ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-50000653-0000
DATE: 20120601

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – OLDRICH PELICH Respondent

Amanda Camara , for the Applicant
Christopher Biscoe , for the Respondent

HEARD: May 24, 2012

DUNNET J.:

RULING ONAPPLICATION TO TENDER CHRISTOPHER PURCHAS AS AN EXPERT WITNESS

[ 1 ] The respondent has been charged under s. 163.1 of the Criminal Code , R.S.C. 1985, c. C-46 with possession of child pornography, making available child pornography, making child pornography and accessing child pornography.

[ 2 ] The facts giving rise to these charges are that on June 5, 2008 and July 15, 2008, Officer Christopher Purchas was conducting an investigation on the Internet into child exploitation activities. He made a one to one connection with a computer which had an active connection to the Gnutella Network and he browsed its shared folder. Using an Internet file sharing program called LimeWire, the officer downloaded child pornography from the computer.

[ 3 ] It is alleged by the Crown that on those dates, the respondent was the subscriber of the Internet Protocol address assigned to the computer. Officer Purchas applied for and obtained a search warrant for the respondent’s residence. In executing the warrant, a laptop computer, computer tower and a quantity of CDs and DVDs were seized from the respondent’s residence.

[ 4 ] During the trial, Crown counsel sought to tender Officer Purchas as an expert witness in child pornography Internet investigations and peer to peer file sharing networks. The respondent objected to the evidence on the basis of bias and partiality. Following a voir dire , I ruled that the probative sufficiency of the evidence justified its admission, despite any potential prejudice. These are my reasons.

[ 5 ] The proposed witness has been employed by the Toronto Police Service since 1996. He has earned diplomas in business administration from Seneca College of Applied Arts and Technology and electronic engineering and computer science from De-Vry Institute of Technology. Prior to becoming a police officer, he was managing director of a computer company for eight years.

[ 6 ] Since 2004, he has been involved in child pornography investigations and investigations relating to other sexual offences involving the Internet. In that capacity, he has viewed child pornography on still photographs, video images and computer images. Between 2005 and 2011, he was assigned to the Child Exploitation Section of the Sex Crimes Unit where his duties also included investigations into the manufacturing, distribution, sale, importation and possession of child pornography.

[ 7 ] Since 2005, he has received training in the investigation of child pornography trading on peer to peer networks and has been involved in more than three hundred national and international peer to peer investigations. In 2006, he became a qualified instructor on peer to peer investigations and has trained over two hundred police officers in Canada, Australia, South America, the United Arab Emirates and the United States.

[ 8 ] Since June 2011, he has served as the Royal Canadian Mounted Police Technology Subject Matter Expert for Eastern Canada. In that role, he conducts testing of new developments in child protection system software and designs and implements training programs on new technology in child exploitation investigations.

[ 9 ] He has been previously qualified as an expert in child exploitation investigations in relation to peer to peer file sharing networks in Toronto, Peel Region, Durham Region, London, Ontario and Ottawa, Ontario.

[ 10 ] The respondent takes no issue that the four preconditions to the admissibility of the proposed expert evidence, as identified in R. v. Mohan , [1994] 2 S.C.R. 9, have been met:

• The proposed opinion relates to a subject matter that is properly the subject of expert opinion evidence;

• The witness is qualified to give the opinion;

• The proposed opinion does not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and

• The proposed opinion is logically relevant to a material issue in the case. See R. v. Abbey , 2009 ONCA 624 at para. 80 .

[ 11 ] The respondent submits that the evidence should nonetheless be excluded because the role of the witness in the investigation creates an appearance of bias and partiality. He conducted the initial investigation leading to the downloading of child pornography on June 5 and July 15, 2008. He was the affiant on the Information to Obtain the Search Warrant. After the respondent’s arrest, he was the interrogating police officer.

[ 12 ] The respondent relies on the case of R. v. Van Bree , 2011 ONSC 4273 where the court, referring to the Court of Appeal decision in Abbey , discussed the issue of partiality as a factor in the cost-benefit analysis that is engaged at the gatekeeper stage of the admissibility analysis. At para. 52 in Van Bree , the court held:

In my view, Abbey , supra , provides direction on a number of matters discussed above regarding partiality in determining the threshold admissibility of expert evidence:

(1) Firstly, the test terminates the previous generally applied approach whereby partiality went to weight, not admissibility. Abbey, supra , requires that a threshold admissibility analysis be undertaken, which includes issues of partiality, before an expert may testify.

(2) Secondly, the gate keeping test similarly closes the debate on whether partiality issues should be treated as preclusionary factors relating to the qualifications of expert; by Doherty J.A.’s analysis, partiality factors are part of the second stage nuanced cost-benefit analysis.

(3) Thirdly, partiality is a scalable factor: the court’s function is to determine “…the extent to which the expert is shown to be impartial and objective" (para. 87) before it is brought into the cost-benefit analysis.

(4) Fourthly, partiality and objectivity do not appear to be accorded more weight than other factors used to determine the threshold admissibility of the expert’s evidence. It is a scalable factor, as are the other factors considered in the cost-benefit analysis.

[ 13 ] At para. 66 in Van Bree , the court went on to explain that the cost-benefit analysis is intended to determine the probative sufficiency of the evidence to justify its admission, despite the potential prejudice.

The Court saw the impartiality/partiality analysis as best conducted from the impartiality side of the coin and placed the factor in the benefit side of the analysis in the following list:

(1) whether the evidence is being tendered in relation to a significant or important issue in the trial,

(2) whether the evidence is useful and necessary or essential to a jury's ability to understand and evaluate material evidence, and

(3) whether the evidence has probative value, i.e. is reliable.

(a) as concerns the subject matter,

(b) the methodology used to arrive at the opinion,

(c) the expert’s expertise,

(d) “the extent to which the expert is shown to be impartial and objective”.

[ 14 ] The witness is being tendered to provide opinion evidence on LimeWire peer to peer file sharing technology, what a user would see when installing LimeWire, how files are downloaded, how a user could see what was in a shared folder and an analysis of the contents of LimeWire properties files, including how they are created and how they can be changed.

[ 15 ] The proffered opinion evidence is in relation to the operation of the peer to peer file sharing program that is central to the issues in this case. The witness has considerable training and experience in the subject matter, which is essential to the court’s ability to understand and evaluate the evidence, the respondent having elected to be tried by judge alone. Moreover, the evidence is clearly probative of the issues.

[ 16 ] The witness is not being tendered to provide an opinion about whether the respondent knew that he was sharing files on LimeWire. Further, from his testimony on the voir dire , I am satisfied that the witness has demonstrated a clear understanding that his role is to be independent and not that of an advocate and that his opinion is being offered to assist the court.

[ 17 ] The respondent is not alleging actual bias or partiality. His position is that the role of the witness in the investigation creates the appearance of partiality. Police officers share a tradition of upholding the law and adhering to principles of professionalism that support integrity and impartiality as one of their objectives in carrying out their duties. See Van Bree at para. 117 .

[ 18 ] In Van Bree , the accused was charged with possession of Hydromophone. The proposed expert was a member of a drug enforcement unit of the Ontario Provincial Police. He participated in the investigation of the accused that resulted in similar drug trafficking charges. The court found that there was an appearance of potential partiality arising from his institutional background working on preventing drug trafficking. Further, his involvement in a subsequent investigation causing the accused to face further charges of a similar nature added to the appearance of partiality. The court went on to state at para. 118:

Accordingly, it is my view that the commitment of police forces to professionalism and the rule of upholding the law attenuates somewhat the apprehension of bias that otherwise might attach to Dobler offering expert evidence in respect of the accused. For this reason, I attach minimum importance to the fact that the police officer was involved in the investigation of the accused and place the potential for partiality on the part of Dobler at the low end of the scale.

[ 19 ] The court ruled that those portions of Dobler’s report relating to the culture and indicia of drug trafficking were admissible along with his opinion evidence concerning those issues but that the conclusory opinion of his “strong inference” that the accused possessed the tablets for the purpose of trafficking was inadmissible.

[ 20 ] In my view, the potential prejudice, as it applies to the particular circumstances of this case, is limited. I would adopt the comments of the court in Van Bree at paras. 123 and 124 :

123 In terms of gate keeping, I think there is an argument to be made that the risk should not be overstated in allowing consideration of the evidence of the apparently partial expert witness at trial. The recent much-publicized failures in gate keeping were not caused by partial experts, but those who evinced the highest appearances of impartiality.

124 This demonstrates that whether the witness demonstrates appearances of impartiality or not, the judge must rely on the same tools of context, logic and human experience to determine the probative value of the witness’ testimony.

[ 21 ] The proffered opinion evidence is probative and necessary to a proper adjudication of the facts in this case. Its reliability is high, having regard to the qualifications and expertise of the witness in the subject matter. Applying the threshold test for admissibility in my role as gate keeper and taking into account the factors relevant to the cost-benefit analysis, I would admit the proffered opinion evidence in child pornography Internet investigations and peer to peer file sharing networks.

DUNNET J.

Released: June 1, 2012

COURT FILE NO.: 10-50000653-0000
DATE: 20120601
ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Applicant – and – OLDRICH PELICH Respondent

RULING ON APPLICATION TO TENDER cHRISTOPHER PURCHAS AS AN EXPERT WITNESS DUNNET J.

Released: June 1, 2012