Ms. Jahan. However, I do not require the assistance of an expert to understand that situation. Both literally and figuratively, the video speaks for itself. No specialized knowledge is required to understand it and be able to draw the appropriate inferences. I am in as good a place as Detective Boucher to understand this evidence. I can understand what the re-enactment driver is saying and I can come to my own conclusions about the weight to be given to his evidence in light of all the evidence that I will hear at this trial (including the non-expert evidence of Detective Boucher). I can also come to my own conclusions about how to factor in the problems with the measurements, etc.
Conclusion
[13] In conclusion, I decline to qualify Detective Boucher as an expert witness in these proceedings on the basis that no expert evidence is necessary here to assist the trier of fact.
Appendix: The Conclusions from Detective Boucher's Collision Analysis Report
Conclusion
The cyclist, Nusrat Jahan, was wearing blue clothing. She was visible and riding her bicycle within the designated bicycle lane.
The waste container truck driver, Steven Conley, should have seen the cyclist who was stopped in her bicycle lane as he approached the intersection of Laurier Ave W and Lyon St N.
The traffic lights for eastbound traffic on Laurier Ave W at Lyon St N were working properly and clearly visible by both Jahan and Conley.
First Jahan and then Conley stopped at their respective stop lines within their lanes for a red light on Laurier Ave W at Lyon St N.
Jahan had been stopped within her lane at the stop line for 47 seconds before the light changed to a green arrow.
The traffic lights for eastbound traffic on Laurier Ave W and Lyon St N, displayed a green arrow (only for traffic going straight through) and both Jahan and Conley began to proceed through the intersection.
Conley proceeded to turn right before the solid green light was displayed for eastbound traffic on Laurier Ave W and Lyon St N.
Conley proceeded without yielding to Jahan who had the right of way.
Had Conley waited for the solid green light on Laurier Ave W and Lyon St N, this collision would not have occurred.
Released: July 25, 2018
Signed: Justice David A. Berg