ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 243/11
DATE: 20120810
BETWEEN:
HER MAJESTY THE QUEEN – and – Igor Kresko Respondent
Tanja Kranjc, for the Crown
Ernst Ashurov, for the Respondent
RULING GIVEN: July 25, 2012
REASONS FOR RULING ON EXPERT EVIDENCE
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 ] The trial commenced on April 25, 2012 and over thirty witnesses have been called by the prosecution. The offences alleged arise out of a motor vehicle collision resulting in the death of one person and serious bodily harm of another. Crown counsel has called as the final witness in the case Detective Constable Nick Bokalo who is being proferred as an expert in the field of accident reconstruction. Crown counsel wishes to have him provide the court with opinion evidence on accident reconstruction and speed analysis. The defence objects to this evidence on two grounds. First, that the witness is not a properly qualified expert and second, that the evidence is inadmissible and does not fall within the ambit of expert evidence as outlined in the decision of R. v. Mohan 1994 80 (SCC) , [1994] 2 S.C.R. 9. Both parties agreed that the evidence of Detective Constable Bokalo should be called in the context of a blended voir dire and that if the evidence is ruled admissible, it would apply to the trial proper. Following his evidence, I ruled that he was a properly qualified expert and could provide the court with opinion evidence on accident reconstruction and speed analysis and that his evidence fell within the scope of expert evidence as outlined in R. v. Mohan , supra and would be admitted at trial .
ANALYSIS AND THE LAW:
[ 3 ] The evidence of an expert witness is an exception to the general rule that excludes opinion evidence. In order to provide the trier of fact with the necessary factual or scientific basis upon which to properly assess the evidence presented, the courts have recognized an exception to the rule for expert witnesses. As outlined in Mohan at para. 17 , there are four criteria to determine the admissibility of expert opinion evidence:
Relevance
Necessity in assisting the trier of fact
Absence of an exclusionary rule and
A properly qualified expert
[ 4 ] In Watt’s Manual of Criminal Evidence 2012 , the author notes at p. 409 that evidence which is logically relevant may be excluded if:
its probative value is outweighed by its prejudicial effect.
the time required to receive it is not commensurate with its value or
it may influence the trier of fact out of proportion to its reliability.
[ 5 ] Where counsel wishes to challenge the admission of the expert’s testimony, the issue becomes a preliminary question for the judge alone to determine. Thus, the question of whether the proffered expert has the requisite qualifications to testify on a particular subject is a question of law: see Sopinka, Lederman, Bryant, The Law of Evidence in Canada at p. 623-4. The trial judge is to consider the following in deciding the admissibility of expert evidence: (1) whether the party proffering the evidence has established the conditions precedent to admissibility and (2) whether the expert evidence is sufficiently beneficial to the trial process to warrant its admission as compared with any harm its admission may cause: see Watt’s Manual of Criminal Evidence at p. 410. This is the “gatekeeper role” of the trial judge which involves a case-specific cost benefit analysis.
CONCLUSION:
[ 6 ] Detective Constable Bokalo has extensive training and experience in accident reconstruction. Although he does not have a university degree, he has been a police officer since 1971, has investigated collisions since 1981 and has been a member of the Collision Reconstruction office of the Toronto Police Service since 1990. He has taken numerous courses and workshops over the years in both Canada and the United States in accident reconstruction. They are set out in detail in his lengthy curriculum vitae . As a result of his knowledge and skill, he has been an instructor for various police departments in collision investigation. His background , work experience and training are such that, in my view, he meets the test of being a witness with an acquired special or peculiar knowledge through study or experience in respect of the matters on which he undertakes to testify.
[ 7 ] In Sopinka, Lederman and Bryant, The Law of Evidence in Canada, supra , the authors write at p. 623:
…Before a court will receive the testimony on matters of substance, it must be demonstrated that the witness possesses special knowledge and experience going beyond the trier of fact. The test of expertise so far as the law of evidence is concerned is skill in the field in which the witness’s opinion is sought. The admissibility of such evidence does not depend upon the means by which that skill was acquired. As long as the court is satisfied that the witness is sufficiently experienced in the subject-matter at issue, the court will not be concerned whether his or her skill was derived from specific studies or practical training, although that may affect the weight to be given to the evidence.
[ 8 ] I am satisfied that Detective Constable Bokalo is a properly qualified expert and may provide this court with opinion evidence on accident reconstruction and, in particular, on vehicle speed analysis.
[ 9 ] The second issue raised by the defence concerns the admissibility of the evidence. The defence submits that his evidence is inadmissible as it is scientific evidence which is derived from new principles or techniques and his method for calculation of speed has not gained general acceptance in the field of accident reconstruction. Accordingly, the evidence should not be admitted.
[ 10 ] For the following reasons, I conclude that this is not a case of novel evidence which provides a new technique that is not established in the field. As discussed above, a trial judge has the role of acting as the gatekeeper in determining whether evidence is relevant and reliable. Evidence must be grounded in scientific measures and procedures which have been shown to be valid and are capable of producing reliable results. In deciding this, the court may consider whether the evidence applies recognized techniques that are generally accepted within the relevant scientific community. In Mohan , the court wrote at paras. 27 and 28:
Finally the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.
In summary, therefore, it appears from the foregoing that expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold or 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.
[ 11 ] The Supreme Court did not create a universal rule for screening the admissibility of novel scientific evidence or techniques. It described a more flexible approach using the criteria outlined above. In my view, the method or technique used by Detective Constable Bokalo cannot be categorized as novel scientific evidence. He used “in-line momentum” formula to calculate the speed for the Mercedes. He explained that he did this because the angle measurements were subjective depending on the placement of the measurement of the vehicles.
[ 12 ] I am satisfied that Detective Constable Bokalo is a witness who has been shown to have acquired specialized knowledge through his experience and study about accident reconstruction and speed calculations. His evidence is necessary in enabling the trier of fact to appreciate the technical nature of the matters in issue concerning speed and the factors affecting the collision. His opinion, while based upon a different method of calculation than that used by the Crown’s first accident reconstruction expert, does not rely on novel scientific techniques that lack reliability. It is an accepted method of calculation used in the field of accident reconstruction although not typically in a case which does not involve a head-on collision. If the defence is able to demonstrate that the scientific technique used by Detective Constable Bokalo was inappropriate in the circumstances of this case, then that is a matter of weight that I, as the trier of fact, may consider in assessing the evidence and determining the value to be placed upon it.
Himel J.
Released: August 10, 2012
COURT FILE NO.: 243/11
DATE: 20120810
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent IGOR KRESKO Applicant
REASONS FOR RULING ON EXPERT EVIDENCE Himel J.
Released: August 10, 2012