R. v. Millard and Smich, 2016 ONSC 1517
CITATION: R. v. Millard and Smich, 2016 ONSC 1517
COURT FILE NO.: 14-4348
DATE: 2016/03/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Crown
A. Leitch on behalf of the Crown
- and -
DELLEN MILLARD Accused
R. Pillay and N. Sachak on behalf of D. Millard
- and –
MARK SMICH Accused
T. Dungey on behalf of M. Smich
HEARD: February 25, 29 and March 1, 2016
A.J. Goodman J.:
MID TRIAL WRITTEN RULING # 3 – EXPERT EVIDENCE - (PowerPoint)
[1] The accused, Dellen Millard (“Millard”) and Mark Smich (“Smich”) object to the manner in which expert evidence is to be adduced at this trial, in particular the use of certain PowerPoint slides to be introduced and entered as exhibits.
[2] The Crown attorney submits that the manner of presentation of expert evidence including the utilization of PowerPoint slides in the course of such testimony is necessary to assist the jury.
[3] The objections raised by the accused on various occasions and over several days raise issues-in-common with respect to three expert witnesses called by the Crown.
[4] After hearing the submissions of counsel during several voir dires with respect to each of these experts, I ruled that the various PowerPoint presentations were admissible as exhibits with certain qualifications. I do not intend to address the specific directions in relation to the modifications made to each expert’s unique PowerPoint presentation, as I have provided the parties with my oral reasons dealing with those particular issues.
[5] Nevertheless, the parties were advised that I would furnish written reasons for my ruling regarding the overall utility of the PowerPoint reports in conjunction with the expert’s testimony. These are my reasons.
Background:
[6] Several expert witnesses have been called and are anticipated to be called by the Crown. The objection raised by the accused impacted on the evidence and correlative PowerPoint presentations offered by Mr. Sloots, a forensic biologist with the Centre of Forensic Sciences, Mr. Plaxton, a forensic imaging expert and Detective Falconer (Ret’d), of the OPP technological crime unit.
Positions of the Parties:
[7] The accused submit that the basis for the objection stems from unfairness and the risk that the jury may overemphasize the conclusions, comparisons or opinions provided in the PowerPoint presentations. The accused submit that the opinions and conclusions anticipated to form part of the experts’ testimonial evidence should not be included on the face of the slides themselves as they will be marked as an exhibit and will therefore go to the jury as evidence in the case.
[8] The inclusion of an opinion essentially allows the testimony of the expert to be reduced to writing and provided to the jury. The accused submit that this is no different than allowing the Crown to file the expert’s report as an exhibit. More problematic is the fact that the conclusions and opinions reflected on the slides are shorthand and do not capture the full evidence of the expert on the complexities of, for example DNA analysis or comparisons between images or conclusions about a certain piece of evidence. The accused say that certain slides emphasize what the Crown feels is important to their case. They highlight aspects of the witness’ testimony and the slides allow the Crown to deliver their theory to the jury.
[9] The accused submit that there is prejudice caused by certain opinion and conclusions being offered in the slides. There is a risk that the jury will place excess weight on these slides. The PowerPoint ought to only reflect actual evidence of certain matters without direction, opinion or conclusions being included. The accused further submit that the hearsay statements in certain parts of the slides are not admissible and therefore should not be included.
[10] The Crown does not agree that the defence has the right to dictate the manner of presentation of an expert witness. This has become the unintended effort of providing defence, in advance, with the presentation format of various expert and other witnesses.
[11] The Crown submits that it is their responsibility to present this evidence in a manner that assists the jury with their understanding of it. The Crown says that a considerable effort has gone into this by the expert to ensure the presentation is fair and neutral while being helpful to the jury. The impugned slides are directly taken from the experts’ findings and conclusions in their respective reports disclosed to the defence.
[12] The Crown rejects the defence position that the presentation contains bald, conclusory or hearsay statements. The Crown submits that the various PowerPoint presentations will assist the jury in their deliberations in areas of technical evidence without undue emphasis on any opinion. The Crown requests that the objections be denied.
Discussion:
[13] Based on one set of written submissions filed, the accused seem to suggest that there is no precedent for introducing evidence in the manner that the Crown seeks to do; by PowerPoint presentation that is replete with description, comment, opinion and conclusions. It is submitted that introducing the impugned PowerPoint in this fashion blurs the line between admissible and inadmissible evidence.
[14] In my review of the jurisprudence, I note that there have been recent cases that have permitted and facilitated this form of evidence to go to the jury along with proper instructions as to its use.
[15] In R. v. Sandham, 2009 CanLII 58982 (ON SC), [2009] O.J. No. 4517 (Ont. S.C.J.), a case involving numerous accused, the Crown sought to provide jurors with binders containing a copy of the indictment, a "cast of characters" (which had a photograph of each accused and the deceased, along with their names and nicknames), a calendar covering the material time period, copies of important exhibits, and a copy of the Court's final charge to the jury. At para. 4 of his decision, Heeney J. quoted the following passage from Watt J.'s text, Helping Jurors Understand (Toronto: Thomson Carswell, 2007) at 34:
In lengthy trials and trials of complex cases, it is a sound and sensible practice to supply each juror with a three-ring binder in which the juror can keep various documents distributed or created during the trial. These multi-purpose binders may aid juror understanding and recall of the evidence, and may increase juror activity during the trial.
[16] Justice Watt referred to this concept of "educating" a jury at p. 30 of his text in the context of providing judicial instructions to the jury:
The chief purpose of judicial instructions to jurors in a criminal case, especially final instructions, is to inform the decision-maker about the legal principles that govern their decision. Informed decision-makers, at least as a general rule, make informed decisions. To inform the decision-maker, by another name, is to educate the decision-maker.
[17] Although those comments were made with respect to the issue of educating the jury and the utility of providing written jury instructions, in my view they are instructive when considering the need to educate the jury on an area of science, or to impart some other body of expert knowledge that the jury needs to know in order to decide the case in a fully-informed manner.
[18] In R. v. Poitras, 2002 CanLII 23583 (ON CA), [2002] O.J. No. 25 (C.A.) Doherty J.A. stated at para. 46:
Juries need whatever help judges can give them. For many years, educators have accepted as self-evident the proposition that appropriate written material enhances the comprehension of oral instruction. Social science research suggests that this proposition has application to jury instructions.
[19] It seems appropriate that juries are to be assisted on complex legal issues and a substantial evidentiary record: R. v. D. (A)., [2004] O.J. No. 5838 (S.C.). It is recognized that in particularly long or complex cases, a trial judge has a discretion to permit summaries or other aids to be given to juries to assist them in dealing with the evidence reasonably, intelligently and expeditiously: R. v. Bengert (1980), 1980 CanLII 321 (BC CA), 53 C.C.C. (2d) 481 (B.C.C.A.); R. v. Fimognairi, [1983] B.C.J. No. 576 (C.A.).
[20] In R. v. Pan, 2014 ONSC 4645, the trial judge recognized the fundamental importance of assisting juries as much as possible with their understanding of technical and involved areas of evidence. I recognized that at the end of the exercise, Boswell J. was disinclined to allow the OPP PowerPoint slides to go the jury, as there were issues of repetition, the timing of its introduction, and the risk of unfairness. In this context, Pan is dissimilar than what is found here. For example, the data and opinion contained within the various slides are not repetition of evidence already proffered; rather it is being presented concurrently with the expert’s viva voce testimony and is premised on the conclusions offered in their respective reports.
[21] I know from the pre-trial applications in this case that the facts underlying the charge are somewhat voluminous and complex, given the circumstantial nature of this case. At times during this trial, various PowerPoint presentations have been made exhibits without objection raised by the defence. The majority of the slides are not objectionable; as they contain photographs of real evidence, examinations of scenes or explanations of tasks undertaken including the collection of evidence.
[22] On other occasions, objections were raised in particular as to the substance or conclusions seemingly provided on some of the underlying facts contained therein. Counsel had no difficulty with experts using PowerPoint to outline the background science, or reference to various photographs of items seized or observed or other “evidence”, but objected to informational slides relating to the analysis and conclusions of the expert specific to this case.
[23] As I expressed to counsel, I would have been amenable to have some of these impugned PowerPoint presentations considered as a demonstrative aids. However, it is recognized that the manner of presenting evidence in a modern day criminal trial has evolved even in the glacial paced and somewhat technically resistant confines of a courtroom.
[24] Expert evidence may only be admitted if it is reasonably necessary and assists the jury, albeit more than merely helpful: R. v. D. D., 2000 SCC 43, [2000] 2 S.C.R. 275. Since the goal of an expert witness is to educate the jury to the point where they can understand the evidence that is being presented, I am of the view that, in the proper circumstances, a PowerPoint presentation is an appropriate and valuable tool. I also agree with Heeney J.’s statement at para 24 of his ruling in Sandham:
While there is some aspect of "leading" the witness, it is not leading in the classic sense, where the questioner puts words in the mouth of the witness. Rather, since the expert witness himself or herself prepares their own presentation, they are putting words in their own mouth. It is analogous to an expert's report, which is prepared in advance by the expert and disclosed to the defence. Experts are routinely permitted to have their reports in front of them as they testify, and to refer to them as they deliver their evidence. Such reports are frequently entered as exhibits. Having the report synthesized in Power Point format and presented to the jury is essentially no different.
[25] I note that in R. v. Paul, [2004] O.J. No. 1337 (S.C.) Trafford J. admitted a PowerPoint presentation by a DNA expert, including slides that set out the expert's conclusions. At para. 6, he stated:
Clearly, the jurors could, if they wanted to, make notes of the testimony of Mr. Newman concerning the variation in the RMP estimate. The second last sheet in Exhibit #4 is no more than a note of the core of his anticipated evidence on these points. As such it does not offend the rule against prior consistent statements. Nor does it add to the prejudicial effect of the admissibility of the statistical calculation of the RMP. For an elaboration of that aspect of the case, see Ruling No. 2, supra. Moreover, any disclosure issues raised by this evidence can, and will, be resolved under R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1 (S.C.C.) and its progeny.
[26] I agree with the Crown that, for example, the DNA results in this case illustrate this point as they are found in several reports on multiple items, involving both accused and material third parties. In this case, there is no difference with the PowerPoint slides being provided with the expert’s key findings as opposed to having the expert speak slowly and the jury attempting to take robust notes in order to follow along. As Heeney J. discussed in Sandham, “it is open to the jurors to take notes of the information contained in the chart if the Crown spoke sufficiently slowly during its opening address. However, that would unnecessarily slow the proceedings, and the PowerPoint is a convenient and necessary way to achieve this same end”.
[27] Generally speaking, I agree that experts’ reports, per se, ought not to be filed as exhibits. The evidence is their “in-court” testimony. That being said, any analysis or conclusion in the PowerPoint slides is neither akin to a report being filed, oath helping, nor is there a risk of redundancy. To the extent that there is an opinion proffered, the slides reflect the analysis and conclusions addressed by the expert in his or her report and disclosed to counsel.
[28] With the multitude of expert testimony and the complexity of issues, I am persuaded that the trial process is evolving to the point where a PowerPoint presentation may be necessary to assist the jury in tandem with the expert’s or witnesses’ viva voce testimony. Here, I accept that the Crown has neither inappropriately edited the slides nor is there an editorial bent by the Crown contained within the various experts’ slides. It cannot be described as a stand-alone advocacy tool for the prosecution.
[29] While the PowerPoint exhibits may be relevant and useful, it is clear that any opinion or secondary information contained therein does not become fact unless and until the jury finds it to be. The opinion of each expert is subject to cross-examination and the jury will assess its ultimate weight. As long as they are appropriately instructed, I see no prejudice in them having the PowerPoint presentations addressed by each witness and entered as an exhibit.
[30] Of course, the jury's findings of fact as to the matters set out in the various slides, as the case may be, will be based on their assessment of the overall evidence at the end of the case; their findings may ultimately differ from what is in the slide, or for that matter, the expert’s opinion.
[31] Nevertheless, in addressing the accused’s objections and in an effort to ensure that stand-alone opinions are not enhanced by the various PowerPoint exhibits, I directed Crown counsel to redact specific slides wherein bald conclusions or opinion were provided in a circumstance where the expert could clearly offer this evidence viva voce. In instances where the jury could be assisted with the expert’s opinion along with specific reference to the relevant photograph or diagram contained within the slide, I either requested some minor editing or permitted the particular slide to be presented unaltered in the exhibit.
[32] As with all of other PowerPoint presentations already submitted as exhibits in this trial, the jury will be instructed on their use. Ultimately it is the testimony of the witness that counts and if it is at variance with the exhibit, the jury will receive an appropriate instruction. Thus, with the proper redactions or modifications, the various PowerPoint presentations will provide a mechanism for the jury to facilitate their understanding of the evidence and the issues in this case.
[33] Finally, it is settled law that an expert witness is entitled to provide the jury with information he or she received which formed part of the opinion, even if it is hearsay or based on second-hand information. If such hearsay information is contained on the slide, its purpose is to assist the jury’s understanding of the underlying opinion proffered by the expert. At the end of the day, this may go to an issue of weight, not admissibility, as it is with all expert opinion evidence dealing with the nature of underlying facts considered by an expert: R. v. Abbey (2009), 2009 ONCA 624, 246 C.C.C. (3d) 301 (Ont. C.A.), R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852.
Conclusion:
[34] I am persuaded that whether understanding complex and extensive evidence, enhancing juror comprehension can never be a bad thing. In my opinion, the PowerPoint presentations are not only a useful reorganizing of evidence already or about to be tendered, rather they are reasonably necessary to assist the jury with their determinations of fact in tandem with the expert’s concomitant testimony.
[35] The accused’s objections regarding the overall tenor of these PowerPoint presentations in conjunction with the experts’ testimony is not sustained. However, as certain slides offered pure or bald statements, opinions or comparisons that are wholly within the jury’s domain and determination, I directed that those distinct slides be redacted or modified. The expert witness is of course, entitled to provide his opinion or conclusions viva voce.
[36] Where the defence raised a specific objection, I do not find that there is a potential for misuse of these PowerPoint presentations entered as exhibits, or that the jury will give undue weight to them. Timely and proper limiting instructions will address the concerns of any risk that the jury will elevate this particular piece of evidence beyond what is appropriate.
A.J. GOODMAN, J.
Released: March 7, 2016
CITATION: R. v. Millard and Smich, 2016 ONSC 1517
COURT FILE NO.: 14-4348
DATE: 2016/03/07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and -
DELLEN MILLARD
Accused
- and -
MARK SMICH
Accused
MID TRIAL WRITTEN RULING # 3- expert evidence – (PowerPoint)
A. J. GOODMAN, J.
Released: March 7, 2016