CITATION: R v. DeSousa, 2016 ONSC 948
NEWMARKET COURT FILE NO.: 12-01908G
DATE: 20160205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Ricky DeSousa
Applicant
Jennifer Gleitman, for the Crown
Stephanie Boydell and Kerry P. Evans, for the Applicant
HEARD: January 19-21, 2016
PRE-TRIAL RULING ON VOIR DIRE
GILMORE J.:
[1] The defence seeks to qualify three witnesses as experts by way of a pre-trial voir dire.
[2] The accused, Mr. Ricky DeSousa (Mr. DeSousa) is charged with one count of criminal negligence causing bodily harm to Detective Frank Abreu, one count of attempt murder with respect to both Detective Frank Abreu, and Detective Doug Bedford, and one count of failing to stop his motor vehicle in the course of a police pursuit.
[3] Mr. DeSousa will be tried by a jury commencing February 29, 2016. The defence has requested that the voir dire be heard at this time in order to avoid any delays in the course of the trial proper.
Background
[4] The Crown and in large part, the defence, rely on the Reasons for Judgment of Justice W. A. Gorewich from the preliminary enquiry as the factual background for the voir dire.
[5] As a result of several gas station robberies in November and December 2010 in which the police had information that Mr. DeSousa was implicated, they conducted surveillance on him on December 10, 2010. On that day, Mr. DeSousa was seen driving a Dodge minivan with a passenger. Detectives Abreu, Bedford, Borovskis and Martin were conducting the surveillance. Each of them drove an unmarked police vehicle. After following the van for a period of time and while travelling south on Weston Road, Detective Martin decided to stop the van and arrest Mr. DeSousa.
[6] For safety reasons Detective Martin decided to stop the van using a rolling block rather than a police pursuit. As the name suggests, a rolling block involves boxing in a target vehicle with police vehicles.
[7] While Mr. DeSousa’s van was at a red light, the police vehicles manoeuvred into position such that one of them was in front of the van, one behind and two to the left side of the van. When the light changed to green, the police vehicles began to box in Mr. DeSousa’s van. Mr. DeSousa began to swerve and then speed up and slow down. In doing so, his van came into contact with the police vehicles. The detectives boxed in the van even more so that it could not move. Mr. DeSousa’s tires were squealing and rolling although the van was stationary. The noise and smoke created by these actions made for a chaotic and noisy scene.
[8] At this point Detective Abreu exited his vehicle wearing a police vest. He ordered Mr. DeSousa not to move and told him he was under arrest. He drew his gun as Mr. DeSousa appeared very animated. Detective Bedford observed Detective Abreu’s actions and he also exited his vehicle although he did not draw his gun. He stood at the right front of the van.
[9] Detective Abreu smashed in the driver’s side window on the van so he could be sure Mr. DeSousa could hear him. He grabbed Mr. DeSousa to pull him out of the van when he noticed that Mr. DeSousa had a knife. Detective Abreu stepped away at which point Mr. DeSousa reversed the van which struck Detective Abreu on the chest and pushed him back. As the van reversed, Detective Abreu was fearful it would hit Detective Bedford so he shot three times into the left front tire to immobilize the van.
[10] The van then started moving forward towards Detectives Abreu and Bedford who testified that they thought they were in danger of being struck by the van. Detectives Abreu and Bedford fired their guns in the direction of Mr. DeSousa and the van and tried to move out of the way. In the course of these actions, the van was able to escape.
[11] A police pursuit took place down Weston Road. Mr. DeSousa’s van did not stop until it was T-boned and rear-ended by police vehicles. Detective Abreu continued to yell commands at Mr. DeSousa who was spinning the wheels of the van. Detective Abreu then pulled out the passenger, Mr. DaSilva, through the passenger window and got into the van and, according to Detective Abreu; a struggle ensued between he and Mr. DeSousa in which Detective Abreu was struck by Mr. DeSousa. Mr. DeSousa was then restrained and arrested.
[12] As a result of the “rolling block” incident, there were tire marks, damage to vehicles and shell casings found during the investigation that followed. The defence seeks to call certain witnesses to give expert testimony in the general areas of forensic science related to ballistics, accident reconstruction and police use of force, training and vehicular apprehension.
[13] The Crown opposes the introduction of this evidence. The Crown’s view is that the officers and their actions on the day in question is not the issue to be determined by the jury. Introducing expert evidence which does not relate to whether or not Mr. DeSousa had the requisite intention to kill Detectives Abreu and Bedford will only serve to confuse the jury and distract them from their function as triers of fact.
The Law and the Position of Crown and Defence
[14] There is no dispute that the four preconditions to admissibility as set out in R. v. Mohan 1994 80 (SCC), [1994] 2 S.C.R. 9 and considered again in R. v. Abbey 2009 ONCA 624, [2009] O.J. No. 3534 must be met before any expert testimony can be received in this case. The onus is on the defence to prove that the preconditions to admissibility have been met or that they can be met with either, or both, a proper jury instruction or limiting the parameter of an expert’s testimony to offset any prejudicial effect.
[15] The well-known preconditions mentioned above are as follows:
In order for the expert evidence to be admissible it must be;
(a) relevant;
(b) necessary to assist the trier of fact;
(c) not subject to any exclusionary rule; and
(d) from a properly qualified expert.
More specifically, the evidence must be relevant such that its probative value is not overborne by its prejudicial effect and possibly result in its misuse or cause confusion to the jury. The expert evidence must be necessary in that it is outside the knowledge or experience of the jury. If there is a danger that such evidence could distract the jury but it otherwise meets the criteria, a proper jury instruction may offset such a concern. Finally, the evidence must be given by a witness with special knowledge in the required area are acquired through study or experience.
[16] In Abbey, the Ontario Court of Appeal expanded on the criteria in Mohan. After determining admissibility as per the four criteria outlined above, Abbey prescribes a further examination of the evidence by the trial judge in the form of a gatekeeping function. The court, in Abbey, described this function as a case specific cost-benefit type analysis involving the exercise of judicial discretion to determine admissibility based on competing considerations (Abbey at para 79).
[17] The defence submits that the expert evidence is not proffered as any form of novel scientific theory nor is it meant to provide any opinion on Mr. DeSousa’s guilt or innocence. Rather, it is meant to assist the jury with what happened during a chaotic and smoke filled incident between the police and Mr. DeSousa. Without the assistance of experts to make sense of the physical data, the jury will be left with a sanitized or incomplete version of events.
[18] An environment of danger was created by the officers, and the triers of fact will be assisted by knowing the general location of the officers and where the 18 shots were fired from.
[19] The defence submits that if there is a concern about any prejudicial effect the court is at liberty to limit the scope of the expert’s evidence.
[20] The Crown submits that the detectives gave very detailed evidence at the preliminary enquiry and will give the same detail at trial. Issues relating to whether the police followed proper procedures are not relevant to whether or not Mr. DeSousa intended to kill Detective Abreu or Detective Bedford. The detectives are not on trial nor have they been subjected to any disciplinary proceedings as a result of this incident. Allowing expert evidence as proposed by the defence will distract the jury from the main trial issues and overwhelm them with unnecessary detail.
[21] The Crown submits that each of the officers had the same type of gun with the same amount of ammunition. The guns were seized and the number of shots fired is known. There is no need for expert evidence with respect to the location of the gun casings. The Crown concedes that the officers were standing in the general area of where the casings were located.
[22] The Crown refers to Mohan with respect to cautioning the court about the misuse of expert evidence. As per paragraph 19 of Mohan, “Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves.” The Crown urges the court to exercise its gatekeeping function and carefully scrutinize the expert evidence sought to be proffered by the defence where such evidence will be both distracting to the jury and unnecessary.
The Experts
1) Mr. Liam Hendrikse
[23] Mr. Hendrikse is a forensic scientist specializing in firearms and ballistics. He has an Honours Bachelor of Science in chemistry and a Masters of Science in Forensic Science. He has worked in his chosen field since 1999 in both London, England and Ontario. He has been a consultant forensic scientist since 2006 and he has testified as an expert witness in England, Canada and the United States.
[24] Mr. Hendrikse teaches a firearms program at the University of Ontario Institute of Technology. In his work as a consultant he works primarily with criminal lawyers with respect to crime scene analysis, wound ballistics and firearms issues.
[25] The defence seeks to have Mr. Hendrikse qualified to testify in the area of ballistics and crime scene analysis. This would include scene processing, bullet casing ejection patterns, bullet trajectory and the location from which the firearms were discharged.
[26] Mr. Hendrikse provided a will say statement (Exhibit 3) which he testified contained his expert opinion. He agreed, however, that there was nothing forensically scientific about his will say statement. His evidence was that he may have further opinions depending on what hypotheses are put to him by counsel and the evidence of other witnesses.
[27] Mr. Hendrikse testified that paragraphs 13 to 15 of his will say statement contained his expert opinion. In summary, those paragraphs say that shots were fired by police into the van, that the injury to passenger DaSilva was caused by a bullet or bullet fragment and that based on the location of the six fired cartridge cases, Detectives Abreu and Bedford were standing in the area of the cases although it is not possible to tell if the shots from those cases struck the van.
[28] The defence submits that Mr. Hendrikse’s evidence is needed to inform the jury about where the officers were generally standing when the shots were fired, how many shots were fired and the direction of the shots fired into the van. Without this evidence, the jury will be unable to interpret photographs of the van showing bullet holes and whether the bullet holes were entry or exit bullet holes. The jury requires Mr. Hendrikse’s evidence to fully understand and interpret the physical evidence from the rolling block scene.
[29] The Crown submits that Mr. Hendrikse’s evidence is not necessary for this case. Mr. Hendrikse conceded that the bullet cartridge case location can only provide a general location for the officers. The officers can give this evidence themselves.
[30] Further, Mr. Hendrikse cannot give evidence about ballistics as none exists. A report was prepared by the Centre of Forensic Science. In that report, no bullet trajectory analysis was done because the van was in motion and such an analysis was therefore not possible. Whether a particular shot went into bullet hole A and out bullet hole B is unnecessary evidence and not relevant to the issue in this case which is whether Mr. DeSousa intended to kill the officers.
Ruling on the Admissibility of Mr. Hendrikse Evidence
[31] I do not find that proposed evidence of Mr. Hendrikse meets the test in Mohan for the following reasons:
(a) Mr. Hendrikse relied on his will say as his opinion. The information in that opinion is either readily available through other sources (such as the officers testimony) or is not relevant to the issues in this case. Specifically, the number of shots fired, by whom and in what direction is not contested in this case. No one, including the officers, can testify as to the exact location of the officers when their shots were fired. Having Mr. Hendrikse testify to their general location is not of assistance and that evidence can be obtained from the officers themselves in any event;
(b) Much of the evidence which Mr. Hendrikse proposes to give is already contained in the Centre of Forensic Science report. Further, Mr. Hendrikse does not deny that he cannot provide evidence of an exact sequence of events, at what stage the shots were fired, or exact bullet trajectory;
(c) I do not agree with the defence that Mr. Hendrikse’s evidence is necessary to allow the jury to interpret the physical evidence in this case. The physical evidence in this case falls into two categories. It is either uncontested or unable to be determined. As such, it does not need to be analysed or parsed further. I find that this is exactly the type of the case where evidence from Mr. Hendrikse may well distract the jury or prompt them to attach more importance or significance to evidence that strays too far from the substantive legal issues in this case;
(d) With respect to the specifics of the Mohan enquiry, I have no doubt that Mr. Hendrikse is a properly qualified forensic scientist who is well able to give evidence about ballistics and related crime scenes. But this is not a case about identifying a type of firearm or ammunition or the malfunctioning or accidental discharge of a firearm. It is a fact in this case that both detectives shot their guns into Mr. DeSousa’s van. We know the type of gun, the type of ammunition and the number of shots fired. With respect to Mr. Hendrikse, his hard earned expertise is not required to interpret what are the well-known circumstances of the shots fired in this case. The proposed evidence therefore fails the threshold requirement of relevance;
(e) I do not find that a jury instruction or any limitation on the intended evidence of Mr. Hendrikse will cure the prejudicial effect or somehow make Mr. Hendrikse’s evidence necessary as proposed by the defence.
[32] Given all of the above, I do not find that the defence has met their onus with respect to Mr. Hendrikse and he will not be permitted to testify.
2) Mr. Steven Sommerville
[33] Mr. Steven Sommerville was proffered by the defence as an expert in the area of police training and use of force. Specifically the defence requested that he be entitled to give expert evidence in the areas of police training, use of force and the education of officers in use of force, motor vehicle takedowns and the training of officers with respect to the apprehension of suspects in vehicles.
[34] Mr. Sommerville worked as a police officer for 24 years. In his last year as a police officer he was an instructor at the Aylmer police college. Since 2001 he has been the owner of Stay Safe, a consulting firm which provides training for security provision. In the course of his career as a consultant he has overseen security operations for large live events and concerts such as Madonna and the Rolling Stones and taught crowd control tactics and other courses to police forces, probation officers, paramedics and correctional officers.
[35] Mr. Sommerville has testified as an expert for both the Crown and defence in criminal cases, for both plaintiff in defence in civil cases and in various inquests for both the coroner and the family of the deceased.
[36] Mr. Sommerville has been interviewed on radio and by newspapers and other publications on many, many occasions. He has given interviews on a variety of topics such as the use of tasers, fatal shootings, police training in firearms, weapon attacks, police use of force, G20 summit security and arrests and the Vancouver hockey riots.
[37] Mr. Sommerville did not prepare a report for this case. His evidence was that simply reading the officers’ notebooks would not be enough as their notes are not evidence. He must hear the entirety of their evidence to determine whether their actions were consistent with their training. The fact that he was not present at the scene does not prevent him from analyzing their actions.
[38] Mr. Sommerville has never taught any courses to York Regional Police (the police force involved in this case) although his evidence was that York Regional Police officers would be subject to provincial standards which would apply to all Ontario police officers in terms of their training.
[39] The witness agreed that when he has testified as an expert in other cases, the issue in those cases related to whether the police acted in accordance with their training. He understood that that was not the issue in this case.
[40] Mr. Sommerville was not permitted to give expert evidence in one case. He did not mention this in his C.V. However, in that case he was asked to opine on the ultimate legal issue. Not surprisingly, the court found this was not appropriate.
[41] The defence submitted that the evidence of Mr. Sommerville is not meant to put the officers on trial. Rather, it is to inform the jury and allow them to determine if the environment created by the officers was appropriate. This will assist them with respect to Mr. DeSousa’s state of mind.
[42] The Crown submits that this is not a case about police propriety or whether they followed procedure as the police are not on trial in this case. Mr. Sommerville has not actually taught police in more than 10 years and is not current with York Regional Police training or procedures. Therefore, his evidence would distract the jury from the intent related issues in this case and divert the focus to the police. Mr. Sommerville should not be permitted to testify in those circumstances.
[43] The Crown urges the court to follow the reasoning in Meady v. Greyhound Canada Transportation Corp. 2015 ONCA 6, [2015] O.J. No. 55 (CA) in which the court refused to allow Mr. Summerville to testify. That decision was upheld on appeal. In that case the appellants submitted that Mr. Sommerville should have been permitted to give evidence on police crisis management techniques with respect to persuading the defendant Mr. Davis from boarding a bus.
[44] The court held that the trial judge properly exercised his gatekeeping function in refusing to allow the expert evidence. In that case, the police training manuals were in evidence and the court held that the trial judge did not need expert evidence to understand them.
Ruling on the Admissibility of Mr. Sommerville’s Evidence
[45] I find that Mr. Sommerville may give expert evidence in the areas requested for the following reasons:
(a) Mr. Sommerville is qualified to give this evidence. The Crown’s concern about Mr. Sommerville not having instructed York Regional Police is misplaced in my view. I accept Mr. Sommerville’s evidence that he must keep up to date on police training and procedures in order to keep a current profile in his consulting business and as a trainer. As for the Meady case, in that case, there was no jury. The trial judge had the training manuals available. It is not known at this stage whether such information will be introduced into evidence. The reasons given by the court for rejecting Mr. Sommerville’s evidence did not relate to his qualifications but to the necessity of having what was essentially superfluous evidence given the information available to the trial judge;
(b) Regarding relevance, I find that Mr. Sommerville’s evidence is relevant with respect to the jury having a better understanding of why the police acted the way they did. While this evidence may be available from the officers, I find that Mr. Sommerville may provide a more objective and factual understanding of police procedures regarding use of force and vehicular takedowns. This is relevant to understanding Mr. DeSousa’s reactions and those of the officers;
(c) With respect to necessity, I do not find that having Mr. Sommerville testify will suggest to the jury that they are involved in some fault finding exercise with respect to the police. Indeed a brief instruction to them confirming that Mr. Sommerville’s evidence is meant to assist them in determining the ultimate legal issue but not any fault on the part of the police should be sufficient. They may also be instructed that the officers were not and are not involved in any disciplinary action related to this incident.
[46] Given all of the above, I do not find that any prejudicial value of Mr. Sommerville’s evidence would outweigh its probative value. An instruction may provide a curative measure in this regard if any prejudice exists. As a result, I find that this evidence will not distract or overwhelm the jury. On the contrary, they will be in a better position to analyze the evidence for the purpose intended.
3) Mr. Scott Walters
[47] Mr. Walters has been a qualified forensic engineer since 1993. He obtained his degree in industrial engineering in 1987 and worked for Ontario Hydro until 1993 when he started his own consulting business. Mr. Walters specialized in “human factors” in his undergraduate degree. This relates to human capabilities with respect to tolerances, attention spans and reaction times and applying engineering principles to those factors.
[48] Mr. Walters testified that accident reconstruction relates to human factors as driving is an interface between a human being and a machine. He is also able to provide expert evidence on roadway and automotive systems assessments. He has testified as an expert in courts and tribunals throughout Canada. The defence requested that Mr. Walters be qualified as an expert in accident reconstruction regarding the scene of the accident during the rolling block incident.
[49] Mr. Walters prepared a report with the assistance of two colleagues who work in his firm, Mr. Huan and Mr. Nassar. Both of them are engineers. Mr. Walters carefully reviewed those portions of the report prepared by his colleagues.
[50] In order to prepare the report, Mr. Walters reviewed the police information concerning the attempt murder charge, the photos of the involved vehicles, the diagrams prepared by the Special Investigations Unit (SIU) and the York Regional Police (YRP) collision reconstruction report. From this review, Mr. Walters prepared certain diagrams including a computer animation of the incident using a program called PC Crash. He also answered certain questions posed to him by the defence as to where the five vehicles were located and the movements of Mr. DeSousa’s van.
[51] Notwithstanding that the YRP collision report indicated that no conclusions could be made about where and when collisions between the vehicles took place, Mr. Walters testified that from the sketches, tire marks and measurements he made, he could determine likely points of contact and therefore damage. Mr. Walters agreed that none of his drawings or diagrams could assist with the intention of Mr. DeSousa at the relevant time.
[52] The defence submitted that the movement of the vehicles and in particular that of Mr. DeSousa’s van relates to a central issue which the jury must assess. The officers cannot offer clear evidence on this point because the events occurred over a short period of time and their visibility was obscured by smoke.
[53] The diagrams in Mr. Walter’s report will explain the collisions and the subsequent fleeing from the scene by Mr. DeSousa. Mr. Walter’s opinion is necessary to assist the jury with the timing, direction and movements of all the vehicles involved and the situation in which Mr. DeSousa found himself.
[54] The Crown submits that Mr. Walter’s report addresses the question of whether the movement of Mr. DeSousa’s van suggested he was driving at the officers or driving away. This is a critical point which is one the jury must answer. The expert must not usurp the fact finding function of the jury.
[55] Further, the report prepared by Mr. Walter’s firm is confusing and the diagrams will distract and confuse the jury. In particular the animated portrayals are misleading because they do not focus on what Mr. DeSousa was doing.
Ruling on the Admissibility of Mr. Walter’s Evidence
[56] I find that the evidence of Mr. Walters should be admitted for the following reasons:
(a) There is no issue with respect to Mr. Walter’s expertise. He has special expertise in accident reconstruction dating back to 1990. His expert testimony has been accepted by courts across Canada at various levels. Although his report is complicated, I found that his explanations were easy to follow and made sense. A jury must be presumed to have a level of common sense that would allow a comprehension of the issues raised in the report;
(b) I find that the proposed evidence of Mr. Walters is relevant. The scene was described by the officers as chaotic. It happened within a very short period of time. The noise of Mr. DeSousa’s screeching tires and the smoke they emitted made it difficult to see exactly what was happening. An objective presentation of the scene based on measurements, tire marks and Mr. Walter’s calculations will assist the jury in their fact finding function regarding where the vehicles were and the likely contact based on damage patterns;
(c) The evidence of Mr. Walters is necessary because it will assist the jury in making a finding as to where Mr. DeSousa’s vehicle was and how it was likely moving. This may be of some assistance with respect to Mr. DeSousa’s intentions at the relevant time but would not usurp the jury’s fact finding function.
[57] Given the above, I do not see how Mr. Walter’s evidence could prejudice the jury in their determinations. I also do not see how the jury could be overwhelmed or distracted by this evidence which they can choose to reject if they find that the officers’ evidence is sufficient for their findings.
Final Order on Voir Dire
[58] Given all of the above I find that Mr. Sommerville and Mr. Walters may be qualified as experts to give evidence on behalf of the defence. The defence has not met its burden with respect to Mr. Hendrikse and he will not be permitted to testify.
Madam Justice C.A. Gilmore
Released: February 5, 2016