COURT FILE NO.: 13325/13

DATE: 201508­­13

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 Nathaniel Cain
David G. Bayliss for Raphael Guerra

HEARD: August 13, 2015

RULING No. 1 on Mohan[^1] Voir Dire

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.

[1] Mr. Cain is one of four men on trial for murder and attempted murder. He is in the process of calling defence evidence. He proposes to call two witnesses: himself and his cardiologist, Dr. Jack Colman. Dr. Colman’s evidence is, he submits, relevant (1) to explain the nature of Mr. Cain’s congenital heart disease; and (2) to provide an expert opinion that symptoms of mental impairment Mr. Cain described in his testimony as having occurred during the commission of the offences are reasonably explained by his congenital heart disease.

[2] Dr. Colman’s evidence is an issue of significant contention. I have already ruled on a Crown application for a further and better expert’s report under s. 657.3 of the Criminal Code. I dismissed that application for reasons reported at R. v. Hong, 2015 ONSC 4840.

[3] Dr. Colman is scheduled to testify tomorrow. The Crown has raised three significant issues with respect to the admissibility of the proposed testimony of Dr. Colman. First, the Crown argues that Dr. Colman may not be properly qualified to give opinion evidence about impaired mentation. Second, the Crown submits that Dr. Colman’s proposed opinion is not relevant to the live issues in the case, in view of Mr. Cain’s testimony. Third, even if relevant, it is not sufficiently reliable to meet the threshold test for admissibility as articulated by the Court of Appeal in R. v. Abbey, 2009 ONCA 624 (“Abbey”).

[4] As Doherty J.A. indicated in Abbey, “the determination of the scope of the proposed expert opinion evidence and the manner in which it may be presented to the jury if admissible will be made after a voir dire.” (para. 63). The parties are not agreed on the nature and scope of the voir dire to be conducted in relation to the proposed evidence of Dr. Colman. This ruling relates to the narrow issue of the procedures to be followed on the voir dire.

[5] An admissibility inquiry is never conducted in a vacuum. Even the narrow issue of the procedure to be followed must be determined in the context of the particular factual matrix of the case before the court. For that reason I will briefly set out the nature of the offences, the history of the proceedings to date, the general nature of the defence of Mr. Cain, and the substance of the expert opinion evidence on offer.

The Offences

[6] On October 19, 2011, the four defendants drove together from Scarborough to Minden. Mr. Guerra was the driver and by all accounts he remained with his car at all material times. The other three defendants conducted a home invasion at the residence of Justice McKelvey. He was a local pot dealer. When the three invaders entered his house, they were masked and armed with a baseball bat, bear spray, and a roll of duct tape. When they left, they stole about four pounds of marijuana and about $350 in cash.

[7] Mr. McKelvey was not alone when the invaders entered. He was with a friend, Ryan Kennedy. During the invasion Mr. Kennedy was bludgeoned to death. A pathologist has testified that he died from blunt force trauma to his head. That trauma appears to have been inflicted by the baseball bat and/or a heavy metal pellet rifle that Mr. McKelvey had resting against a wall in his living room, which is where the killing occurred.

[8] Accounts vary as to whether Mr. Cain struck Mr. Kennedy with the bat or the rifle and, if so, how much force he used. In other words, the role Mr. Cain played in the killing is a live issue.

[9] A central issue in the trial relates to the intentions of the accused. Did each of them have the state of mind necessary for a murder conviction? Did each of them intend that the occupant(s) of the house be killed?

The History of the Proceedings

[10] Pre-trial motions commenced in mid-March 2015. The trial proper began with jury selection a month later. It was initially estimated that the trial would be completed by the end of June, 2015.

[11] The Crown’s case was concluded on June 29, 2015. All defendants joined in a directed verdict application which was heard over three days. I dismissed that application, save in relation to one aspect of the Crown’s case against Mr. Guerra. Mr. Strathman began the case for Mr. Hong on July 7, 2015 and concluded it the following day.

[12] Mr. Gillard-Gatza’s case commenced on July 8, 2015. It closed the following week, on July 16, 2015.

[13] A number of applications were then heard in relation to Mr. Cain’s case. The Crown brought an application to compel Mr. Cain to deliver a further and better medical report from Dr. Colman, pursuant to s. 657.3 of the Criminal Code (the “657 application”). Mr. Cain brought a Corbett[^2] application to restrict cross-examination on his criminal record. The Crown and some defence counsel opposed that application. Mr. Lyon brought an application on behalf of Mr. Gillard-Gatza to introduce disreputable conduct evidence against Mr. Cain, depending on how Mr. Cain testified in chief. The Crown similarly applied for leave to introduce propensity evidence, but not conditionally like Mr. Lyon’s application. Argument on the various applications was concluded on July 28, 2015.

[14] A ruling was released on the 657 application on July 30, 2015 and on the Corbett and propensity evidence applications on August 4, 2015. In the ruling on the 657 application, I directed that there was to be a focussed voir dire on the issue of the qualification of Dr. Colman. Specifically as to whether he was qualified to provide opinion evidence about the effect of hypoxia on mental functioning. I did so because the Crown indicated, during the argument of the application, that they took issue with the witness’ qualification to give that kind of evidence.

[15] Two jurors were not available during the first week of August and accordingly the court did not sit the week of August 3, 2015. Court was reconvened on August 10, 2015, when Mr. Cain’s evidence commenced.

[16] Mr. Cain’s counsel made an opening statement to the jury on August 10, 2015 and indicated that Dr. Colman would be called to testify on Friday August 14, 2015. Following the opening statement, Mr. Cain’s testimony began.

[17] Dr. Colman has been summonsed for a number of earlier dates, but given the delays in reaching Mr. Cain’s case, he has had to be rescheduled, to his dismay. He indicated to counsel that he could make himself available on Friday August 14 and Monday August 17, 2015. It was agreed among counsel that his evidence could “play through” the evidence of Mr. Cain, should that be necessary.

[18] On August 12, 2015, after having the benefit of having heard Mr. Cain’s evidence in chief and some of his cross-examination, the Crown advised the court that it would be taking the position that Dr. Colman’s evidence is not admissible at all, on the basis that it lacks a proper evidentiary foundation, and that it should be excluded as too inherently unreliable to put before the trier of fact.

[19] There ensued considerable argument between counsel as to the timing of the admissibility voir dire and its scope.

Mr. Cain’s Defence

[20] Mr. Cain’s defence includes, in part, evidence tendered for the purpose of raising a reasonable doubt about whether he had the requisite state of mind at the time the offences were committed.

[21] Mr. Cain has given direct evidence that he did not intend to kill anyone. He said he intended only to participate in a drug rip-off.

[22] Mr. Cain testified about the nature and effects of his heart disease. He said that at times, when he does something physical, he gets tired and has to stop. He gets dizzy. He gets confused. At times he has passed out.

[23] He said that his heart disease affects his ability to communicate. It affects his ability to concentrate; to absorb information; and to process what’s going on around him. He sometimes doesn’t think clearly. He can be at a loss for words.

[24] In terms of the events of the night of October 19, 2011, he said that when he went into the McKelvey residence he began to grapple with Mr. Kennedy. While doing so, Mr. Gillard-Gatza came to his aid and struck Mr. Kennedy with the bat, knocking him unconscious.

[25] He said that as he was grappling with Mr. Kennedy, he was scared. His adrenaline was going. He was short of breath because he’d just come from the walk to the house. He was “fuzzing out”. After Mr. Kennedy was struck with the bat, things are really blurry for him. He remembers walking around, filling a bag with weed, pulling wires out of the wall, and talking to Justin McKelvey.

[26] He went on to testify that during all the activity he was feeling adrenaline. At parts he was confused. His mind was “fogging out”. He knows things were going on, but he is not sure what was happening. He was on the brink of passing out. He was “fuzzing out”. He was lost and confused.

[27] Significantly, he described his mental state while in the McKelvey residence as “completely different” than what he used to feel in school, when he had difficulty concentrating and processing information. He said that during the offences, he was still moving, his adrenaline was up, and he was scared.

Dr. Colman’s Proposed Evidence

[28] Dr. Colman prepared a report in 2012 relating to Mr. Cain’s congenital heart disease. He described the purpose of his report as follows:

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.

[29] The report appears to have been prepared initially to support a Michalowsky[^3] application, which is essentially a request for a judicial stay of proceedings based on the adverse health condition of the accused. Dr. Colman’s report describes Mr. Cain’s heart condition in detail. It touches upon the ways in which the condition is manifested on a day-to-day basis, including, to a limited extent, the manner in which it may impair mental functioning. Specifically, but briefly, Mr. Cain’s heart condition results in reduced oxygen saturation in his blood – a condition known as hypoxemia. When Mr. Cain exerts himself physically, his oxygen saturation can drop even further, leading to easy fatigue and, at times, mental impairments like confusion or a lack of concentration.

[30] Dr. Colman has not provided a report that gives any indication that he has been asked to comment on Mr. Cain’s description of the symptoms he says he experienced while inside Mr. McKelvey’s residence. For this reason the Crown moved for an order, under s. 657.3 of the Criminal Code, compelling Mr. Cain’s counsel to produce a further and better report. I dismissed that application for a variety of reasons, which I need not repeat here. To be clear, that application was restricted to the sufficiency of the report served by Mr. Cain’s counsel under s. 657.3 of the Criminal Code. It did not raise issues otherwise related to the admissibility of Dr. Colman’s evidence.

[31] During the course of the Crown’s 657 application, Mr. Cain’s counsel represented that Dr. Colman will not be asked to testify outside of the four corners of his report. He will, presumably, however, be asked to opine about whether the symptoms described by Mr. Cain in his testimony are consistent with hypoxemia, or a related condition, hypoxia (reduced oxygen in the cells).

The Issues

[32] I am advised by Crown counsel that they have three principal concerns with respect to Dr. Colman’s evidence:

(i) He may not be qualified to provide the proposed opinion;

(ii) His proposed opinion is not relevant to the live issues in the case, having regard to Mr. Cain’s evidence; and,

(iii) His proposed opinion is not sufficiently reliable to justify admission.

[33] It is not necessary for me to resolve the issues raised by the Crown at this preliminary stage. Instead, the narrow issue for me to decide today is what procedure should be followed on the admissibility voir dire. More to the point, to what extent should Dr. Colman be exposed to examination and cross-examination on the voir dire?

[34] The straightforward answer is that he should be examined and cross-examined to the extent necessary – and only the extent necessary – for me to understand and rule on the issues raised by the Crown. Teasing out just exactly what is necessary in the circumstances of this case, and in the context in which we find ourselves at this stage of the trial, is what the balance of these brief reasons addresses.

Discussion

[35] Doherty J.A. described expert opinion evidence in R. v. Abbey, as above, at para. 71, as follows:

Experts take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material. The trier of fact must then decide whether to accept or reject the expert's opinion as to the appropriate factual inference. Expert evidence has the real potential to swallow whole the fact-finding function of the court, especially in jury cases. Consequently, expert opinion evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balance of probabilities. (Internal citations omitted).

[36] The onus is, accordingly, on Mr. Cain, on a balance of probabilities, to establish the admissibility of the proffered opinion evidence.

[37] The court must be mindful of the purpose for which an admissibility voir dire is held in relation to expert opinion evidence (typically referred to as a “Mohan voir dire”). The purpose, broadly stated, is risk management. It was described by Cromwell J. in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (“White Burgess”), as follows, at para.18:

The point is to preserve trial by judge and jury, not devolve to trial by expert. There is a risk that the jury “will be unable to make an effective and critical assessment of the evidenceˮ… The trier of fact must be able to use its “informed judgment”, not simply decide on the basis of an “act of faith” in the expert’s opinion…The risk of “attornment to the opinion of the expertˮ is also exacerbated by the fact that expert evidence is resistant to effective cross-examination by counsel who are not experts in that field... The cases address a number of other related concerns: the potential prejudice created by the expert’s reliance on unproven material not subject to cross-examination…; the risk of admitting “junk science”…; and the risk that a “contest of experts” distracts rather than assists the trier of fact... Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money… (internal citations removed).

[38] The Crown described the real risk of harm in this instance as being the risk that the jury will hear evidence that is not relevant or probative or helpful, and subsequently have to be given an instruction that it has no evidentiary value.

[39] In Mohan, the Supreme Court created a framework in which to assess the admissibility of proposed expert evidence. The application of that framework was refined by Doherty J.A. in Abbey and further refined by Cromwell J. in White Burgess. Essentially, the court must approach the analysis in two steps (see White Burgess, paras. 23-24):

(a) First, the party proposing to call the expert evidence must establish the threshold requirements of admissibility. These include the four factors initially identified in Mohan: (1) that the evidence is logically relevant; (2) that it is necessary to assist the trier of fact; (3) that it is not subject to an exclusionary rule apart from the rule relating to expert opinion evidence; and (4) that it is tendered through a properly qualified expert;

(b) Second, the court applies its discretionary gatekeeping function. This is loosely described as a determination of whether the proffered opinion evidence is “worth the candle”. It involves conducting a cost/benefit analysis; a determination of whether the evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from its admission.

[40] Again, for the time being, the limited question for determination today is what is required, by way of an evidentiary record, in order to adequately conduct the analysis directed in Mohan and the cases that followed?

[41] As I said, the admissibility inquiry is not conducted in a vacuum. I have set out some of the context of the case above. By way of additional context, the following two important factors must be kept in mind when considering the contours of the admissibility voir dire:

(a) The expert evidence in issue is offered as part of Mr. Cain’s effort to make full answer and defence to the charges he faces. This is an important factor because risk management is qualitatively different with defence-led evidence, as is the threshold for exclusion. As McLachlin J., as she then was, held in R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577, at para. 43:

Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law.

(b) An accused person does not have an obligation of disclosure. As Sopinka J. in R. v. Stinchombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, para. 12, a defendant has no obligation to assist the Crown and is entitled to assume a purely adversarial role toward the prosecution. This factor cannot, of course, fetter in any way the exercise of the court’s gatekeeping function as mandated by Mohan. But it is a factor to be afforded some consideration when assessing the scope of the evidence that is genuinely necessary as part of the admissibility voir dire.

[42] Returning to the two stage analysis, it is clear that the Crown intends to advance arguments against admissibility at both stages.

[43] At the first stage, the Crown challenges the relevance of the evidence, its necessity to assist the trier of fact, and the qualifications of Dr. Colman to give the evidence. At the second stage, the Crown challenges the threshold reliability of the evidence.

[44] In my view, as a starting point, it will be necessary, during the voir dire, to establish exactly what the proposed opinion is. Mr. Cain’s counsel expressed concern that the Crown’s position is really an end-run around my ruling on the 657 application. I cannot say that that is the case, but what I can say is that on a voir dire directed at the admissibility of proposed opinion evidence, it should be clear, as a matter of record, what that proposed opinion evidence is. Ultimately, this is a different inquiry than the 657 application.

[45] As Doherty J.A. held in Abbey, at para. 63:

At the conclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible. He or she will also decide whether certain terminology used by the expert is unnecessary to the opinion and potentially misleading…Admissibility is not an all or nothing proposition. Nor is the trial judge limited to either accepting or rejecting the opinion evidence as tendered by one party or the other. The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to frame that opinion. (Internal citations omitted).

[46] It will be nigh impossible for me to identify with exactitude the scope of the proposed opinion, if I do not have a solid understanding of what exactly the proposed opinion is.

[47] Once the opinion on offer is clarified, however, the court will be in a position to readily assess the issues of relevance and necessity.

[48] Relevance, at this stage, means logical relevance. It involves a low threshold, requiring only a demonstration that proof of the fact offered in evidence, as a matter of human experience and logic, makes the existence of a material fact more probable than it would otherwise be: R. v. Candir, 2009 ONCA 915, para. 48.

[49] The court is well familiar with the live issues in this case. In my view, relevance and necessity can be determined without additional examination or cross-examination of Dr. Colman once the opinion is clearly identified.

[50] The next issue is whether Dr. Colman is qualified to state the opinion. The Crown accepts that Dr. Colman is a qualified cardiologist. The Crown does not accept that a qualified cardiologist may give opinion evidence about impaired mentation, particularly in view of the fact that Mr. Cain has stated in evidence that he was experiencing a spike in adrenaline during the commission of the offences – a factor not addressed by Dr. Colman in his report.

[51] Mr. Cain bears the onus of establishing the qualifications of his expert. Counsel may examine and cross-examine Dr. Colman about his qualifications.

[52] The real controversy, in terms of the examination of Dr. Colman during the voir dire, relates to the Crown’s assertion that, at stage two of the analysis, the opinion evidence of Dr. Colman ought, on balance, to be excluded.

[53] To make a determination at this second stage, it will be necessary for the court to have an appreciation of the factors that weigh in favour of admission, and those that weigh in favour of exclusion. I note that examination or cross-examination of Dr. Colman on the voir dire is not intended as defence disclosure, nor as an opportunity for Crown counsel to gain a more fulsome appreciation of the strengths and weaknesses of Dr. Colman’s evidence. It is intended to provide the court with a sufficient evidentiary basis upon which to make the determinations necessary to apply the Mohan analysis and to appropriately manage the risks presented by the introduction of expert opinion evidence.

[54] Referring again to Abbey, Justice Doherty confirmed that the procedures to be followed on the voir dire are for the trial judge to decide and that “sometimes the expert must be examined and cross-examined on the voir dire to ensure that the proposed evidence is properly understood.” (para. 63). I am confident that he meant understood by the court. A proper understanding of the evidence is necessary for the court to adequately exercise its gatekeeping function.

[55] I expect that the anticipated benefits of the proposed opinion evidence can be adequately and fulsomely articulated by Mr. Cain’s counsel without further examination of Dr. Colman. I also expect that Crown counsel’s argument will not be focussed on the benefits of the evidence. It is important to recall that the admissibility inquiry is a threshold inquiry only. When assessing the benefit of the evidence to the trial process, the court must keep in mind that the issue is only whether the evidence is worthy of admission, not whether it is worthy ultimately of being relied upon.

[56] In terms of its risks, there are a number of factors that may play into the argument, including, without limitation:

• The purported lack of probative value in light of Mr. Cain’s evidence to the effect that the symptoms he experienced in Mr. McKelvey’s home were completely different than anything he’d experienced in relation to his academic experiences. Dr. Colman’s report reflected, significantly, symptoms Mr. Cain reported experiencing while in high school and not while under conditions similar to those experienced in Mr. McKelvey’s home;

• The diminished probative value of the opinion evidence in view of the fact that Mr. Cain described feeling an adrenaline rush during the commission of the offences. Dr. Colman said nothing in his report on the effects of adrenaline on Mr. Cain’s condition;

• The Crown’s inability to cross-examine Dr. Colman on the 6-Minute Walk Test results contained in his report, which the Crown says is flawed and unreliable; and,

• Whether the evidence will have a tendency to be misleading, given what the Crown asserts is a lack of a proper evidentiary foundation.

[57] In my view, the court is in a sufficient position to assess the risk of prejudice – the costs associated with the introduction of the proposed opinion evidence – without the need for cross-examination of Dr. Colman on the voir dire.

[58] This is not complicated evidence. Moreover, the Crown in my view already has a sufficient evidentiary basis from which to muster its arguments about admissibility. The evidentiary record is clear in terms of Mr. Cain’s description of his symptoms. The parameters of Dr. Colman’s report are clear and his counsel have represented that he is going to testify within the four corners of that report. The specific opinion to be offered by Dr. Colman will be made clear during the voir dire. The foundation for that opinion will be limited to the evidence adduced at trial through other witnesses and the material contained in Dr. Colman’s report.

[59] Experts are frequently challenged about the foundation of the opinions they offer. The Crown has, according to their indication, significant ammunition to challenge the foundation of Dr. Colman’s opinion. A central question for determination on the voir dire is whether the Crown’s ammunition weakens the foundation so much that it crumbles and thereby tips the scale towards exclusion of the evidence. As I see it, the Crown is already in a position to make that argument and doesn’t require further cross-examination in order to do so.

[60] More importantly, in the final analysis, I am satisfied that no additional evidentiary foundation is required – apart from the clarification of Dr. Colman’s opinion and qualifications - to enable the court to understand the Crown’s argument and to fully appreciate the issues that need to be determined at this stage. For that reason, further cross-examination of Dr. Colman is not required, nor warranted.

Conclusion

[61] The onus is on Mr. Cain to establish, on a balance of probabilities, that the proposed expert opinion evidence meets the threshold for admission in accordance with the requirements of Mohan, as refined in Abbey and White Burgess.

[62] It is necessary that Dr. Colman give evidence in two respects on the voir dire:

(i) The precise opinion evidence proposed; and,

(ii) His qualifications to give the opinion.

[63] Opposing counsel may cross-examine Dr. Colman on his qualifications if they so choose. Beyond that, no cross-examination is necessary or justified in the circumstances.

[64] I anticipate that the evidentiary portion of the voir dire will be brief. I will hear counsel’s submissions immediately following the completion of Dr. Colman’s evidence.

Boswell J.

Released: August 13, 2015

[^1]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 (“Mohan”).

[^2]: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670 (“Corbett”).

[^3]: R. v. Michalowsky, [1991] O.J. No. 3611.