COURT FILE NO.: 13325/13

DATE: 20150730

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIN WAI HONG, MASON GILLARD-GATZA, NATHANIEL CAIN and RAPHAEL GUERRA

Defendants

Ronald Davidson and Lucas O’Neil, for the Crown

Michael Strathman for Tin Wai Hong
Stephen T. Lyon for Mason Gillard-Gatza
Anthony G. Bryant and Karen E. Symes for Nathanial Cain
David G. Bayliss for Raphael Guerra

HEARD: July 22, 2015

RULING ON s. 657.3(3) compliance

RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

BOSWELL J.

I

[1] The Criminal Code requires parties who intend to adduce expert evidence to deliver to any opposing parties, a report prepared by the expert, or a summary of his or her opinion. The Code is largely silent, however, about how detailed the report or summary must be.

[2] Mr. Cain is one of four accused persons on trial for murder and attempted murder. He has congenital heart disease. He proposes, as part of his defence, to call his cardiologist, Dr. Jack Colman, to give expert opinion evidence about his disease and its manifestations. One possible manifestation is impaired mental functioning in circumstances of sustained physical exertion. Mr. Cain’s counsel have indicated that they intend to adduce evidence from Mr. Cain and Dr. Colman that his disease affected him in such a way during the commission of the offences that the jury should have a reasonable doubt about whether he had the requisite state of mind for murder or attempted murder.

[3] Mr. Cain’s lawyers have delivered a report prepared by Dr. Colman to opposing counsel. The Crown says the report is not detailed enough and wants further particulars of Dr. Colman’s anticipated evidence. Mr. Cain’s counsel say the report is adequate as is.

[4] The disposition of this application requires a consideration of the following matters:

(a) What does the Criminal Code require of defendants in terms of notice and particulars regarding anticipated expert evidence?

(b) Who is the proposed expert in this instance?

(c) What evidence is the proposed expert expected to provide?

(d) What particulars have been provided in terms of the expert’s anticipated evidence?

[5] Ultimately, of course, the application asks whether the particulars provided are sufficient to satisfy the requirements of the Code. If not, what, if any, remedy is appropriate?

[6] I will begin with the requirements of s. 657.3(3) of the Criminal Code.

II

A. The Requirements of s. 657.3(3)

[7] Section 657.3(3) of the Criminal Code was enacted in 2002. It modified a long standing common law principle that an accused person need not provide disclosure of his or her defence. The modification is limited, imposing specific requirements connected to the testimony of expert witnesses. The section was enacted for the express purpose of “promoting the fair, orderly and efficient presentation of the testimony of witnesses”.

[8] Subsection 657.3(3)(a) compels both Crown and defence to give notice of an intention to adduce expert evidence at least 30 days prior to the commencement of the trial. The notice must be accompanied by the name of the proposed witness, a description of his or her area of expertise and a statement of the qualifications of the proposed witness.

[9] Subsections 657.3(3)(b) and (c) provide that in addition to complying with the notice requirements of paragraph (a) the party intending to call an expert witness must deliver to all opposing parties:

(i) a copy of the report, if any, prepared by the proposed expert witness; 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.

[10] The obligations of the Crown and defence are reciprocal, save in relation to the timing of the delivery of the expert’s report or summary. The Crown must disclose the report or summary of a Crown expert within a reasonable period of time prior to trial. An accused must disclose the report or summary of a defence expert no later than the close of the Crown’s case. The distinction in the timing requirements recognizes the Crown’s disclosure obligations under R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326 on the one hand, and the principle against self-incrimination on the other hand.

[11] Section 657.3(3) is otherwise silent in terms of the particulars that must be provided of the anticipated evidence of the expert. Presumably, if a report is produced, it must contain at least as much detail as the summary described in s. 657.3(3)(b)(ii). In other words, whether counsel delivers a report or summary, what must be provided, at a minimum, is an indication of the anticipated opinion and the grounds on which the opinion is based.

B. The Proposed Expert

[12] Dr. Colman is a staff cardiologist at both Mt. Sinai Hospital and the University Health Network (formerly Toronto General Hospital). He is an attending cardiologist at the Toronto Congenital Cardiac Centre for Adults (the “Cardiac Centre”) and is also a professor of medicine at the University of Toronto.

[13] Dr. Colman specializes in adult congenital heart disease and became Mr. Cain’s treating cardiologist in June 2004 when Mr. Cain was 19 years old.

[14] There is no issue about Dr. Colman’s qualifications to provide expert evidence in the field of cardiology. There is an issue about whether he is qualified to give expert opinion evidence regarding the effects of hypoxemia (low blood oxygenation) on mental functioning. I will return to this issue later in this ruling.

C. The Proposed Evidence

[15] To appreciate how Dr. Colman’s evidence might be relevant to the live issues in this case, it is necessary to know a little about the alleged offences and the circumstances in which they occurred.

[16] On October 19, 2011, three masked men surreptitiously entered the Minden, Ontario residence of Justin McKelvey. One was armed with a baseball bat. This was a drug rip-off. Mr. McKelvey was a local pot dealer. He was inside the residence, but so was his young friend, Ryan Kennedy. They were watching sports on television. The invasion did not last long. One or more of the masked intruders bludgeoned Mr. Kennedy to death. Mr. McKelvey was being beaten when a vehicle unexpectedly pulled into his driveway. The intruders were startled by the headlights and fled. They made off with four pounds of marijuana and about $350 in cash.

[17] Mr. Cain was one of the intruders. He concedes as much. He accepts that he has at least some level of criminal culpability for his role in the offences. I suspect he recognizes that the Crown has a strong case on at least the included offence of manslaughter. But he is charged with first degree murder and attempted murder. The Crown’s theory is that the invasion was not only a drug rip-off, but also a planned and deliberate murder. Alternatively, they assert that Mr. Kennedy was killed at a time when he was forcibly confined – his hands duct-taped behind his back – and that his killing was, in the circumstances, constructive first degree murder. That Mr. Cain is culpable for some offence is not a matter of significant debate. Mr. Cain’s level of culpability is, however, very much in issue.

[18] Almost invariably, criminal offences in Canada have both a mental element and a conduct element. The requisite mental element varies across offences defined in the Criminal Code. Offences do not all require the same intent. Some offences are described as offences of general intent, while others are described as being offences of specific intent. These concepts were recently the subject of a very helpful discussion by Moldaver J. in R. v. Tatton, 2015 SCC 33. It is not necessary, for the purposes of this decision, to explore the concepts beyond the following brief observations. Culpability for manslaughter and murder both require that an accused participated in an unlawful killing. But there are significant differences in terms of the requisite states of mind connected to the offences. Culpability for manslaughter requires only that the unlawful conduct that resulted in death was objectively dangerous. Culpability for murder, on the other hand, requires that the accused specifically intended to kill, or intended to cause bodily harm that he knew was likely to result in death and he was reckless as to whether death ensued.

[19] It is not immediately apparent, on the basis of the current evidentiary record, how the evidence of a cardiologist might be relevant to Mr. Cain’s level of culpability. Mr. Cain’s heart condition, which I will describe in a moment, results in poor oxygenation of his blood (a condition known as hypoxemia). Poor oxygenation of the blood can readily lead to poor oxygenation of the tissues (a condition known as hypoxia), which can manifest in, amongst other things, poor physical stamina and early and easy fatigue. One might be forgiven for anticipating that Dr. Colman would be asked to testify about Mr. Cain’s capacity to engage in the type of physical violence that occurred in Mr. McKelvey’s home on the night of October 19, 2011.

[20] Mr. Cain’s counsel insist, however, that Dr. Colman will not testify that Mr. Cain did not have the capacity to perform the violent acts alleged to have occurred in Mr. McKelvey’s home. Rather, Mr. Cain’s defence will include evidence tending to raise a reasonable doubt about whether he had the specific intent to kill on the night in question. Hypoxia, you see, can also manifest in impairments of mentation. It is anticipated that Mr. Cain will testify that he was, during the commission of the offences, experiencing some form of hypoxia-related mental impairment and in the result, did not form the specific intent to kill.

[21] In the circumstances, Dr. Colman is expected to testify about (1) the specifics of Mr. Cain’s congenital heart disease; and (2) the manifestations of his disease, with emphasis on how exertion-induced hypoxia may result in impaired mentation, such as confusion and/or lack of concentration. Should Mr. Cain testify about experiencing impaired mental functioning on October 19, 2011, one might reasonably expect that his description will be put to Dr. Colman and that Dr. Colman will be asked if his symptoms, as described, are reasonably consistent with exertion-induced hypoxia.

D. The Expert’s Report

[22] Dr. Colman authored a report regarding Mr. Cain, dated October 4, 2012. His counsel delivered the report to the Crown and to other defence counsel in November 2013 - well before the commencement of the trial.

[23] It is notable that the report was initially delivered for use on a pre-trial application.

[24] This trial is, in fact, a re-trial. The trial began initially in early 2014 but was aborted when Mr. Cain’s counsel fell ill. Prior to the commencement of the first trial, Mr. Cain brought a Michalowsky[^1] application – essentially a request for a judicial stay of proceedings based on the assertion that an accused person is suffering from such serious health concerns that the continuation of the prosecution against him or her would be an abuse of process. In this instance, Mr. Cain was prepared to enter a guilty plea to the included offence of manslaughter and argued that it would be an abuse of process for the Crown to proceed to litigate beyond that plea, given his serious health problems and the health risks that a trial posed to him. His application was rejected by Brown J. who presided over the first trial.

[25] Dr. Colman’s report was delivered in connection with the Michalowsky application. He made the following observation, at page two of his report, about the purpose for which it had been prepared:

I understand that the purpose of my report is to explain Mr. Cain’s medical condition and offer a medical opinion regarding his prognosis and his estimated life expectancy.

[26] The report is eight pages in length, though it has a number of attachments, bringing the whole package to thirty-eight pages. One of the attachments is a copy of an exercise test report (the “6-Minute Walk Test) dated August 22, 2011. I will come back to this exercise test later in this ruling.

[27] It must be said that Dr. Colman’s report clearly satisfied the purposes for which it was prepared. It explained Mr. Cain’s medical condition and it included an opinion regarding his prognosis and estimated life expectancy. It contained no indication of any symptoms purportedly experienced by Mr. Cain on October 19, 2011, nor any hint of an opinion about whether any such symptoms might be connected to, or explained by, his heart disease.

[28] Dr. Colman commenced his discussion of Mr. Cain’s medical condition with a description of the basic structures of a normal heart. He said a normal heart consists of four chambers: two that receive blood and two that pump. The chambers that receive blood are called atria and the pumping chambers are called ventricles. Put simply, the right atrium receives blood from the body via the superior vena cava. The right ventricle receives blood from the right atrium and pumps it into the lungs via the pulmonary artery. The blood gives off carbon dioxide waste and becomes oxygenated in the lungs, then returns to the left atrium of the heart via the pulmonary vein. The left ventricle receives the oxygenated blood from the left atrium and pumps it out to the body via the aortic artery.

[29] Mr. Cain does not have a normal heart. Mr. Cain’s aorta arises from his right ventricle instead of his left. His pulmonary artery arises from his left ventricle instead of the right. In other words, his plumbing is reversed. His right ventricle is underdeveloped and essentially only his left ventricle is functional. He has septal defects (holes) in the wall separating his ventricles. In his heart, oxygenated and deoxygenated blood mix in his left ventricle. The left ventricle pumps that mixed blood out to the lungs via the transposed pulmonary artery and to the body through the holes that flow into his right ventricle, which functions merely as a conduit to his aorta.

[30] The upshot of the defects is that Mr. Cain’s heart pumps blood to his organs and tissues that is significantly less oxygenated than would normally be the case. His resting oxygen is in the range of 85% or less, compared to normal values of 98-100%.

[31] Dr. Colman went on to describe some of the ways in which Mr. Cain’s disease manifests in his daily life. He said that Mr. Cain’s heart defects have led to poor exercise tolerance all his life, poor energy and an inability to concentrate that severely interfered with his schooling. It is not clear in the report, but presumably these facts, as set out by Dr. Colman, are based on self-reporting from Mr. Cain. That said, the matter of poor exercise tolerance is backed up by data from exercise testing done at the Cardiac Centre. The 6-Minute Walk Test I mentioned earlier was administered about two months prior to the alleged offences in this case. Mr. Cain could walk only 470 metres in six minutes, which is 64% of the predicted distance for a person his age. During the course of the test, his oxygen saturation decreased from 83% to 53%.

[32] As I indicated, the report was prepared for the Michalowsky application. Dr. Colman indicated that he was asked to comment on the following:

(a) The limitations one could expect on Mr. Cain’s ability perform functions such as those requiring physical strength, playing sports and endurance:

• He said Mr. Cain’s ability would be severely limited;

(b) The manifestations one might see in regard to his ability or lack thereof to do some of those physical functions:

• He said he would anticipate – and has observed – early and easy fatigue, increased cyanosis (indicating low blood oxygen level), mental confusion, and with enough stimulation, the possibility of provoking heart rhythm disturbances which could lead to fainting;

(c) Mr. Cain’s prognosis:

• He said Mr. Cain has a poor prognosis in the intermediate term. Premature ventricular failure is expected. As he deteriorates over time, there will be an expected further reduction in exercise tolerance, progressive reduction in oxygen concentration in his blood, which would manifest detrimentally on mentation and physical stamina, amongst other things.

[33] The purpose for which Dr. Colman’s report is now being offered is not the same as he identified on October 4, 2012. Then, it was to “explain Mr. Cain’s medical condition and offer a medical opinion regarding his prognosis and his estimated life expectancy”. Now, its purpose is perhaps better described as “explaining Mr. Cain’s medical condition and offering a medical opinion regarding the effects of hypoxia on his mental functioning”.

[34] Dr. Colman was not asked, in relation to the preparation of his October 4, 2012 report, to comment specifically about how exertion-induced hypoxia might be associated with impaired mentation. In the result, it is not surprising that Dr. Colman’s report is not particularly detailed in terms of the way(s) in which Mr. Cain’s heart disease impairs his mental functioning.

[35] That said, there are at least four instances in Dr. Colman’s report where he addressed the impact of poor oxygenation on mental functioning:

(i) Page 4:

Mr. Cain found that if he had to climb stairs to reach classrooms in high school, as was necessary because of rotating classes, it tended to take him up to 20 minutes after the beginning of a class before he could understand what the teacher was saying. I speculated that his history can be explained by the impairment of brain function triggered by the extremely low oxygen saturation brought on by having to climb the stairs.

(ii) Page 6:

…his brain function is intermittently impaired by his hypoxia (low oxygen content in the blood)…

(iii) Page 7:

I would anticipate, and have observed, early and easy fatigue, increased cyanosis (indicating low blood oxygen level), mental confusion, and with enough stimulation, the possibility of provoking heart rhythm disturbances which could lead to fainting.

(iv) Page 7:

As he deteriorates, one would expect progressive further reduction in exercise tolerance, progressive reduction in oxygen concentration in his blood which would manifest as detrimental impact on mentation and on physical stamina…

[36] The parties have very different positions about the sufficiency of the details provided in Dr. Colman’s report, in respect of the evidence he is expected to provide.

III

The Positions of the Parties

[37] The notice delivered by Mr. Cain’s counsel of the intention to adduce expert evidence from Dr. Coleman appears to have been provided less than the 30 days prior to trial as mandated by s. 657.3(3)(a), but no one appears to take issue with the timeliness of the notice. Certainly the report was provided in a timely way. The dispute here is not about whether the Crown has received adequate notice. It is about whether the Crown has received adequate particulars concerning the evidence to be adduced through Dr. Colman.

[38] The Crown asserts that Dr. Colman’s report is not sufficiently case-specific to meet the requirements of s. 657.3(3). The information contained in the report is, in the Crown’s submission, too general.

[39] In the Crown’s view, the report addresses brain impairment only in two areas: (1) concentrating on school work; and, (2) difficulty maintaining employment due to intermittent impairment of brain function. The report fails, however, to give any indication as to how this information connects to the case at bar. There is no indication as to what specific symptoms one might reasonably expect to see associated with hypoxia or under what circumstances one might expect to see them. There was no cognitive testing following the 6-Minute Walk Test, nor frankly, at any other time.

[40] The Crown submits that it “doesn’t have the slightest idea” what Dr. Colman’s evidence will be. They do not know what symptoms Mr. Cain is going to describe in his testimony, nor how those symptoms might be connected to Mr. Cain’s heart disease. The report, in the circumstances, does nothing to further the goals of s. 657.3(3) and, as such, fails to meet its requirements.

[41] Mr. Cain’s position is that Dr. Colman’s report identifies, in broad strokes, the areas in which he will testify. In particular, it describes Mr. Cain’s congenital heart defect in clear terms; it describes the impact of his heart disease on his ability to perform physical or athletic functions; it describes the effect of physical exertion on Mr. Cain’s oxygen saturation; and it identifies the fact that low blood oxygenation can result in confusion, inability to concentrate and other impairments of mental functioning.

[42] Dr. Colman will not be asked, according to Mr. Cain’s counsel, to opine about (1) whether Mr. Cain was physically capable of performing the acts he is alleged to have committed on October 19, 2011; or (2) whether he was capable of forming the specific intent to kill on October 19, 2011.

[43] Ms. Symes submitted that Dr. Colman will not be asked to testify outside of the four corners of his report. But, she added, it is her position that counsel are permitted to flesh out the details of the areas covered in his report. In other words, what is required by s. 657.3(3) is an outline of his evidence, not all the details. In her submission, the report goes beyond what is required.

[44] No other counsel took a position on the motion.

The Legal Framework

[45] Assessing the sufficiency of the content of the expert’s report (or summary) requires, in my view, a consideration of the following factors:

(a) The specific wording of s. 657.3(3);

(b) Disclosure obligations of accused persons at common law and the manner in which s. 657.3(3) modifies those obligations; and

(c) The objectives of the section.

[46] I will consider these factors in turn.

Section 657.3(3) provides limited, but significant, guidance in terms of content

[47] Beyond the requirement that the expert’s report or summary contain an indication of the expert’s opinion and the grounds for the opinion, s. 657.3(3) is silent about what level of detail must be provided of the evidence expected to be adduced from the expert. But this guidance, while limited, is important. The demands of the section are phrased in basic terms: what opinion will the expert offer, and why? Clearly, the report or summary must cover at least those basics.

[48] For the reasons that follow, my view is that once those basic demands have been satisfied, nothing more should be compelled by way of defence disclosure. The amount of detail required to satisfy the “why” question may vary, considering the demands and exigencies of each individual case and having regard to the objectives of the section. But the requirements of s. 657.3(3) are expressed in basic terms and, in most cases, the basics should suffice.

The common law does not impose disclosure obligations on accused persons

[49] As I noted above, s. 657.3(3) modifies a long-standing principle of the common law that an accused person need not disclose any part of his or her defence to the Crown. This principle flows, of course, from the right of an accused not to self-incriminate. In R. v. Stinchombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, Sopinka J. affirmed that in contrast to the Crown’s disclosure obligations, “the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution.” (para. 12).

[50] Until s. 657.3(3) was enacted, an accused had no obligation to deliver notice of an intention to adduce expert evidence. Moreover, at common law a defence expert’s report was considered privileged and was not subject to a disclosure obligation, though privilege could be lost by, for instance, calling the expert as a witness at trial: see R. v. Stone, 1999 688 (SCC), [1999] S.C.J. No. 27 (S.C.C.) (“Stone”).

[51] Section 657.3(3) was enacted following – and in response to – the decision of the Supreme Court in Stone.

[52] In Stone, the accused stabbed his wife to death. As part of his defence he asserted that he suffered from a dissociative episode brought on by insulting comments directed at him by his wife. In other words, he asserted that his wife’s insults triggered an automatistic state in which he was unable to form the specific intent to kill. In his opening address to the jury, his counsel outlined the nature of the defence and advised of his intention to adduce expert evidence from a psychiatrist, Dr. Janke. The trial judge compelled defence counsel to deliver a copy of Dr. Janke’s report to the Crown immediately following the opening address. The compelled disclosure was one of the grounds of appeal.

[53] Binnie J. held that any privilege in the report was waived as a result of reference to it in the opening statement. Even if that had not been the case, he said, any privilege certainly would have been waived once Dr. Janke took the witness stand. He went on to observe that absent earlier disclosure of the report, “the Crown would have been entitled to stand the [accused] down before completing its cross-examination of him, and to recall him once they had been given an opportunity to consider the contents of the report.” (para. 99).

[54] The reasons of Binnie J. in Stone were in dissent, but on the issue of compelled disclosure, Bastarache J., who wrote the majority decision, stated only, “I concur with the reasons of Binnie J. on this ground of appeal.” (para. 228).

[55] It is easy to appreciate the disruption that may be caused to the trial process should the case for the defence be interrupted – potentially for a considerable period of time – to enable the Crown to consider the report of a defence expert and to potentially obtain its own expert’s report in response. Stone went so far as to describe some of the circumstances in which disclosure of a defence expert’s report could be compelled. But it did not go so far as to require disclosure at the commencement of the defence case. In response, Parliament enacted s. 657.3(3) which, as noted, does require disclosure of a defence expert’s report by the close of the Crown’s case.

[56] The intent of s. 657.3(3) is to reduce the chance that the Crown will be ambushed by an unexpected expert witness, resulting in potential delay and inefficiency. Whether receipt of a proposed expert’s report immediately before the commencement of the defence case goes far enough to reduce or eliminate surprise is a matter of scholarly debate. I note, however, that the timing obligation imposed on the defence must – and does – take into account the principle against self-incrimination, constitutionally guaranteed under s. 7 of the Charter of Rights and Freedoms. An accused must not be coerced into assisting in his or her own prosecution, and that may very well be the case should defendants be routinely required to disclose the contents of experts’ reports prior to the conclusion of the Crown’s case.

[57] All of this is to say that, in my view, while the provisions of s. 657.3(3) are expressly intended to enhance fairness and reduce disruption to the trial process, Parliament clearly did not intend to abridge the right of accused persons not to self-incriminate and clearly did not intend to substantially interfere with the common law rules as they relate to defence disclosure. The provisions of s. 657.3(3) are minimally intrusive on the right of the accused to hold his or her cards close to the vest. The disclosure obligations imposed by s. 657.3(3)(c) are, as I noted above, basic ones. They are expressed in general and not detailed terms.

The requirements of s. 657.3(3) must be assessed with Parliament’s expressed purpose in mind

[58] Statutory provisions are to be interpreted in their entire context, in their grammatical and ordinary sense, and “harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Re Rizzo and Rizzo Shoes Ltd. 1998 837 (SCC), [1998] 1 S.C.R. 27, para. 21. Interpreting s. 657.3(3) is not particularly challenging in at least one sense. It expressly states that it was enacted “for the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses”. Its requirements must be assessed with these purposes in mind.

[59] Section 657.3(3) is, obviously, a disclosure provision. Disclosure is always a means to an end: R. v. Horan, 2008 ONCA 589, para. 26. The disclosure requirements created by the provision are limited and purpose-driven. They serve the ends of fairness, orderliness and efficiency. These ends are themselves associated with the overarching goal of promoting a process that best serves the truth-finding function of the trial.

[60] While s. 657.3(3) compels, in my view, only basic disclosure, the basics provided must be sufficient to meet the objectives of the section. Sufficiency must be addressed on a case by case basis.

[61] Current jurisprudence offers relatively little guidance on the issue of sufficiency. The issue was addressed by Moen J. in R. v. Mousseau, 2003 ABQB 624, but in the context of a report prepared by a Crown expert. It was also addressed by Eberhard J. in R. v. G.E.M., [2003] O.J. No. 5713, this time from the perspective of a defence expert’s report.

[62] In Mousseau, the dispute was about the sufficiency of the notice provided by the Crown of an expert it intended to call during a dangerous offender application. Moen J. held, sensibly in my view, that the sufficiency of the report provided must be assessed contextually. What is reasonable is dependent on the circumstances of the individual case. He also observed that the analysis must take into account the elements of fairness, orderliness and efficiency. Fairness, he said, applies both to the accused and to society at a large. Orderliness and efficiency aim to avoiding undue delays, as well as the wasting of time and resources. The common thread running through all three elements, in his view, was the desire to avoid surprises and the consequent delays that may be occasioned by them.

[63] In G.E.M., the dispute was about the sufficiency of the materials provided by defence counsel purportedly in compliance with s. 657.3(3)(c). Defence counsel intended to adduce expert evidence from a psychiatrist. He delivered a compendium of “psychiatric literature” in place of a report or summary as mandated by the Criminal Code. In finding the compendium insufficient, Eberhard J., adopted the view of Moen J. from Mousseau, that the underlying purpose of s. 657.3(3) is to avoid surprises in expert testimony. The report or summary provided must, she said, give the opposing party an opportunity to prepare properly for cross-examination and to obtain expert evidence, if necessary, to call in rebuttal.

[64] Taking into account my own views, as expressed above, and the assistance offered by the limited jurisprudence on the point, I would distill the following factors as generally applicable to the assessment of the sufficiency of a report or summary delivered under s. 657.3(3) in relation to a defence expert:

(a) The necessary particularization of a defence expert’s report or summary is always going to be a case specific assessment;

(b) The expert’s report or summary must provide an indication of the opinion of the expert and the grounds for the opinion. These basic requirements flow directly from the language of s. 657.3(3)(c);

(c) The opinion and its supporting grounds must be sufficiently detailed to meet the objectives of s. 657.3(3): fairness, orderliness, and efficiency in the trial process. But it must be remembered that at common law, a defendant has no obligation of disclosure. The obligations imposed on a defendant by s. 657.3(3) are basic ones and a defendant should not be compelled to provide more than is reasonably necessary to meet the objectives of the section;

(d) The ultimate goal of s. 657.3(3) is to avoid surprise. That goal will be met if sufficient detail is provided to reasonably permit the Crown to prepare for the cross-examination of the expert – and the accused, if applicable – and to consider any necessary rebuttal evidence.

[65] With the foregoing considerations in mind, I turn now to the issue of whether Dr. Colman’s report of October 4, 2012 meets the requirements of the section.

IV

Discussion

[66] As I have indicated, the analysis must be done contextually, having regard to the particular circumstances and needs of this trial.

The Case Specific Features of this Trial

[67] The following are the unique features of this trial that, in my view, bear on the elements of fairness, orderliness and efficiency and the reasonableness of the report provided by defence counsel in relation to the anticipated evidence of Dr. Colman:

(a) This is a long trial. It was originally scheduled to be completed by the end of June, 2015. The jurors were told as much. It is well beyond that date and appears unlikely to be completed until early October 2015;

(b) There have been numerous starts and stops, as well as days when the jury has been sent home early – even at the start of the day at times – while various legal issues have been litigated;

(c) No evidence has been heard since July 16, 2015, as a result of legal issues arising at the end of Mr. Gillard-Gatza’s case which relate to, and must be determined prior to the commencement of Mr. Cain’s case. His case is not going to commence now until August 10, 2015 because of dates that jurors are unable to sit;

(d) During jury selection, the panel member who would ultimately be selected as juror number four, advised the court that she was pregnant, with a due date of October 7, 2015. The jury has been told that this case may not get into their hands for deliberations until the first week of October. They have advised the court, by written note, that they want to find a way for juror four to see the case through to the end. They have indicated a willingness to give up or re-arrange holiday time or other commitments, to achieve any efficiencies they can, in an effort to increase the likelihood that the case will be completed before October 7, 2015;

(e) This is, in short, a case that can ill-afford further or unnecessary delays; and,

(f) The report of Dr. Colman was delivered almost two years ago. Notice that Mr. Cain was intending to adduce evidence from Dr. Colman in the course of his defence, under s. 657.3, was provided to the Crown on April 25, 2015. The Crown wrote to Mr. Cain’s counsel on June 4, 2015 to express concern about the scope of Dr. Colman’s evidence. Unfortunately, the Crown’s application to address the sufficiency of Dr. Colman’s report was not delivered until July 19, 2015. This observation is not meant to criticize the Crown, but where the governing issues are fairness, orderliness and efficiency, they are relevant facts.

Dr. Colman’s Opinion is Absent from his Report

[68] A particularly tricky aspect of this application is the fact that Mr. Cain has not yet testified and it is not immediately clear, therefore, in the evidentiary record at least, how Dr. Colman’s evidence is going to be relevant.

[69] It is expected that Mr. Cain will testify that he experienced symptoms of mental impairment while inside the McKelvey residence. There is no evidence that Dr. Colman knows what Mr. Cain is likely to say about those symptoms. Dr. Colman has not yet rendered an opinion about whether any symptoms experienced by Mr. Cain on the night of October 19, 2011 are consistent with exertion-induced hypoxia. This is not a case where Dr. Colman has obtained his patient’s report regarding symptoms purportedly experienced and then offered an opinion on the basis of the symptoms as described. Yet, apparently, that is at least one part of what he will be called upon to do at trial.

[70] In this instance, Dr. Colman is expected to testify about five general topics:

(a) The details of Mr. Cain’s congenital heart disease;

(b) The connection between Mr. Cain’s heart disease and the low oxygen saturation levels in his blood;

(c) Mr. Cain’s risk of experiencing exertion-induced hypoxia;

(d) The way in which hypoxia can impair mental functioning; and,

(e) Ultimately, he will be asked to render an opinion about whether any symptoms of mental impairment on the night of October 19, 2011 as described by Mr. Cain can be explained by exertion-induced hypoxia (or some other manifestation of his heart disease).

[71] I am satisfied that Dr. Colman’s report amply addresses the areas described in paragraphs (a), (b) and (c). The results of the 6-Minute Walk Test clearly demonstrate a precipitous drop in Mr. Cain’s oxygen saturation levels even with modest exertion.

[72] I am also satisfied that Dr. Colman’s report contains sufficient details of the manner in which hypoxia can impact on mental functioning. The report could have more directly addressed this issue and could have provided more fulsome details. But of course it was not prepared for that purpose. Still, the Crown has a clear indication now of where the evidence is headed. It will involve the effects of exertion-induced hypoxia on mental functioning. The Crown is able to conduct its own inquiries and consult with specialists, as it sees fit, for the purpose of preparing to cross-examine Mr. Cain and Dr. Colman about this issue.

[73] On the other hand, with respect to the ultimate opinion that Dr. Colman will be asked to provide, his report is entirely silent. He has not expressed any opinion at all about whether Mr. Cain’s symptoms, if any, as experienced on October 19, 2011 are consistent with exertion-induced hypoxia.

[74] Dr. Colman’s report fails, in the circumstances, to meet one of the basic requirements of s. 657.3(3)(c) – to provide an indication of the opinion of the expert. His ultimate opinion remains undisclosed.

No Remedy is Required in the Circumstances

[75] Notwithstanding the failure of Dr. Colman’s report to satisfy one of the basic requirements of s. 657.3(3), I am not persuaded that I should make any order at this time.

[76] The options available to me, having found that s. 657.3(3)(c) has not been complied with, are set out in subsections (4) and (5). They include, amongst other remedies, granting the Crown an adjournment, ordering further particulars to be provided from the expert, and/or ordering the recalling of witnesses for further examination if necessary. They do not include a prohibition on the testimony of the proposed expert: R. v. Horan, as above, at para. 29.

[77] There are several reasons why I am not persuaded that I should make any remedial order at this stage:

(a) This application came up very late in the day. I have no idea how long it might take to arrange for Dr. Colman to meet with Mr. Cain again, to review his symptoms with him, and to prepare a further report or summary. Even if counsel relayed hypothetical symptoms to Dr. Colman and asked for his opinion about those symptoms, I have no idea how long it might take to obtain such an opinion. Mr. Cain’s case is scheduled to commence in a little over a week. For the reasons set out above, we can ill-afford further delays;

(b) Mr. Cain’s counsel have represented to the court that Dr. Colman will not stray from the four corners of his report. The concept of an expert staying within the “four corners” of his or her report was explained by the Court of Appeal in Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA), 51 O.R. (3d) 97. There, the court described the doctrine as follows (para. 38):

…While testifying, an expert may explain and amplify what is in his or her report but only on matters that are "latent in" or "touched on" by the report. An expert may not testify about matters that open up a new field not mentioned in the report.

The Marchand case was decided in the civil context. In a criminal prosecution, an accused person has a constitutionally protected right to make full answer and defence. I cannot circumscribe Dr. Colman’s evidence as a court may be able to do in a civil proceeding. But Mr. Cain’s counsel said that the evidence given by Dr. Colman will fall within the four corners of his report. I am entitled to rely on counsel’s representations. I am entitled to expect for the purposes of this ruling, based on counsel’s representations, that whatever opinion Dr. Colman is going to be asked to render on the basis of any symptoms described in evidence by Mr. Cain, will be consistent with the substance of his report as delivered. In other words, he will not be asked to render an opinion that involves a new field not touched upon in the report;

(c) I am satisfied, based on my reading of the report, and on counsel’s representations, that even if the ultimate opinion to be rendered by Dr. Colman is not contained in the report, the grounds that will support the opinion are; and,

(d) On balance, I am not persuaded that, even under the current circumstances, the Crown is really going to be caught by surprise, or that significant delays are likely to be occasioned. I have to weigh the prospect of a delay caused by not making an order against the prospect of a delay caused by making the order requested by the Crown. In my view, I prefer the odds associated with not making an order.

[78] In the final analysis, the risk of surprise is not really associated with Dr. Colman’s evidence. It is associated with Mr. Cain’s evidence. The Crown does not know what symptoms he is going to describe. He may very well describe symptoms entirely unrelated to exertion-induced hypoxia, rendering Dr. Colman’s evidence irrelevant. If his symptoms, as described, are reasonably related to his heart disease, but not generally in keeping with the type of impairments described by Dr. Colman, then of course the Crown may need further time to prepare to cross-examine Mr. Cain and Dr. Colman. In that case the objectives of s. 657.3(3) will be frustrated. But I believe the risk that Mr. Cain will describe symptoms that are not consistent with the content of Dr. Colman’s report to be slight. Mr. Cain is not likely to testify that he suffered a psychotic episode totally unrelated to anything Dr. Colman has described in his report. Certainly his lawyers don’t expect that. They expect he is going to describe symptoms similar to those already identified by Dr. Colman.

[79] Mr. Cain’s counsel have not produced a further and issue-specific report because they don’t want to disclose any of Mr. Cain’s anticipated evidence. That is obvious and understandable. But while understandable, their approach in this instance is not compliant with the basic provisions of s. 657.3(3). In another case that same approach might very well be met with a remedial order of some sort. That said, I am not persuaded that there is any serious risk of surprise here. Dr. Colman’s report makes it clear that Mr. Cain has a congenital heart defect and it provides a detailed description of the defect. It also makes it clear that Mr. Cain frequently suffers exertion-induced hypoxia. It includes the results of a 6-Minute Walk Test that demonstrate with clarity the extent of that exertion-induced hypoxia. It further makes it clear that hypoxia can result in mental impairments, which include confusion and an inability to concentrate. The report has been in the hands of the Crown for more than a year and a half. The Crown has had three months’ notice that Mr. Cain intends to adduce evidence from Dr. Colman.

[80] There is evidence in the record that the accused parked on a darkened side street called Colonial Road, where they donned their masks and gloves. They walked from Colonial Road to Mr. McKelvey’s house which was located at 1028 South Lake Road, a distance of just over 200 metres. They walked up Mr. McKelvey’s driveway to his residence. He had a long driveway, something like 100 metres. The total distance to get to the house was likely, therefore, about 300 metres.

[81] There is evidence in Dr. Colman’s report that Mr. Cain can walk 470 metres in six minutes. Assuming consistent pace over that six minutes, he walks at a pace of about 78 metres per minute. It would have taken him, at that pace, almost four minutes to walk from the car on Colonial Road to Mr. McKelvey’s residence. The results of the 6-Minute Walk Test demonstrate that his oxygen saturation level after four minutes of walking was at 65%.

[82] It will not be surprising if Mr. Cain testifies about the walk to the McKelvey residence. Given the representations that his counsel have made, it will not be surprising if he describes symptoms that include confusion, disorientation, inability to focus, or the like. That will surely not come as a surprise to the Crown and surely the Crown has already anticipated and prepared for as much. It will not come as a surprise if Dr. Colman is asked if those symptoms are consistent with hypoxia. Indeed, at this point it would be surprising if Dr. Colman were not asked about symptoms associated with exertion-induced hypoxia.

[83] I see very little mystery in all of this. If it turns out I am wrong and indeed the Crown is legitimately taken by surprise, then there are remedies that are available. In the meantime, I am not, as I said, presently persuaded to make any order.

There Remains a Need for a Focussed Mohan Voir Dire

[84] This ruling should not be viewed as providing any conclusions about whether Dr. Colman is a properly qualified expert. The Crown does not contest Dr. Colman’s qualifications as a cardiologist. The Crown has, however, raised an issue about whether, as a cardiologist, he is qualified to provide an opinion regarding the effects of hypoxia on brain functioning. I do not have the answer to that issue of course and a focused Mohan voir dire will be required prior to Dr. Colman’s testimony in order to satisfy the court that he is qualified to provide the proposed evidence on hypoxia-related brain impairment.

Boswell J.

Released: July 30, 2015

[^1]: R. v. Michalowsky, [1991] O.J. No. 3611
[^2]: R. v. Mohan 1994 80 (SCC), [1994] 2 S.C.R. 9