Court File and Parties

Ontario Court of Justice

Date: 2018-11-29

Court File No.: Brampton 3111 998 17 12659

Between:

Her Majesty the Queen

— and —

David Corbit

Before: Justice G.P. Renwick

Heard on: 29 November 2018

Reasons for Judgment released on: 29 November 2018

Counsel:

• C. Henderson, counsel for the Crown
• S. Malik, counsel for the Defendant David Corbit

Ruling on Application to Terminate the Evidence of a Witness

RENWICK J.: (Orally)

Introduction

[1] The Defendant faces a charge of criminal negligence causing bodily harm and dangerous driving causing bodily harm arising from a motor vehicle accident where he is alleged to have travelled through a stop sign, while texting on his phone, causing a terrible collision and significantly injuring his passenger, M.G.

[2] During the preliminary hearing, which began on 13 September 2018, M.G. began to testify, but during her cross-examination she began to experience chest pains and we took a recess to permit the witness a chance to get some fresh air. Subsequently, I was advised by the prosecutor, [1] that the witness was "done for the day," and she had been excused by the prosecutor because she did not feel well enough to continue.

[3] At that time, the prosecutor made an Application to discontinue the preliminary hearing without completing M.G.'s evidence. I held down the decision on that Application, which was opposed by the Defendant. We heard from two other civilian witnesses and the investigating police officer before the court ruled on the Crown's Application. That Application was dismissed and the matter was adjourned to continue the matter today.

[4] This morning, at the resumption of the proceeding, I was advised that M.G. was present, but there is a doctor's note advising against M.G. having to testify for health reasons. The prosecution has renewed its Application on the basis of the fresh evidence, the medical letter of Dr. Ahmed Mansour (Exhibit 1 on the Application).

[5] The Defendant initially opposed the admissibility of the letter on the prosecutor's Application, then decided that the letter was admissible, but of limited weight.

Discussion

[6] I have heard submissions from both parties.

[7] The prosecution relies upon the Ontario Court of Appeal decision in R. v. Cameron, [2006] O.J. No. 1928 to support the proposition that while cross-examination is generally a fundamental component of full answer and defence, "the right to cross-examine a witness, however, is not absolute or limitless." In a similar situation to the one before me, an expert witness became too ill to continue cross-examination and the learned trial judge erred in excluding the entirety of the witness' evidence and refusing another witness to testify.

[8] Counsel for the Defendant argues that at the very least, the Defendant ought to be given a chance to cross-examine the psychiatrist, Dr. Mansour, in order to determine his suitability to provide a medical opinion, before the Application can be decided. Moreover, the Defendant opposes the Application on the basis that permitting the prosecution to terminate the preliminary hearing at this stage undermines the discovery function. As well, principles of fundamental fairness and s. 540(1)(a) require cross-examination of all witnesses called by the prosecutor.

[9] It should first be understood that my original decision has not precluded me from revisiting the matter. Initially, there was limited information about the medical issue that was at play, and it was thought that an adjournment may restore the witness to a position from which she could continue to testify. Indeed, my ruling specifically stated:

In my view, it would be unfair to require the Defendant to make tactical decisions about the calling of evidence or the making of submissions on committal prior to completing its cross-examination of a Crown witness, where the witness is not otherwise unavailable [emphasis now added].

[10] The situation has now changed because there is more information about the health of the witness which was not before the court initially. Now, we have the report from "the clinical director of Consultation Liaison Services at Brampton Civic Hospital," who is also "the leading psychiatrist of DaVinci Project Treatment at William Osler Health System, Brampton Civic Hospital."

[11] Dr. Mansour's letter references the patient, M.G., and the issue for which the letter is being written, by heading the medical opinion "Subject: Incapable to testify in court." Within the letter, the doctor diagnoses M.G. as including the following:

1. Axis I: Posttraumatic stress disorder, severe type. Mood disorder, not otherwise specified with the consideration of ruling out bipolar disorder type 2.

2. Axis II: Borderline personality disorder (not very bad).

3. Axis III: Medical history: The patient sustained significant injuries during the accident she had on September 6, 2017, where she was in a coma for a period and she was treated at Sunnybrook Hospital.

[12] Under the heading "Recommendation based on the above assessment includes the following" the psychiatrist writes:

Given the fact that the patient has not attended any treatment for her ongoing posttraumatic stress disorder that will make it very difficult for her to go through this experience. There was clear evidence that she re-experienced the PTSD Symptomatology when attended the court yesterday for testifying, which is related to the accident she had in Sep 2017. So, I would recommend that Ms. [M.G.] should not be allowed and should avoid having to testify, as that can make her psychiatric condition much worse.

In addition to what I Have said above, Ms. [M.] had multiple admissions to Mental Health inpatient unit because of her borderline personality disorder and mood disorder that can jeopardize her mental health and makes her posttraumatic stress disorder even worse and there will be a chance that the patient may engage in self-harm behavior, that she has been stable for a while now.

The letter concludes, "So myself as an expert and her treating psychiatrist, I would not recommend that she should be allowed to testify at court."

[13] I have considered the submissions of counsel, the cases referred to and the medical letter.

[14] While at first blush, the request to have the psychiatrist attend to be cross-examined seems reasonable, in this case, it is unnecessary. The medical opinion is thorough, the opinion is timely, and it is derived from someone who is obviously qualified to provide the opinion, but also uniquely qualified to consider his patient's health as someone who has seen M.G. prior to the motor vehicle collision and who first saw the witness "many years" prior.

[15] Counsel for the Defendant submitted that she would want to see the doctor's C.V. and to have a chance to cross-examine the psychiatrist to determine if he could give the opinion he provided. Medically speaking, as a licensed medical doctor and a staff psychiatrist at a local hospital, he is obviously well qualified to give an opinion about the current diagnosis of his patient and her well-being, firstly, after she had begun to testify, and secondly, before she may have to testify again. Considering the health of a patient and what would improve or exacerbate their medical condition is exactly what a doctor is trained and obligated to determine.

[16] If I were considering the admissibility of a psychiatrist's opinion, in the circumstance where objection was taken to the qualification of the witness, a voir dire would be held for that purpose. However, the medical opinion provided does not assist me as the trier of inference, nor is the opinion being adduced for some evidentiary purpose related to the determination of [2] the preliminary hearing. Rather, the opinion relates to the viability of having a witness continue to testify.

[17] In this circumstance, while it may be desirable to hear the witness give the opinion under oath and subject to cross-examination, it is not necessary. There was no issue raised that the medical letter was not genuine, nor that the doctor is not properly qualified in this province. There is simply no need, when it was obvious to everyone on the last occasion that the witness was experiencing some medical distress (she complained of chest pains and an inability to breathe) and a letter has been produced from her treating psychiatrist, the substance of which is not challenged, to require the doctor to testify.

[18] The real issue is whether or not M.G. should continue to be cross-examined, and how to continue the Defendant's preliminary inquiry.

[19] It also helps to remember the context within which this Application was brought. The prosecution called M.G. and she testified in chief from approximately 10:15 am until 10:45 am and then in cross-examination from 10:45 am until 11:05 am and then again from 11:35 am to 11:55 am, before she was unable to continue. In fact, at the point when M.G. began to express that she was having chest pains, she had begun to be cross-examined about her evidence that the Defendant was texting continuously while driving.

[20] As well, two other civilian witnesses testified completely, as did the investigating police officer. This is not a case where the Defendant has been completely deprived of any opportunity to cross-examine M.G., nor is it a case, where the committal to stand trial rests exclusively on M.G.'s evidence.

[21] That said, I have also considered that it is somewhat unsatisfactory that a prosecution witness, indeed the main one, is no longer available to complete her testimony during the preliminary hearing.

[22] I have also considered the result and the reasoning in Cameron:

The right to cross-examine a witness, however, is not absolute or limitless. The seminal authority in this area is R. v. Hart (1999), 1999 NSCA 45, 135 C.C.C. (3d) 377 (N.S.C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 109. The accused in Hart was convicted of sexually assaulting and touching for a sexual purpose two young boys. One complainant, who was 12 years old at the time of trial, became unresponsive during questions posed in cross-examination. Based on his unresponsiveness, the defence sought a judicial stay or a directed verdict of acquittal. The trial judge declined to grant this relief, and this decision was upheld on appeal.

Writing for the Hart court, Cromwell J.A. carefully reviewed relevant English, American and Canadian authorities, and emphasized that where there has been incomplete cross-examination of a witness, there is no dispositive test in determining whether an accused has been deprived of the right to make full answer and defence or whether an accused's trial has become unfair. Nevertheless, he provided guidance for trial judges and set out three relevant considerations in arriving at this determination, namely (1) the reasons for the witness' unresponsiveness, (2) the impact of the witness' unresponsiveness, and (3) possible ameliorative action. Cromwell J.A. described relevant matters under these three broad headings and cautioned that his comments with respect to each category were neither exhaustive nor definitive. Ultimately, whether a case against an accused may proceed following an incomplete cross-examination of a witness falls within the trial judge's discretion. In the view of Cromwell J.A. this discretion should be exercised with a view to ensuring both fairness to the accused and the pursuit of truth. To this I would add that the discretion should also be exercised with a similar view toward the Crown. This will require the trial judge to consider many factors in balancing trial fairness from the perspective of the Crown and the accused. [3]

Bearing in mind that Cameron was a trial decision, I find that at this stage, there is even less prejudice to the Defendant if the Application is granted.

[23] Applying the analysis of Cromwell J.A., as he then was, in consideration of the reason for the unavailability of the witness to continue cross-examination, I have taken into account the following:

i. M.G. has testified completely in chief and partially under cross-examination;

ii. No issue has been taken that the witness is not malingering, disingenuous, or does not suffer post-traumatic stress disorder; and

iii. The medical opinion is unambiguous: if the witness testifies, her psychiatric condition may become "much worse," and "there will be a chance that the patient may engage in self-harm behaviour."

[24] The impact of a decision to permit the prosecution to rest its case at the preliminary hearing is two-fold. First, the prosecutor assumes the risk that the incomplete evidence will not meet the test for committal, or more likely in this case, the evidence of the main prosecution witness will forever be unavailable in the same form (under oath and subject to contemporaneous cross-examination) to the ultimate trier of fact. Second, the Defendant could be committed to stand trial on an incomplete evidentiary record. This impact, while significant and unenviable is not absolute and determinative.

[25] I am not the trial judge. The Defendant's guilt does not necessarily flow from my decision. A trial justice may well be asked to determine whether a prior statement to the police, the incomplete preliminary hearing testimony, or both are admissible in the Defendant's trial. That decision has far greater significance to the Defendant's ability to defend these charges than mine. In fact, there is a constitutional dimension to that decision that does not present here.

[26] It should also be remembered that a more complete cross-examination would not have any substantive effect on the ultimate outcome of the preliminary hearing, assuming the test for committal has otherwise been met. The prosecution is right to note that even if the best case scenario for the Defendant is assumed, the outcome is not likely to be affected.

[27] If for instance, the witness completely reversed her earlier testimony under a more complete cross-examination, as the preliminary hearing justice I must consider the most favourable inferences for the prosecution. Here, there is direct testimony that the Defendant was deliberately not paying attention and he made no efforts to stop while he approached a clearly marked intersection governed by a 4-way stop sign. If this evidence were undermined I would be left with two competing versions of events. That situation must be resolved by the eventual trier of fact: see R. v. Walizadeh, [2002] O.J. No. 2833 (S.C.J.), aff'd: [2002] O.J. No. 5451 (C.A.). Given my limited jurisdiction, assuming the test for committal is otherwise made out, I would be compelled to order the Defendant to stand trial, regardless of the outcome of any further cross-examination.

[28] What possible ameliorative action can be taken to prevent irremediable prejudice to the Defendant? There are several possible outcomes of a decision to grant the Application. Not the least of which is that a reviewing court may find a possible loss of jurisdiction. A challenge to my decision is always possible.

[29] Also, if the health of the witness improves, there is a possibility that the witness could be made available for a discovery of her evidence, prior to trial. This was suggested by the prosecutor on the last occasion, and there is no reason to expect rescission of that offer. It may well be the case that in a different environment, the witness would be in a position to continue to answer questions about her observations and testimony.

[30] Lastly, it is not a foregone conclusion that the prosecutor would seek to admit nor that such Application would be granted to adduce the witness' prior evidence if she were medically unfit to testify at the Defendant's trial. In the end, that Application must be fully argued and determined on the merits that exist at that time.

Conclusion

[31] Given that my role and the Defendant's jeopardy are limited, the fact that there is no perfect remedy to this situation is not determinative. On the whole, I am satisfied on a balance of probabilities that it is appropriate to permit the prosecution to end the testimony of M.G. at this time.

Released: 29 November 2018

Justice G. Paul Renwick

Footnotes

[1] The prosecutor on that day was not Mr. Henderson.

[2] These words were inadvertently omitted when the decision was read out in court.

[3] Cameron, supra, at paras. 21-22.