RULING ON APPLICATION TO ADMIT EXPERT EVIDENCE

Overview

[1] The applicant, Michael Sang-Woo Ye, is charged with the first degree murder of Khoung Nguyen on May 9th, 2007. The allegation against Mr. Ye is that he participated in a home invasion robbery of a marijuana grow operation in which he shot and killed the victim. The Crown advances two routes to culpability for murder: 1. That Mr. Ye intentionally shot Mr. Nguyen and therefore either intended to kill him or intended to cause him bodily harm that he knew was likely to cause death and was reckless whether death ensued; or, 2. That Mr. Ye, in the pursuit of the unlawful object of robbery, committed the dangerous act of pointing a loaded, cocked firearm at the victim knowing that the dangerous act was likely to cause death.

[2] The Crown’s case is complete and the case for the defence is complete except for this application to introduce expert evidence.

[3] The applicant applies to introduce expert opinion evidence on the interpretation of crime incident data compiled by the Toronto Police Service relating to the likelihood of death being caused in robberies involving firearms. The proposed expert is N. Scot Wortley, a criminologist with extensive experience in the interpretation of crime incident data.

[4] The report of Dr. Wortley is attached to these reasons as Appendix ‘A’. In summary, it sets out Dr. Wortley’s opinion, based on the data, that only a very small percentage of firearms-related robberies (0.15%) resulted in a firearms- related homicide in the four year period preceding the offence in this case. Dr. Wortley also expresses the opinion that most armed robbery offenders have no intention or plan to commit murder when they engage in robberies.

[5] If the application to introduce expert evidence is denied, the applicant alternatively seeks to introduce the data relied upon by Dr. Wortley as a business record.

Positions of the Parties

[6] The applicant submits that the opinion of Dr. Wortley is relevant and admissible on the issue of whether death is likely to result from a robbery with a gun. He argues that the jury cannot conclude that he knew that death was likely to result from his actions if that fact is objectively untrue. He further argues that there is a danger that the jury would erroneously conclude that death is likely to result when a loaded firearm is brought to a robbery and the expert evidence is necessary to dispel that false assumption.

[7] The Crown submits that the proposed expert evidence is not relevant and is therefore inadmissible. Alternatively, the position of the Crown is that the very limited probative value is outweighed by the potential prejudicial effect of the evidence.

Analysis

[8] Expert evidence is presumptively inadmissible. The applicant must establish admissibility on four fronts prior to putting the proposed expert evidence before the trier of fact, namely:

(i) relevance;

(ii) necessity in assisting the trier of fact;

(iii) the absence of any exclusionary rule; and,

(iv) a properly qualified expert.[^1]

[9] In R. v. Abbey,[^2] Doherty J.A. suggested a two-step process for determining admissibility using the criteria set out in Mohan.[^3]

[10] At the first stage of the inquiry, the court must determine whether the four preconditions to admissibility have been established:

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

• The witness must be qualified to give the opinion;

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

• The proposed opinion must be logically relevant to a material issue.[^4]

[11] At the second stage or the ‘gate-keeper stage’ of the inquiry the court must engage in the ‘cost-benefit’ analysis described in Mohan.

[12] Justice Doherty wrote that the necessity criterion should be considered in the second stage, cost-benefit analysis: “It seems self-evident that an expert opinion on an issue that the jury is fully equipped to decide without that opinion is unnecessary and should register a “zero” on the benefit scale. Inevitably, expert opinion evidence that brings no added benefit to the process will be excluded.”

[13] The cost or prejudice side of the analysis will involve an assessment of the risks of the evidence including the “consumption of time, prejudice, and confusion.”[^5]

[14] The proposed expert evidence in this case relates only to the theory of liability for murder arising as a result of s.229(c) of the Criminal Code, R.S.C 1985, c. C-46, which provides as follows:

Culpable homicide is murder … where a person, for an unlawful object, does anything that he knows… is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

[15] Our Court of Appeal in R. v. Shand,[^6] in upholding the constitutionality of s. 229(c) explained that the following elements must be present to satisfy the section:

a) the accused must pursue an unlawful object other than to cause the death of the victim or bodily harm to the victim knowing that death is likely;

b) the unlawful object must itself be an indictable offence requiring mens rea;

c) in furtherance of the unlawful object, the accused must intentionally commit a dangerous act;

d) the dangerous act must be distinct from the unlawful object, but only in the sense that the unlawful object must be something other than the likelihood of death, which is the harm that is foreseen as a consequence of the dangerous act;

e) the dangerous act must be a specific act, or a series of closely related acts, that in fact results in death, though the dangerous act need not itself constitute an offence; and

f) when the dangerous act is committed, the accused must have subjective knowledge that death is likely to result.

[16] The evidence in Shand was similar to the evidence in this case. The appellant brought a loaded gun to a home invasion robbery. He took out the gun during the robbery when the victims resisted. He used the gun in some way, either pointing it or hitting a victim with it. The Court said at paragraph 191 to 195:

191 It would, for example, be wrong to frame the dangerous act as entering a home with a loaded gun or engaging in a home invasion with a gun. Although these "acts", in a sense, led to the events in the basement bedroom, they were not the acts that actually caused the death.

192 When Brisbois fled to the basement with the marijuana and the appellant and J.B. pursued her, the situation changed significantly.

193 In my view, it is upon entering the basement bedroom that the appellant committed the dangerous act. The act was drawing and using his gun in an attempt to subdue the occupants of the room. This act was clearly done in furtherance of the unlawful object, being the robbery. Whether the gun was intentionally or accidently discharged, it was the choice to use the gun in order to subdue the occupants that caused the death.

194 The critical issue, then, is whether the appellant possessed the necessary mens rea at the time that he committed the dangerous act. If, when he pulled out the gun and used it in the confined space of the basement bedroom, the appellant knew that it was likely to cause death, but did so nonetheless in pursuance of the theft, this would satisfy the mens rea component of s. 229(c).

195 If, however, he did not then know that death was likely, the necessary mens rea would be absent. It is critical that the appellant's state of mind at this particular point in time is ascertained. That determination is a subjective one. The question is not what he ought to have known. The question is what he actually knew and foresaw. Surrounding facts, including the appellant's prior conduct, can be considered to determine what the appellant actually knew. What his state of mind may have been before or after committing the dangerous act is not determinative.

[17] As set out in Shand, it is the dangerous act that the accused must know is likely to cause death. It is not the unlawful object that is likely to cause death. The Court in Shand also observed that whether a person knew that an act was likely to cause death is a fact-specific question.[^7]

[18] In this case, I have concluded that the proposed evidence is not logically relevant to a material issue. I reach that conclusion because the evidence of Dr. Wortley is logically relevant only to whether death is likely to result from the unlawful object of robbery with a firearm. His evidence is not logically relevant to the issue of whether death is likely to result from the specific dangerous act in this case. In this case, the alleged dangerous act committed by the accused is pointing of the loaded, cocked semi-automatic firearm at the victim in order to subdue or intimidate the victim. Neither the opinion of Dr. Wortley nor the data that forms the foundation for his opinion is relevant to the likelihood of death arising from the specific dangerous act in this case.

[19] Even if I am wrong in this conclusion on logical relevance, the evidence would not be admissible at the second stage of the inquiry or the cost-benefit analysis. There is a danger that the jury would be confused or misled by the statistics and would consider the likelihood of death resulting from the unlawful object rather than the dangerous act. There is also the danger that the jury would apply an objective rather than a subjective standard in determining whether the accused had the requisite knowledge.

Conclusion

[20] I therefore conclude that the expert evidence is not admissible. I further conclude that the foundational data contained in the records produced by the Toronto police is not admissible as it is not relevant to a material issue in the trial.

M. Forestell J.

Released: December 12, 2013

COURT FILE NO.: CR-12-30000211

DATE: 20131212

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and -

MICHAEL SANG-WOO YE

RULING ON ADMISSIBILITY OF EXPERT EVIDENCE

M. Forestell J.

Released: December 12, 2013

[^1]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.) [^2]: 2009 ONCA 624, [2009] O.J. No. 3534 (C.A.) [^3]: Mohan, supra. [^4]: Abbey, supra, at para. 80 [^5]: R. v. J.-L.J. at para 47 [^6]: 2011 ONCA 5, [2011] O.J. No. 25,(C.A. ), leave to appeal refused [2011] S.C.C.A. No. 270 [^7]: Shand, supra, at para. 209

Her Majesty the Queen v. Michael Sang-Woo Ye, 2013 ONSC 7717

Case Summary

RULING ON APPLICATION TO ADMIT EXPERT EVIDENCE

Overview

Positions of the Parties

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 1