ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 243/11
DATE: 20120628

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Igor Kresko Applicant

T. Kranjc , for the Crown
E. Ashurov , for the Applicant

HEARD: June 27, 2012

REASONS FOR RULING ON NEW EXPERT WITNESS

HIMEL j.

[ 1 ] Igor Kresko is charged with the offences of criminal negligence causing death, criminal negligence causing bodily harm, impaired driving causing death, impaired driving causing bodily harm, fail to remain (two counts), refuse to provide breath sample causing death, refuse to provide breath sample causing bodily harm, dangerous operation of a motor vehicle causing death, dangerous operation of a motor vehicle causing bodily harm, drive while disqualified and assault peace officer. He has elected to be tried by me sitting without a jury.

[ 2 ] During the prosecution case which has lasted 25 days and has involved the calling of 35 witnesses, Crown counsel called a witness who was deemed qualified to provide opinion evidence on the issue of accident reconstruction. It was anticipated that following his evidence, there would be a few more witnesses called and the Crown would close its case by the end of the week. When the evidence of the accident reconstructionist was concluded, Crown counsel advised the court that she was now seeking to call an additional expert on this issue. She had notified defence counsel late on Wednesday, June 20, 2012 and also provided counsel with a fifteen page curriculum vitae for this proposed expert. Both counsel brought this to my attention on Friday, June 22, 2012 and I asked that they wait to make submissions about the proposed evidence after Crown counsel has received and provided the new expert report to the defence and after the defence has made certain inquiries. The Crown served the report of Officer Nikolaj Bokalo on the defence during the late afternoon of Sunday, June 24, 2012. It is eight pages of text and contains eleven pages of calculations. The defence has spoken to his expert and was advised by him that he would require an additional sixty hours to review and consult on the new report. Counsel for Mr. Kresko also advised the court that he was given a one page document on Monday, June 25, 2012 from Detective Constable Mason from Traffic Services which was provided to explain some aspects of the report.

POSITIONS OF THE PARTIES:

[ 3 ] Crown counsel argues that, in accordance with s. 657.3 of the Criminal Code , she is permitted to call an expert witness after the thirty day period prescribed and she has given notice by delivering a copy of the report prepared by the proposed witness along with his detailed curriculum vitae at the earliest opportunity. She takes the position that this additional expert was not anticipated. She argues the evidence is relevant and will be of probative value to the court in reaching its decision. She says the question of the speed of the motor vehicles involved in the collision has been in issue since the outset of the case and is directly linked to whether the charges of criminal negligence and dangerous driving can be proven. This is not an issue that would take the defence by surprise. The need for an additional expert arose during the course of the trial as a result of cross-examination by the defence. Crown counsel says that to exclude the evidence of Officer Bokalo would leave the court with a distorted or misleading picture on the issue of speed.

[ 4 ] Crown counsel also argues that the question is not whether to exclude the evidence of the expert but rather whether an adjournment or other terms should be imposed as a remedy under subsection 4 of section 657.3 . She submits that this is precisely the situation contemplated by Parliament when it passed s. 653.3 which permits expert reports to be provided after the thirty day period prior to trial. She points out that while Mr. Kresko has been in custody and that is a factor to consider, the prejudice is minimal as the trial is still in the prosecution’s case and the defence has not been put to its election as to whether to call evidence. Furthermore, any adjournment does not have to be lengthy. She submits that the probative value of the evidence far exceeds any prejudicial effect.

[ 5 ] Counsel for Mr. Kresko takes the position that the Crown should not be permitted to call another Crown expert at this late stage of the proceedings. Counsel argues that the disclosure of the report at the eleventh hour is extremely prejudicial to the defence and that it is not in the interests of justice to permit counsel to lead this evidence. The court should control its process and in the interests of fairness, exercise its inherent powers and not permit Crown counsel to call this additional evidence. The defence points out that the Crown’s case was supposedly to conclude on June 22, 2012. The report was provided to him but in his submission, was done quickly at the expense of clarity. There is little by way of explanation on how speeds were arrived at. The new report approaches the calculation of speeds in a different way and according to a different formula thus necessitating the defence expert to review it. Counsel for Mr. Kresko submits that the Crown should have scrutinized its expert witness whose report was given to the Crown in February 2011 such that she would not have been taken by surprise at trial when the cross-examination occurred. Had she done that, this situation would not have occurred. It is the Crown’s obligation to ensure that expert evidence being tendered is reliable. Counsel also emphasizes that Mr. Kresko is in custody and has been for some time. If the Crown’s new expert report is admitted, the defence will require Legal Aid to authorize an additional 60 hours to review and instruct counsel. Principles of fairness dictate that the trial judge prevent an abuse of process by excluding the evidence.

ANALYSIS AND THE LAW:

[ 6 ] Section 657.3 of the Criminal Code states as follows:

657.3(1) In any proceedings, the evidence of a person as an expert may be given by means of a report accompanied by the affidavit or solemn declaration of the person, setting out, in particular, the qualifications of the person as an expert if

(a) the court recognizes that person as an expert; and

(b) the party intending to produce the report in evidence has, before the proceeding, given to the other party a copy of the affidavit or solemn declaration and the report and reasonable notice of the intention to produce it in evidence.

(2) Notwithstanding subsection (1), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration or report.

(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,

(a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party o parties of his or her intention to do so, accompanied by

(i) the name of the proposed witness,

(ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and

(iii) a statement of the qualifications of the proposed witness as an expert;

(b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties

(i) a copy of the report, if any, prepared by the proposed witness for the case, and

(ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and

(c ) in addition to complying with paragraph (a), an accused, or his or her counsel, who attends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).

(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party,

(a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness;

(b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and

(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so.

(5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following:

(a) adjourn the proceedings;

(b) order that further particulars be given of the evidence of the proposed witness; and

(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony.

(6) If the proposed witness does not testify, the prosecutor may not produce material provided to him or her under paragraph (3) in evidence without the consent of the accused.

(7) Unless otherwise ordered by a court, information disclosed under this section in relation to a proceeding may only be used for the purpose of that proceeding.

[ 7 ] The purpose of this provision is to allow full and timely disclosure of the proposed testimony of a witness who may be qualified by the court to give opinion evidence. The object is to ensure efficient management of a criminal trial and to provide a fair opportunity to respond to such evidence which is often technical and complex.

[ 8 ] There has been some judicial commentary of the provision which is relatively new. In the case of R. v. Horan 2008 ONCA 589 , [2008] O.J. No. 3167 (C.A.), the Crown appealed the respondent’s acquittal on charges of robbery, assault with a weapon, and uttering death threats where the case turned on the credibility of the two complainants. The Crown argued that the trial judge made several errors including excluding certain medical evidence to explain one of the complainant’s injuries. The Court of Appeal held that the trial judge erred in excluding a portion of the evidence of a physician, the effect of which was to deprive the jury of a potential explanation for why a collapsed lung had not been seen on the first set of x-rays. The court held, however, that had the physician’s additional evidence been admitted, the verdict would not necessarily have been different.

[ 9 ] The court considered the issues of disclosure and the trial judge’s management power including the effect of s. 657.3 of the Code. At trial, counsel for the defence had objected to the Crown calling a medical doctor who had examined the x-rays of the complainant and provided certain medical opinions. Defence counsel asked for an order that the physician not be permitted to testify because the Crown had breached its disclosure obligations under R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.) and did not comply with the 30 day notice period required by s. 657.3. He argued that the respondent was in custody and would be prejudiced by an adjournment of the trial. The trial judge ruled that the expert could outline certain observations but could not provide an opinion to explain certain items on the radiologist’s report or the results of the two radiologists’ reports because of late disclosure.

[ 10 ] Justice Rosenberg held that the trial judge had mischaracterized the issue as a disclosure issue and commented that the Crown cannot be expected to disclose information before trial whose relevancy first becomes apparent during the trial itself and the prosecution cannot be expected to disclose what it does not have. He held that the Crown was not in breach of its disclosure obligations. Further, Justice Rosenberg held that the remedy granted by the trial judge was inappropriate. He wrote as follows at para. 29:

However, s. 657.3 does not give the trial judge the power to refuse to allow the expert witness to testify. Thus the remedy granted by the trial judge in this case was not authorized by s. 657.3.

[ 11 ] The court did comment that where there has been a breach of the Crown’s disclosure obligation to the extent that the accused’s s. 7 Charter right to make full answer and defence has been infringed, trial judges have a range of remedies available from a stay of proceedings in the most egregious cases to ordering disclosure and other remedies such as costs or an adjournment. “Further, in an appropriate case, the trial judge has the power to give the remedy adopted in this case of excluding the undisclosed evidence: see R. v. O’Connor (1995), 103 C.C.C. (3d) 1 at para. 66 , approving the use of innovative remedies as appropriate, including exclusion of evidence, as was done in R. v. Xenos (1991), 70 C.C.C. (3d) 362 (Que. C.A.).” Justice Rosenberg continued at para. 31:

Any remedy for breach of the disclosure obligation must be responsive to the breach; the remedy must, in the words of s. 24(1), be “appropriate and just in the circumstances”. In most cases, the appropriate remedy is to order disclosure and, if necessary, adjourn the case to allow the defence to conduct whatever further preparation or investigation may be necessitated by the disclosure. In some cases, an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of an in-custody accused. In such a case, an appropriate remedy could be exclusion of the undisclosed evidence. However, the burden is on the accused to demonstrate that exclusion of the evidence was appropriate.

[ 12 ] The court concluded that if there was a breach of the prosecution’s disclosure obligation, in that case, the remedy was unreasonable. However, Justice Rosenberg said that he did not believe the problem was a disclosure issue but rather that the trial judge was exercising his power to manage the trial. In R. v. Felderhof (2003), 180 C.C.C. (3d) 498 (Ont. C.A.), the Ontario Court of Appeal recognized a broad trial management power to promote the efficient use of court time and to ensure fairness. That decision also written by Justice Rosenberg commented on the trial management power as follows at para. 57:

…It is neither necessary nor possible to exhaustively define its content or its limits. But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire , to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called….

[ 13 ] In Horan , Justice Rosenberg considered the trial management power and wrote at para. 33 of that case:

However, excluding relevant and otherwise admissible evidence is an unusual exercise of the trial management power and, in my view, it should be plain and obvious that the circumstances require that remedy and that the usual remedies, such as a short adjournment, would not suffice. On this record for the same reasons that a Charter remedy of exclusion of evidence was not made out, in my view, exclusion of Dr. Reid’s additional evidence was not justified to manage the trial.

[ 14 ] In R. v. Bjelland 2009 SCC 38 , [2009] 2 S.C.R. 651, the defence was given late disclosure of a transcript of an accomplice and a statement of facts from another accomplice just prior to trial. There was no suggestion that the Crown had engaged in deliberate misconduct. The Supreme Court held that the trial judge committed a reviewable error by failing to consider whether the prejudice to the appellant could be remedied without excluding the evidence under the Charter . The exclusion of evidence resulted in an acquittal on charges of importing cocaine and possession of cocaine for the purpose of trafficking. The court held that prejudice to the appellant’s right to make full answer and defence could be remedied through an adjournment and disclosure order and there was nothing that otherwise compromised the fairness of the trial process or the integrity of the justice system. The court wrote at para. 22:

While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly. In R. v. Harrer , [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trial fairness. She stated, at para. 45, that:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused.

[ 15 ] The court went on to say that apart from ensuring trial fairness, the other circumstance where late disclosed evidence might be excluded under the Charter is where to admit the evidence would compromise the integrity of the justice system. The majority of the court wrote at para. 24:

Thus, a trial judge should only exclude evidence for late disclosure in exceptional cases: (a) where the late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) where exclusion is necessary to maintain the integrity of the justice system. Because the exclusion of evidence impacts on trial fairness from society’s perspective insofar as it impairs the truth-seeking function of trials, where a trial judge can fashion an appropriate remedy for late disclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise the integrity of the justice system, it will not be appropriate and just to exclude evidence under s. 24(1).

[ 16 ] The court also cited with approval the decision of Horan at para. 31 in recognizing there may be instances where an adjournment and disclosure order may not be appropriate because the admission of evidence compromises the integrity of the justice system.

DECISION:

[ 17 ] In the case before me, the accused is in custody and has been for more than eighteen months prior to trial. At the eleventh hour, Crown counsel has served notice to the defence that the prosecution wishes to call a further expert on accident reconstruction and has disclosed the curriculum vitae and the report of the proposed expert to the defence. The defence submits that he will have to consult with his own expert which involves obtaining authorization to do so and allowing his expert to review the report and provide him with advice. The defence urges the court to exclude the evidence of the Crown’s proposed expert at trial on the basis of trial fairness. However, counsel did not bring an application under the Charter of Rights and Freedoms . This is in contrast to the approach in the case of R. v. Dell [2000] O.J. No. 5323 (Ont. Sup. Ct.) where the court held that the conduct of the Crown with his change of direction and untimely disclosure amounted to an abuse of process under s. 7 of the Charter and, in the circumstances of that case, granted a motion by the accused to dispense with the Crown’s consent under s. 473 to allow a re-election for trial by judge sitting alone. Counsel submits that this court has the authority to control its own processes and prevent an abuse by the prosecution which has unlimited resources.

[ 18 ] The charges facing the accused in this case are serious and involve the death of one person and serious injury to another. Society has an interest in a fair trial that reaches a reliable determination of the accused’s guilt or innocence based on all of the available evidence. I accept that the Crown was taken by surprise and that there was no deliberate misconduct or lack of diligence that caused the Crown to produce the proposed expert at such a late stage in the process. Fortunately, the prosecution has not completed calling its case and the accused has not yet been put to the election about whether or not to call evidence.

[ 19 ] This is one of those situations which is contemplated by s. 657.3 of the Code and where late disclosure of an expert’s testimony can be compensated with an adjournment to the defence and an opportunity for the defence to carefully consider and consult on the new report of the accident reconstructionist. This is not one of those exceptional cases where the admission of evidence would cause such prejudice to the accused and the prejudice cannot be remedied by an adjournment or that one of those circumstances where to include the evidence would compromise the integrity of the justice system. This approach was followed in R. v. Ivy Fisheries Ltd . 2009 NSSC 95 , [2009] N.S.J. No. 139 (N.S.S.C.) where the court held at para. 100 that the remedy for failure to give timely disclosure of an expert report lies in s. 657.3(4) and not in holding an expert’s opinion inadmissible and in R. v. Somerville 2012 NBCA 23 , [2012] N.B.J. No. 70 (N.B.C.A.) where the court wrote concerning s. 657.3(4) at para. 30: “Nothing in the Criminal Code suggests the evidence is inadmissible solely on the basis that the required notice was not given.”

[ 20 ] Counsel for Mr. Kresko submits that the case of R. v. Samuels [2001] O.J. No. 3969 is relevant to the case on point. In that case, the court conducted a voir dire to determine the admissibility of expert evidence dealing with the speed and the vehicle mechanism as the vehicle went over a cliff and held that the evidence was not admissible. The court commented on the role of experts and the fact that trial judges are the gatekeepers for expert evidence. The court was concerned about the methodology and analysis of the expert opinion and concluded that the opinion did not meet the minimum standards of admissibility. With respect, that decision did not address the issue before me which is whether to apply s. 657.3 and allow the Crown to call the evidence of the proposed expert where there has been late disclosure. The methodology utilized and whether the opinion meets the criteria under R. v. Mohan 1994 80 (SCC) , [1994] 2 S.C.R. 9 is a completely different issue.

[ 21 ] A superior court judge has inherent jurisdiction to remedy procedural unfairness: see R. v. Rose 1998 768 (SCC) , [1998] S.C.J. No. 81 at para. 133 where the court held that this residual jurisdiction provides a “significant and effective basis for preventing abuse of the court’s process and ensuring fairness in the trial process”. The inherent jurisdiction “includes the authority to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner”: see R. v. Cunnningham , 2010 SCC 10 at para. 18 .

[ 22 ] It cannot be that the Crown, with the resources of the state behind it, can parade an unlimited number of experts before the court on the same point, effectively preventing indigent accused from adequately responding to each expert’s testimony. There is a point at which this would create an unacceptable procedural unfairness, and the court must rely on its inherent jurisdiction as well as its trial management powers to establish limits in order to ensure fairness in the trial process.

[ 23 ] In summary, s. 657.3 provides an adequate safeguard in the circumstances of this case. Accordingly, the evidence of the proposed expert may be called by the prosecution subject to the witness being properly qualified and the evidence meeting the criteria of Mohan in terms of its admissibility. The condition of permitting the late notice of the expert report is that an adjournment will be granted which will allow defence counsel an opportunity to consult with his own expert if he wishes and be in a position to make full answer and defence. In light of the fact that the accused is detained in custody, the adjournment will have to be relatively brief. The defence has sought additional conditions by way of alternative relief. He has asked that I order the Ontario Legal Aid Plan to fund the further retainer of the defence expert. I have asked counsel to provide me with some authority to compel this and he is unable to do so. Frankly, I do not see how I could make such an order. He has also requested that the accused be released from custody pending the adjournment. I cannot attach Mr. Kresko’s release from custody as a condition of permitting the Crown to call the further expert. The question of whether Mr. Kresko should be detained further pending the conclusion of his trial is a matter that must be considered with reference to the three grounds for detention under s. 515 of the Code and whether the circumstances have changed sufficiently to justify a review of the detention order.

[ 24 ] To conclude, in my view, a fair trial is one which satisfies the public interest while providing procedural fairness. A brief adjournment to allow the defence to consider the new expert evidence is the appropriate remedy to achieve that result in the circumstances of this case.

Himel J.

Released: June 28, 2012

COURT FILE NO.: 243/11

DATE: 20120628

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent -and- IGOR KRESKO Applicant

REASONS FOR RULING ON NEW EXPERT WITNESS Himel J.

Released: June 28, 2012