Court File and Parties
Date: February 26, 2020
Court File No.: 999 18 2260 00
Ontario Court of Justice Provincial Offences Court, Whitby, ON
Regina v. Adris Azimi
Decision on Admissibility of Expert Opinion Evidence
Voir dire held and submissions heard: February 24, 2020
Decision released: February 26, 2020
By Her Worship: Justice of the Peace Jane Moffatt
Counsel:
- Mr. Boodasingh, prosecutor
- Ms. V. Hawkes, legal representative for the defendant
Facts and Issues
[1] It is alleged that the defendant, Adris Azimi, was the driver of a motor vehicle and struck a 29 year old pedestrian who tragically suffered fatal injuries. Some 5 ½ months later, Mr. Azimi was charged under Part III of the Provincial Offences Act with the offence of speeding, at the amended rate of speed of 76km/hr in a 60km/hr zone, contrary to s.128 of the Highway Traffic Act.
[2] The prosecution intends to attempt to prove the speed of the defendant's vehicle by adducing evidence of the opinion of a police accident reconstructionist. Officer Lee of the Durham Regional Police Service is being proffered as an expert in relation to collision reconstruction and vehicle speed analysis. The officer's curriculum vitae has been marked as an exhibit on the voir dire and he has been examined in chief and extensively cross-examined by the defence.
[3] In issue is the admissibility of his expert opinion regarding the rate of speed of the defendant's motor vehicle at the time of impact with the pedestrian. In this case, it is not argued that the police officer's evidence as an expert does not meet the usual four preconditions to admissibility set out by the Supreme Court of Canada in R v Mohan (1994) 2 SCR 9.
[4] Rather, the defence submits that the evidence is not admissible for two over-arching reasons. First, it is argued that the opinion is based on a methodology that is novel scientific theory or technique such that the prosecution must establish that the science used meets a minimum threshold of accuracy and reliability. It is argued that they have failed to do so.
[5] By illustration, the defence argues that the courts have accepted, as a general principle, that radar or laser technology is capable of accurately measuring the rate of speed of a motor vehicle, but there has been no such acceptance in relation to the use of the "Searle method" of calculating speed in an accident reconstruction context relating to a speeding offence.
[6] In the further alternative, the defence suggests that even if I find that the methodology used is not novel, the proposed expert is using the methodology for a novel purpose – namely, to prove speed in relation to the offence of speeding, as opposed to speed being relevant to some aspect of another offence, such as careless driving.
[7] In addition, the defence submits that in any event, the second step of the analysis requires the court to consider its gatekeeping function and I should exercise my discretion and not admit the proposed opinion evidence because the cost to the trial process outweighs the benefit of receiving the evidence.
[8] The prosecution has the onus, on a balance of probabilities, to satisfy the court that the opinion evidence is admissible. The defence did not call evidence on the voir dire. I have received extensive submissions and a number of case authorities from the parties. While I may not refer specifically to all of the cases, I have nonetheless reviewed and considered them. This is my decision.
The Law
[9] The Supreme Court of Canada in R v Mohan (1994) 2 SCR 9 set out a four-part test with respect to threshold admissibility of expert opinion evidence. Admission of expert evidence depends on the application of the following criteria:
(a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert.
[10] In Mohan, the Supreme Court of Canada said that a cost benefit analysis is also a consideration when assessing admissibility of expert evidence, meaning "whether its value is worth what it costs". Costs in this context means that evidence that is otherwise logically relevant may be excluded, should its probative value be overborne by its prejudicial effect. If it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability.
[11] At paragraph 25 in Mohan, the court ruled:
"In summary, expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle."
[12] In White Burgess Langille Inman v Abbott and Haliburton Co. 2015 SCC 23, the Supreme Court of Canada affirmed that the reliability of opinion evidence based on novel or contested science or science used for a novel purpose, is a threshold admissibility issue (also see R v (L-J) 2000 SCC 51 and R v Trochym 2007 SCC 6). Under this test, a party wishing to rely on novel scientific evidence must first establish that the underlying science is sufficiently reliable to be admitted in a court of law. This is particularly important where an accused person's liberty is at stake.
[13] The Ontario Court of Appeal, in its decision of R v Abbey 2009 ONCA 624, suggested a two-step process for determining admissibility. The first step involves a determination of whether the preconditions to admissibility have been met (the Mohan test). The second step is a consideration of the court's function as a "gatekeeper". This involves the discretionary authority of the court to determine whether the expert evidence 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. The trial judge must identify and weigh competing considerations to decide whether, on balance, those considerations favour the admissibility of the evidence.
[14] At paragraph 82 of the Abbey decision, the court considered the meaning of relevance in the evidentiary context:
"Relevance can have two very different meanings in the evidentiary context. Relevance can refer to logical relevance, a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence….Given this meaning, relevance sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rules….Relevance can also refer to a requirement that evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission. This meaning of relevance is described as legal relevance and involves a limited weighing of the costs and benefits associated with admitting evidence that is undoubtedly logically relevant."
[15] At paragraph 87 of Abbey, the court said:
"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."
Analysis
[16] Although all of the evidence on the voir dire is not reproduced here, all of the evidence adduced or elicited from Officer Lee has been considered as well as the exhibits on the voir dire.
[17] There is no challenge to Officer Lee's general expertise as an accident reconstructionist and his training in determining the speed of motor vehicles through the application of various accident reconstruction techniques. He has been with the Durham Regional Police Service for 19 years and has been an accident reconstructionist for the last 10 years. His curriculum vitae attests to his specialized training from 2003 through 2019 on various aspects of accident reconstruction, including pedestrian collision investigations. Further, he has been declared and accepted as an expert in the field of collision reconstruction twice previously. I therefore accept that he is a properly qualified expert in accident reconstruction and vehicle speed analysis.
[18] It was suggested that there is no evidence that Officer Lee is an expert in relation to the Searle methodology specifically, therefore the court should not admit the evidence because it is not reliable. I disagree. The prosecution is not seeking to qualify the officer as an expert in the Searle method. Rather, his expertise is being proposed in the area of accident reconstruction and vehicle speed analysis generally. On that basis, I need not consider, at the admissibility stage, the reliability of the officer's anticipated evidence in relation to the Searle method specifically.
[19] It is self-evident that receipt of expert testimony regarding speed of a motor vehicle based upon accident reconstruction evidence goes beyond the knowledge of the court and is therefore necessary to assist the court.
[20] The proposed expert opinion of the rate of speed driven by the defendant is logically relevant to the offence of speeding and is sufficiently probative to weigh in favour of its admission.
[21] Novel science sought to be adduced through an expert with respect to some of the cases referred to herein relate to expert opinion regarding character traits fitting the psychological profile of perpetrators of sexual assault offences (Mohan), sociological evidence relating to certain tattoos (Abbey), psychiatric evidence regarding probability a sexual deviant inflicted abuse (J L-J) and post-hypnosis evidence (Trochym). In each of these cases, the accused's liberty was at stake. In contrast, the opinion evidence in the matter before me relates to a type of mathematical methodology utilized to come to an objective conclusion relating to speed of a vehicle in relation to a regulatory offence in which the defendant's liberty is not at risk.
[22] The offence of speeding is an absolute liability offence. The prosecution must prove, beyond a reasonable doubt, that the defendant drove his motor vehicle on a highway over the speed limit. The actus reus of the offence is established should a vehicle be driven on a highway over the speed limit, no matter if it is driven, for example, 5km/hr over the limit or 16km/hr over the limit. If I rule that the offence of speeding has been proven beyond a reasonable doubt, the defendant must be convicted (subject to consideration of the limited defences that may be proffered in relation to an absolute liability offence). The court would then determine at what rate of speed the defendant exceeded the speed limit, in order to impose the correct financial penalty.
[23] A defendant convicted of the offence of speeding is subject to the penalties set out in s128(14) of the Highway Traffic Act, which provide for a monetary penalty by way of a fine calculated based upon the rate of speed over the speed limit the vehicle is driven. In this case, should the defendant be found guilty of speeding 16km over the speed limit, he would be subject to a fine in the amount of $48.00 to which costs and victim fine surcharges would be added administratively. Sentencing in relation to speeding is not an exercise of judicial discretion applying the usual sentencing principles. Rather, the only penalty the court may impose for the offence of speeding is the penalty provided by statute (see R v Winlow 2009 ONCA 643). The liberty of a defendant charged with speeding is therefore never at risk (see R v Polewsky).
[24] I accept as a general principle and take judicial notice that speed may be proven by way of many different means or combination of means, including by receipt of expert opinion based upon the application of various mathematical methodologies to the facts gathered in relation to a motor vehicle collision investigation.
[25] In my view, accident reconstruction methodologies, broadly speaking, are not novel scientific evidence such that they attract special scrutiny as a threshold admissibility issue. Certainly, the reliability and weight I put on such evidence will eventually be determined, should I admit the expert opinion, following receipt of evidence in chief and following challenges to the officer's conclusions.
[26] The defence argues that the specific scientific methodology used by the officer – the Searle method – is novel science because the officer has never testified to its use in a court before and there are no known cases (to the knowledge of the officer and the defence paralegal) in which the court has accepted the Searle method as being accurate and reliable. Further, the officer was unaware as to any studies or tests used to measure the results against other methods of determining speed, which might confirm the reliability of the Searle method. Further, there is no evidence that it is accepted science, therefore I must conclude that it is novel science requiring special scrutiny as a threshold admissibility issue. The prosecution asserts that this is not novel science and it is premature for the court to assess reliability of the evidence in the absence of receipt of the evidence and full cross-examination of that evidence.
[27] The Crown has directed me to the reported decision of R v Beyer 2011 ABPC 198. While not binding, it serves as an example of a court that considered accident reconstruction evidence utilizing the Searle methodology. Further, through cross-examination, it was established that the Searle method has been in use at least since before 2005.
[28] I have heard there are up to 15 different methods of determining speed of a vehicle involved in a motor vehicle/pedestrian collision. The officer used the Searle method because the preconditions for its use were met and he had been trained and believes it to be the most commonly used method in such situations, recognized in the field. He said that the method is considered accurate within a 2-3 km margin of error. The rate of speed he will allege the defendant was travelling at point of impact has been calculated using the low end of the range of margin of error.
[29] It became clear in cross-examination that certain potential errors in the factual underpinning used by the officer could affect the conclusion reached. For example, the officer used a weight of 130 pounds for the victim. If the victim weighed more than 130 pounds, the calculation of rate of speed of the vehicle would be higher. Such an error would therefore benefit the defendant, rather than prejudice the defendant. It was also established that if the officer miscalculated the resting position of the victim by one meter, for example, the net effect on his conclusion regarding speed would be 2 or 3 kms higher or lower than the alleged speed of 76km/hr. Certainly, I accept that the facts utilized within any formula need to be substantially correct for the result to be reliable. The factual underpinnings are issues which could be challenged during cross-examination of the proposed expert should his evidence be admitted.
[30] In my view, the various methods that could be used in an accident reconstruction context are more aptly characterized as mathematical methodologies utilized to reach a conclusion regarding speed within a certain margin of error. Put simply, this is math, not science. In the circumstances of this speeding offence, I do not accept that the methodology used by the proposed accident reconstruction expert is novel science such that it attracts special scrutiny at the admissibility stage regarding the accuracy and reliability of the method.
[31] Accuracy and reliability of the evidence relating to speed will nonetheless always remain an issue to be assessed following receipt of all of the evidence in a speeding trial. This is so whether the method to determine speed is by way of visual observations of a witness or witnesses, use of speed measuring devices such as radar or laser, automated speed enforcement methods or by way of inferences drawn from physical evidence at the scene of a collision including conclusions reached by an expert accident reconstructionist.
[32] The defence argues that if I do not consider the Searle methodology to be novel science, it should nonetheless not be admitted because it is being used for a novel purpose. Even if I accept that this method is used more commonly to prove speed as part of the evidence of another charge such as careless driving, the fact that the charge before me is a speeding offence does not make the purpose for its use novel. I have received evidence that the Searle method is specifically used to determine the rate of speed of a motor vehicle involved in a collision with a pedestrian. The issue of speed is exactly the issue before me.
[33] It is not unusual for the prosecution to adduce expert opinion from an accident reconstructionist in relation to a Highway Traffic Act offence laid following a motor vehicle collision. Having said that, I accept that it is certainly unusual for the prosecution to attempt to prove a speeding charge through expert opinion accident reconstruction evidence alone. However, the purpose for which the evidence is being adduced does not become novel (as that term is used in the authorities relied upon by the defence) based upon the fact that the charge is that of speeding as opposed to some other regulatory or criminal offence.
[34] In conclusion, I am not persuaded that the Searle method represents novel science such that it attracts special scrutiny with respect to reliability of the method at the admissibility stage. I also do not accept that the method is being used for a novel purpose.
[35] As stated earlier, the defence submits that in any event, the second step of the analysis requires the court to consider its gatekeeping function and I should exercise my discretion and not admit the proposed opinion evidence because the cost to the trial process outweighs the benefit of receiving the evidence.
[36] I do not share the concern of the defence that admission of such evidence in a speeding trial may open a flood gate, so to speak, resulting in excessive consumption of time required to prove speeding charges. The potential harm to the trial process for speeding offences generally is far too remote to have any air of reality.
[37] In relation to this specific prosecution, the admissibility voir dire alone has taken a full day of trial time. The day devoted to the admissibility voir dire is already day six of this trial. At this point, my decision regarding admission of the expert evidence will either continue this already lengthy trial or put an end to it. The prosecution and defence have extended an extraordinary amount of resources into what is a very minor speeding charge. While the offence itself is minor and common place, the incident which gives rise to the charge is not. In all of the circumstances, admission of the expert evidence will not unduly lengthen the time remaining to complete this trial, particularly given the extent of cross-examination of the proposed expert already conducted (which constitutes evidence with respect to the trial itself, pursuant to my earlier ruling).
[38] The anticipated evidence is not so complex that there is a risk it will cause confusion, especially as this is a matter tried before a single judicial officer as opposed to a jury. Admission of the proposed evidence does not usurp the role of the trier of fact to make findings of fact and to determine whether the offence has been proven to the standard of beyond a reasonable doubt.
[39] I find that the expert evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm that may flow from the admission of the expert evidence. The evidence is highly probative, is not novel science, and is capable of being tested through cross-examination and/or reply evidence thus preserving trial fairness. Any potential harm is not outweighed by the probative value of receiving the evidence.
Conclusion
[40] For all of these reasons, the prosecution is permitted to adduce expert opinion evidence regarding collision reconstruction and vehicle speed analysis through Officer Lee.