WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2023 04 18 COURT FILE No.: 21-45000561 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Martin NGIGI

Before: Justice Cidalia C. G. Faria

Heard on: March 7, 2023

Written Reasons for Ruling on Cross-Examination of Affiant in Mohan Voir Dire in O’Connor Application by Counsel for Complainant released on April 18, 2023

Counsel: Christopher Tsiligiris........................................................................ Counsel for the Crown Laura Remigio.................................................... Counsel for the defendant Martin NGIGI Kelley Bryan.......................................................................... Counsel for complainant J. G.

Faria J.:

I. OVERVIEW

[1] Martin Ngigi is charged with Assault and Assault Bodily Harm for allegedly breaking the right arm of 9-year-old boy named J.G. while his mother briefly left the house leaving him in the care of Mr. Ngigi. J.G. lives with Muscular Dystrophy and is wheelchair-bound. Before me is an amended third-party records O’Connor [1] application made by the Applicant Defendant requesting the production of medical and school records pertaining to the muscular dystrophy diagnosis of the child complainant and medical and school records of any cognitive impairment. As required, Counsel for the child complainant was present at the in-camera O’Connor application.

[2] At Stage 1 of the O’Connor Application, in addition to other materials, the Applicant filed an affidavit authored by Dr. Berger, an Assistant Professor and physician. The Applicant applied to qualify the doctor as an expert in the areas of neuromuscular conditions, emergency medicine and trauma, and cognitive function.

[3] The parties embarked upon a Mohan [2] voir dire to determine whether Dr. Berger is a qualified expert on March 7, 2023. The Respondent Crown challenged Dr. Berger's qualifications.

[4] Upon completion of the Crown’s cross-examination, Counsel for the complainant submitted she wanted to cross-examine the doctor. The Applicant opposed the cross-examination of its proposed expert by Counsel for the complainant in both the Mohan voir dire and the O’Connor application.

[5] All parties made submissions.

[6] On March 9, 2023, the court provided an oral ruling permitting Counsel for the complainant to cross-examine the Applicant’s proposed expert in both the Mohan voir dire and the O’Connor application, with written reasons to follow. These are my written reasons.

II. ISSUE

[7] The two issues to be determined are:

i. Is Counsel for the complainant permitted to cross-examine a proffered expert on his affidavit in a Mohan voir dire of his qualifications in an O’Connor application?

ii. Is Counsel for the complainant permitted to cross-examine the expert, should he be qualified, on the O’Connor application?

III. POSITION of the PARTIES

[8] The Applicant submitted Counsel for the complainant has no standing to cross-examine the affiant on the Mohan voir dire or on the O’Connor application proper. He argued Counsel for the Complainant is not a full party to the O’Connor proceeding and is only entitled to notice, attendance, and submissions.

[9] In support of his position, the Applicant submitted the court should be guided by R. v. J.J. [3] and similarly limit the role of Counsel for the complaint on this O’Connor.

[10] Counsel for the complainant submitted the language in O’Connor has always permitted the cross-examination of a proposed expert in third-party applications as the procedure stems from common law jurisdiction and is not governed or limited by statute. She submitted she should be permitted to cross-examine the affiant in the Mohan voir dire and the O’Connor application and has done so for decades.

[11] Counsel for the complainant argued that J.J., which reviewed a statutory scheme, does not and should not apply to this common law procedure.

[12] The Respondent Crown agreed with the position of Counsel for the complainant.

IV. LEGAL PRINCIPLES & ANALYSIS

[13] In 1995, the Supreme Court of Canada established a common law procedure and a two-stage legal test to determine whether to order the production of records in the possession of third parties sought to be obtained by the Defence. The procedure applies to non-sexual offences. At the first stage, the court determines if the Applicant has met its onus that such records are “likely relevant” to an issue in the proceedings. If the records are “likely relevant”, the Court weighs the positive and negative consequences of production to determine whether and to what extent the Court should order production to ensure the Applicant’s right to full answer and defence is protected. [4]

[14] Production of records is secured by a subpoena with notice to the holder of the record and parties with an interest in the confidentiality of the record. This formal, written application must set out the specific grounds for production. The Applicant must provide notice to parties with a privacy interest and support the application with appropriate affidavit evidence. [5]

[15] Notice infers entitlement to attend the application hearing. Affidavit evidence implies the affiant must be presented for cross-examination.

[16] The Applicant does not dispute that such attendance includes participation. However, the Applicant submits that participation is limited to submissions and does not include cross-examination of witnesses.

[17] No such limitation is articulated in O’Connor in relation to the participation of the party with a privacy interest in the records sought by the Applicant.

[18] Surprisingly, despite the age of the O’Connor regime, all parties appear correct when they submit no case has decided whether Counsel for the complainant is permitted to cross-examine an affiant in such an application. Certainly, there appears to be no case that decides whether the Counsel for the complainant is permitted to cross-examine a proposed expert on his qualifications in a Mohan voir dire, within an O’Connor application.

[19] In R. v. Mills [6], the Supreme Court upheld the constitutionality of ss. 278.1 to 278.91 of the Criminal Code, which established a production regime for records in the possession of the Crown sought by the Defence in which a complainant of a sexual offence has a privacy interest.

[20] In R. v. J.J. [7], the Supreme Court upheld the constitutionality of ss. 278.92 to 278.94 of the Criminal Code, which established a new procedure designed to protect the interests of sexual assault complainants in their private records that are in the possession or control of the accused who seeks to introduce these records at a hearing in their criminal proceeding. Also upheld were the procedural elements of these provisions that apply to s. 276 applications governing the admissibility of evidence of other sexual activity or a complainant’s prior sexual activity or history, which the Court addressed in Darrach.

[21] When the Court in J.J. examined the statutory regime for records in the possession of the accused, the court did not modify the common law O’Connor procedure to produce records in the possession of third parties. Rather the Supreme Court confirmed Mills and Darrach, which confirmed the validity of the O’Connor regime.

[22] The Court in J.J. referred to O’Connor as follows:

• At paragraph 121, regarding the right to make full answer and defence, the Court affirmed that the right to a fair trial should be considered not only from the perspective of the accused, but also from that of the complainant, the community, and the criminal justice system at large (O’Connor at para. 193-94).

• At paragraph 142, regarding the protection of complainants’ privacy rights, the Court required a preventative approach that guards complainants’ reasonable expectations of privacy at the point of admission. The Court states “This Court observed in O’Connor, once privacy is invaded, ‘it can seldom be regained’ (O’Connor at paragraph 119)”.

• At paragraph 184, the Court stated that the right to a fair trial does not guarantee the “most advantageous trial possible from the accused’s perspective” (O’Connor at para. 193), and that justice requires the consideration of the privacy interest of others involved in the justice system (O’Connor, at paras. 193-194). Even if the ideal from the accused’s perspective is to cross-examine complainants on “every scintilla” of information in an attempt to discredit or shake them, the Charter guarantees no such right (O’Connor, at paras. 193-194).

[23] Moreover, several considerations relevant in J.J. are not present in the O’Connor proceeding before me, such as:

i. The affiant sought to be cross-examined is not the accused Applicant but a proposed expert whose duty is to the court. The adversarial tension and cross-examination strategic concerns for trial fairness are not the same.

ii. The records in question are not in the possession of the accused Applicant but a third party.

iii. There is no dispute the complainant has a reasonable expectation of privacy in the records held by the third party. They are medical and school records, recognized as attracting high expectations of privacy.

iv. The policy considerations that underly the jurisprudential and legislative development of the statutory regimes upheld in J.J., Darrach [8] and Mills regarding ss 278.92 to s. 278.94, s. 276, and s. 278.3 respectively specifically addressed sexual assault offences, the reporting of sexual assaults, the vulnerability, dignity and equality rights of sexual assault complainants, and the stereotypes and myths to be eliminated in those contexts. This is not the situation in the case before me.

v. The ultimate issue to be determined is production, not admissibility.

[24] The source of the applicable procedure before me, is a common law one, not a statutory one, as was the case in Mills, Darrach, and J.J. Those cases also do not address the same type of offences as the ones before me.

[25] As a result, the cross-examination limitations in the legislative schemes and considered in those cases do not apply to the common law O’Connor procedure.

[26] In Mohan, the Supreme Court articulated the following criteria to determine the admission of expert evidence:

i. Relevance

ii. Necessity in assisting the trier of fact

iii. The absence of any exclusionary rule and

iv. A properly qualified expert. [9]

[27] A properly qualified expert has acquired special or particular knowledge through study or experience in respect of the matters on which he, she, or they, undertakes to testify. [10] This includes the requirement that the expert be independent and impartial. [11]

[28] The obligations and duties of an expert are to advise and assist the court and not to represent or advocate for the party that called the expert as a witness, regardless that such party is retaining the expert. The expert is to provide evidence that is fair, objective and non-partisan. Finally, the expert is to provide opinions only on matters within their expertise.

[29] In this case, the expertise of Dr. Berger in the areas proffered as well as whether the criterion of relevance and necessity are met are at issue in the Mohan voir dire.

[30] The cross-examination of Dr. Berger on his qualifications and expertise is essential to the court’s process and the determination of these issues.

[31] Given:

i. the medical nature of the evidence to be provided by the proffered affiant expert;

ii. that the purpose of an expert is to assist the court;

iii. the expert is to have no invested interest in the outcome of the proceeding;

iv. and the expert is to be impartial and objective,

the cross-examination of Dr. Berger from the perspective and by Counsel for the complainant may provide the court with relevant evidence to consider in its determination on both the Mohan voir dire and the O’Connor application.

[32] With no established jurisprudential, legislative or policy bar, I see no disadvantage or prejudicial impact on the Applicant if Counsel for the complainant is permitted to cross-examine the proposed expert on his qualifications and opinion.

V. CONCLUSION

[33] Both issues are answered in the affirmative and Counsel for the complainant is permitted to cross-examine the proposed expert in the Mohan voir dire on the O’Connor application.

Released: April 18, 2023 Signed: Justice Cidalia C. G. Faria

[1] R. v. O’Connor, [1995] 4 SCR 411 [O’Connor].

[2] R. v. Mohan, [1992] 2 SCR 9 [Mohan].

[3] R. v. J.J., 2022 SCC 28 [J.J.].

[4] O’Connor, supra note 1, at paras 21, 137.

[5] Ibid paras 20, 135-137.

[6] R. v. Mills, [1999] 3 SCR 668 [Mills].

[7] J.J., supra note 3.

[8] R. v. Darrach, 2000 SCC 46 [Darrach].

[9] Mohan, supra note 2, at para. 17.

[10] Ibid at para. 27.

[11] White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 [White Burgess].