Ontario Court of Justice

Date: August 2, 2018

Court File No.: Ottawa 16-A12529

Between:

Her Majesty the Queen

— AND —

Steven Bruce Conley

Before: Justice David A. Berg

Decision released on: August 2, 2018

Ruling on Defence Application to qualify Mark Paquette as an Expert Witness

Counsel

Mr. J. Ramsay — counsel for the Crown

Mr. D. Lamb — counsel for the defendant

Mr. F. Mansour — counsel for the defendant

Decision

BERG J.:

[1] 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.

[2] Mr. Conley sought to have Mark Paquette qualified to testify as an expert witness in these proceedings, his expertise being forensic collision reconstruction. I have ruled already from the bench that I would not qualify him as an expert in that field with reasons to follow. However, I did agree that his preparation of the computer generated graphic representation of his non-expert 'blind spot analysis' and the marrying of that graphic representation to a plan of the intersection where Ms. Jahan died required expertise outside of the experience of the court. The resultant graphic representation is essential for me to understand the parameters of the blind spot as the evidence shows that the blind spot in question was of an irregular shape and would be difficult if not impossible for me to visualize mentally.

[3] To be clear, this presentation of the blind spot in graphic form does not increase or decrease the reliability of Mr. Paquette's non-expert testimony as to how he analyzed the blind spot. On the other hand, should the Crown convince me that there were problems with some of Mr. Paquette's observations, it is clear that the accuracy of the graphic representation might suffer thereby.

[4] The following are my reasons for declining to qualify Mr. Paquette as an expert in forensic collision reconstruction in these proceedings. 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

[5] 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.

Application to Mr. Paquette

[6] Mr. Paquette was retained by Mr. Conley to perform a blind spot assessment with respect to the truck that Mr. Conley was driving on September 1, 2016. He was also asked by the defence to review the police reports that were generated as a result of the investigation into the death of Ms. Jahan.

[7] Mr. Paquette attended the relevant intersection in May of this year and mapped it out using a 3-D scanner. He also, in another location, went with a colleague and Mr. Conley to where the truck was being kept. He had Mr. Conley adjust the driver's seat to the position that would be normal for him. Mr. Paquette then had Mr. Conley sit in the driver's seat and took the measurements required to determine Mr. Conley's eye level when driving the truck. Mr. Conley then did a blind spot assessment.

[8] To do the blind spot assessment, Mr. Paquette sat in the same driver's seat and adjusted the seat so that his eye level was the same as that of Mr. Conley when he was in that seat. A colleague of Mr. Paquette then moved around outside of the truck carrying a measuring rod that had been marked off with Ms. Jahan's height. As the colleague moved the rod, Mr. Conley would call out when the marking became visible and the colleague would then spray paint a dot on the ground to indicate the sightlines. The dots were then joined to create the outline of the blind spot.

[9] The next step was the use of a scanner to measure the truck and its associated blind spot as outlined with the spray paint. Mr. Paquette was then able to generate a figure showing the truck with a graphic illustration of the shape of the blind spot. He was then able to overlay a graphic representation of the truck and blind spot over a scale diagram of the intersection of Laurier Ave. and Lyon St. that was based on measurements taken by the police. A further step was to overlay on top of this last scale diagram a police generated graphic representation of the blind spot; the police produced their representation during the course of their investigation and independently of Mr. Paquette.

[10] I do not require the assistance of an expert witness to understand the manner in which the blind spot analysis was conducted nor the significance of its results; I am able to come to my own conclusions unaided by any specialized knowledge. However, the computer-aided generation of the graphic representation of the truck and the blind spot(s) overlaid on a scale diagram of the intersection clearly required specialized knowledge outside of the ken of the trier of fact. I note here that it would have been exceedingly difficult and perhaps impossible for me to have mentally visualized the parameters of the blind spot. The graphic representation is extremely important.

Conclusion

[11] In conclusion, I decline to qualify Mr. Paquette in this matter as an expert in forensic collision reconstruction on the grounds that I do not require his expertise to understand the manner in which he conducted the blind spot analysis or the significance of the results. However, I do accept the defence submission that he should be qualified in this case as an expert in the narrower field of preparing computer-generated graphic representations of accident reconstructions.

Released: August 2, 2018

Signed: Justice David A. Berg