ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-40000751-0000
DATE: 20120305

BETWEEN :

HER MAJESTY THE QUEEN Applicant
– and –
JERMAINE GAGER and COREY SMELIE Respondents

Mr. R. Nathanson and Ms. M. Misener, for the Crown
Mr. S. Fishbayn and Mr. C. Gill, for Jermaine Gager

Mr. D. Heath and Mr. J. Giuliana, for Corey Smelie

HEARD: February 16, 17, 21, 22, 23, 24, 27 & 28, 2012

DEFENCE APPLICATION RE EXPERT WITNESS

REASONS FOR DECISION

Clark J.:

OVERVIEW

[ 1 ] The accused are jointly charged that on September 22, 2008, they shot to death one Darnell Grant and did thereby commit First Degree Murder. The accused are said to be members of a street gang and the motive for the murder is said to be rivalry between their gang and another.

[ 2 ] The accused Gager applies to have one Dr. Mark Totten qualified as an expert in the field of street gangs.

[ 3 ] The co-accused, Smelie, initially indicated that he joined Mr. Fishbayn in the application, but, in final written submissions, modified that position, indicating instead that he does not oppose the application.

[ 4 ] On February 17, 2012, in a brief oral pronouncement, I allowed the application to have Dr. Totten declared an expert. I indicated at that time, that I would give reasons for that decision; these are those reasons.

[ 5 ] The second phase of the inquiry required by R. v. Abbey, 2009 ONCA 624, the so-called gatekeeper function, commenced on February 17 and proceeded in stages in order to inconvenience the jury as little as possible. Those discussions concluded on February 24. On February 28, at the outset of proceedings, I gave my ruling on the second phase and then gave counsel several hours to consider its implications. That afternoon, I heard further submissions and made some further comments aimed at clarifying certain implications of the ruling. The discussion was centered on what areas of Crown reply evidence Mr. Fishbayn might open up depending on the evidence he would see fit to lead from Dr. Totten. My initial reasons for decision respecting that second phase and the further adjustments to that ruling also follow.

TIMING OF THIS APPLICATION

[ 6 ] Before dealing with the merits of the application, I wish to discuss its timing.

[ 7 ] This trial commenced in November 2011 with a number of pre-trial applications. In one,[“the Backus application”] the Crown sought to have Detective Douglas Backus of the Toronto Police Service qualified as an expert in the field of Toronto street gangs. In written reasons released January 17, 2012, I allowed that application in part.

[ 8 ] On February 6, 2012, Mr. Fishbayn made it known for the first time that he would seek to bring the present application. When the court inquired why he had not brought this in a timely fashion along with the other pre-trial applications, and, more particularly, why he had not complied with s. 657.3 of the Criminal Code , Mr. Fishbayn indicated that the idea that it would be desirable in the interests of his client’s defence to bring such an application had only recently occurred to him. I do not accept that for the following reasons.

[ 9 ] First, the Crown has made it known since at least the time of the preliminary inquiry, nearly two years ago, that it would seek to call expert evidence to prove the motive it asserts, namely, gang rivalry. In response, the defence has, from the outset, taken strenuous objection to the proposed evidence on the basis that, in their view, the Crown’s witness (i) is not sufficiently qualified to be considered an expert, (ii) is biased, (iii) does not employ an “evidence-based” approach and (iv) as a consequence of the foregoing factors, holds opinions that are unsound. Despite these same arguments having been raised in at least one other case, and despite the trial judge in that case having agreed with many of the points counsel raised, the fact remains that Detective Backus was qualified to give expert evidence in that case: R. v. Sappleton, 2010 ONSC 5704. In those circumstances, it is inconceivable to me that even a marginally competent lawyer, much less someone of Mr. Fishbayn’s considerable experience and ability, would fail to at least consider that Backus might well be permitted to give expert evidence in this case and, accordingly, to consider as well whether, in that event, it would be advisable to seek to call one’s own expert to counter the Crown’s evidence.

[ 10 ] Second, in the course of the same conversation in which Mr. Fishbayn first raised the issue of calling a defence expert, mere minutes after indicating that the need for the defence expert had just crystallized, Mr. Fishbayn went on to say that he had been in contact with the proposed expert since October 2011. On February 24, once again Mr. Fishbayn indicated that he had been contemplating calling the witness since as early as last fall.

[ 11 ] Third, in the course of cross-examination by the Crown on the voir dire to determine whether he would be qualified to give expert evidence, Dr. Totten indicated that he had first been consulted Mr. Fishbayn about this case more than a year ago.

[ 12 ] While acknowledging that he failed to give proper notice, Mr. Fishbayn defends his actions by saying that, as distinct from the notice and the statement of qualifications the section requires the party to serve on the opposing party, he was not required to disclose the report itself until after the close of the Crown’s case. In light of the fact that he did, he contends that the Crown actually got an advantage to which it was not entitled. While that it is true, in my view it does little to make up for the difficulties the timing of this application has created for both the Crown and the court.

[ 13 ] Mr. Fishbayn explained in oral submissions that the salient date is not when he first contacted Dr. Totten, but, rather, when he made the decision to call him as a witness. I disagree.

[ 14 ] Understanding that Mr. Fishbayn was under no obligation to disclose the report of the witness until after the Crown had closed its case, I see no reason not to have raised the prospect that he might call the witness and several very good reasons why he ought to have done so. Moreover, both the statute and the Criminal Proceedings Rules obliged him to do so.

[ 15 ] I am at a loss to understand why nothing was said at the judicial pre-trial as to the potential for this application to be brought in the event that the Backus application was successful.

[ 16 ] I am even less able to comprehend why, on January 17, when the court released its reasons deciding the Backus application in favour of the Crown, counsel would not have made known that he was intending to bring this application, or, in the least, contemplating such an application. Indeed, there was a two week window of opportunity to deal with the matter then because the special jury panel for this case was not summoned to appear until January 26.

[ 17 ] One of the results of Mr. Fishbayn’s timing of this application has been that the Crown was placed in a very awkward position in terms of preparing to meet the application, which it vigorously opposed. Crown counsel had very little time to gather the materials referred to in the witness’ lengthy curriculum vitae with which to brief themselves to be in a position to decide whether to challenge the proffered evidence, and, should they choose to do so, to do the necessary preparation. As noted above, Mr. Fishbayn did not comply with the provisions of s. 657.3 . Therefore, to ameliorate what I considered to be the unfair disadvantage imposed on the prosecution by virtue of that failure, notwithstanding the section only requires that the party intending to call an expert provide notice and a copy of any report of the expert, using my trial management powers, I ordered Mr. Fishbayn to secure from the witness and provide to the Crown certain materials referred to in the witness’ curriculum vitae that it sought for purposes of preparing to conduct this voir dire : Regina v. Felderhof (2003), 2003 37346 (ON CA), 180 C.C.C. (3d) 498 (Ont. C.A.) at paras. 36-47 ; R. v. Snow (2004), 2004 34547 (ON CA), 73 O.R. (3d) 40 (C.A.), at para. 24 . I note, however, since the statute does not require the report to be forthcoming before the end of the Crown’s case, I did not order Mr. Fishbayn to produce the report to the Crown. That Mr. Fishbayn undertook to do of his own volition.

[ 18 ] Another result is that time has been lost from the trial proper. The jury had to be sent home for two full days while this matter was argued. That occurred at the same time as the court lost two days in the same week and the Monday of the following week due to a statutory holiday. In fairness, the loss of the other two days that week was unrelated to Mr. Fishbayn’ application. However, what Mr. Fishbayn’s timing meant in the final analysis was that the jury was sent home at the end of Monday, February 14 and did not resume hearing evidence until Tuesday, February 21.

[ 19 ] Having succeeded in his application on February 17, Mr. Fishbayn then wanted the court to adjourn from approximately February 24, when it was anticipated that the Crown would conclude its case until March 5, due to the unavailability of the witness by reason of competing professional obligations. I can only assume the witness’ unavailability, by virtue of prior commitment, was due to counsel having failed to bring the application in a timely fashion and, correspondingly, having failed to ask the witness in a timely fashion to reserve the appropriate dates for this case.

[ 20 ] When faced with Mr. Fishbayn’s indication that the trial would have to be adjourned to accommodate his witness’ competing obligations, in light of Mr. Fishbayn having indicated on several earlier occasions in the course of the trial that he might very well call his client to testify, I suggested that we might fill some of the time during which the witness was unavailable, if Mr. Fishbayn were to call his client before calling Dr. Totten. Indeed, I suggested that, quite apart from the question of the witness’ unavailability, it might make sense to call Mr. Gager first for the reason that the admissibility of at least one aspect of the evidence Mr. Fishbayn proposed to have Dr. Totten give might well depend on whether Mr. Gager, testified and, if so, what he might say. Mr. Fishbayn was adamant, however, that this suggestion was unsatisfactory and, despite having created the difficulty, was unwilling to even consider departing from his preferred order of calling witnesses.

[ 21 ] When I indicated that I was extremely reluctant to adjourn the matter for the period of time Mr. Fishbayn envisioned, because of the potential for prejudice to the other parties that might arise by virtue of such a further lengthy adjournment, it was eventually agreed that the witness would interrupt his other commitment to accommodate the court.

[ 22 ] Dr. Totten’s scheduling problems ultimately proved to be moot because the court was required to send the jury home on February 23, when the Crown had called all its witnesses save for Detective Backus. The court could not proceed with Detective Backus’ evidence because, as I will explain below, the court had to deal with the question of his whether the evidence he would be permitted to give had to be revisited in light of the prospect of Dr. Totten testifying. I use the word “prospect” advisedly because Mr. Fishbayn informed the court that depending on precisely what the court would permit Dr. Totten to say and any revision to the court’s ruling as to what Detective Backus could say, he might decide not to call Dr. Totten. I excused the jury until Wednesday, February 29, in order to allow time to hear argument on the second phase of the Abbey inquiry.

[ 23 ] I have dwelt on this issue at some length because this is by no means the first time in this trial that counsel have ignored the applicable provisions of the Criminal Proceedings Rules and, in this instance, the requirements of s. 657.3 of the Criminal Code , in bringing applications. That unfortunate tendency has, in turn, resulted in a significant loss of valuable court time and unfair disadvantage visited upon the prosecution. In that regard, see also my reasons for decision respecting a defence application for additional disclosure respecting the Backus application, released January 17, at paras. 83 to 97; my reasons for excluding evidence respecting certain telephone numbers, released February 23; and my reasons for excluding fingerprint evidence, released February 24.

(Decision continues with the remaining sections exactly as in the source.)