COURT FILE NO.: CR-16-156 DATE: 20170217 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – JAMES COOK Respondent

K.L. McCleave and S. Curry, for the Applicant P. Hiebert, for the Respondent

HEARD: January 23, 24 and 25, 2017

RULING RE: APPLICATION TO ADDUCE EXPERT OPINION EVIDENCE: SGT MURRAY deRUITER (DOG TRACK) AND DR. ROBERT LANGILLE (FORENSIC TOXICOLOGIST)

Di TOMASO J.

The Application

[1] The Application was heard by way of voir dire which took place on the above dates.

[2] The Applicant brings an Application for two orders that:

1. Sergeant Murray deRuiter can give opinion evidence in the field of Dog Track, including his reading of Briggs’ behaviour and accurately interpreting what the dog was communicating to him on September 17, 2014, while tracking the human scent leading to the successful discovery of Mr. Cook in a densely forested area away from the collision scene:

2. Dr. Robert Langille, Forensic Toxicologist at the Centre of Forensic Sciences, can give opinion evidence in that field, including the absorption, distribution and elimination of alcohol; its effects on the human body; conversion of mmol/L blood result and mgs percent; the range of blood alcohol concentration (BAC) in James Cook’s blood at the time of the motor vehicle collision and that his ability to operate the vehicle was impaired by alcohol. Similarly, that he can provide opinion evidence within the same framework concerning the BAC of Jayde Samarzija.

1. Dog Track Expert Opinion Evidence

Overview

[3] James Cook is charged with Impaired Driving Causing Bodily Harm to his friend Jayde Samarzija and Fail to Remain at the collision scene, where a car left Rainbow Valley Road in Springwater Township and came to rest against trees, on September 17, 2014. The injured man was found in the back seat. He was later airlifted to a Toronto trauma centre where he remained for weeks.

[4] There are no independent witnesses to the driving leading up to the collision. Mr. Samarzija sustained, inter alia, an acquired brain injury. It is common ground that he says he cannot recollect any events of that day. Relevant to the Application is that he offers no testimony as to the central issues of the identity of the driver, the path taken by the Respondent away from the scene or any degree of alcohol impairment.

Position of the Parties

Position of the Applicant Crown

[5] The Crown submits that on the first step of the analysis, the Mohan criteria (relevance, necessity in assisting the trier of fact, absences of an exclusionary rule and a properly qualified expert) have been met. The field of expertise has long been and frequently recognized as admissible opinion evidence. It is not novel science. Sergeant deRuiter is independent and impartial. He is sufficiently well qualified to give opinion evidence. He has extensive expertise in his field and has testified in many criminal cases in his area of expertise. The tracking dog (Briggs) is an experienced and well trained canine with the necessary ability, training and expertise to accurately follow the trail of human scent to James Cook.

[6] On the second step, the cost-benefit analysis shows that the probative value outweighs any prejudicial effect. The evidence is reliable and significant to live issues because it is circumstantial evidence of who was driving and whether Mr. Cook’s ability to operate a motor vehicle was impaired.

[7] Sgt deRuiter will testify in any event at the trial because his evidence is embedded in the narrative of what unfolded immediately after first responders found Jayde Samarzija, non-responsive and head-injured, in the backseat of the car. No one else was at the scene. The evidence covers a short, but important, unfolding of how the Respondent was located.

[8] The Crown submits that the only reason the officer was there was to employ dog track techniques to find James Cook. The Crown submits that this opinion evidence goes to the heart of Sgt deRuiter’s narrative account.

[9] As such, the Crown submits that the opinion lends support to important and reliable context to the path taken by the officers. It provides an evidentiary foundation for the jury to find that the Respondent did, in fact, follow that path away from the scene. It supports two inferences. The first is that Mr. Cook fled the scene upon arrival of the police because he was an impaired driver who sought to avoid detection. The second is that the evidence of the path and directionality of his flight from the scene, across a field and into dense bush, is circumstantial evidence of his state of mind for the Fail to Remain charge. The evidence also rejoins to the anticipated defence that he had only left the car to seek help at a nearby residence.

Position of the Respondent Cook

[10] It is submitted that Sergeant deRuiter’s opinion evidence does not offer any assistance to the trier of fact to determine who was driving and whether Mr. Cook’s ability to operate a motor vehicle was impaired. It is submitted that the opinion evidence also does not go to the heart of the narrative account but appears to be incidental to it. Further, it is submitted that the expert opinion can provide no context. It can provide no better evidence than any other police officer who is a non-expert. The opinion can go no further than to delineate the path taken and where Mr. Cook was found. It is submitted that Sergeant deRuiter’s expertise does not extend to the ability to determine the intention of Mr. Cook. Sergeant deRuiter cannot discern such intentionality from Briggs, because, Briggs cannot discern such intentionality from the scent he was following.

[11] It is also asserted that the trier of fact would be confused as to the meaning of opinion evidence in that it would give additional weight to the submissions of the Crown as to the meaning of particular movements of Mr. Cook on the basis of the reputed expertise of Sergeant deRuiter who describes the location of these movements. The opinion evidence is also not useful as it does not address any activity that occurs within roughly the first 65 minutes following the accident. To allow this evidence would be dangerous in respect of introducing a reasoning bias for the trier of fact who might conclude that because Sergeant deRuiter expressed expertise, his non-expertise opinions as a police officer believing the target of his search to be a guilty party in some way must be deserving of more weight than would otherwise be granted. Further, to allow this evidence would be dangerous by introducing a logical prejudice whereby a trier of fact might interpret Mr. Cook’s intention by taking a particular path from the house to where he was located.

Context to the Dog Track Opinion: First Responding Officers eventually came to believe that a second person was connected to the motor vehicle accident, but could not find him

[12] The 9-1-1 call related to a suspicious person at a residence, not a motor vehicle collision. Initially, P. C. Steffler did not know if there had been one or more persons associated with the collision. The only person present was a man in the car’s back seat, closest to the driver’s side door. The front passenger seat was reclined and appeared broken. The man’s injuries were so severe that he was unable to tell the officers his name. They could not otherwise ascertain his identity. He could not talk, except to utter two words sounding like “Uncle”, “Ally” or “Allen”. He was non-responsive to questions: “clearly in a serious condition.” The officers believed he had sustained significant head injury. The man they would later learn was James Cook was not at the scene.

[13] Because the description of the “suspicious person” did not match the injured man, P.C. Steffler began to believe there was the potential for more than one person to have been in that car. However, they did not know the location of any other(s). Their attempts to call out to anyone were unsuccessful. Sergeant Brown requested an ERT/Canine team to conduct a search. He told the complainant Denis to remain in his home.

The Dog Track Evidence

[14] At the Preliminary Hearing, Sergeant deRuiter testified. His evidence can be summarized in the Applicant’s factum at paragraphs 22 to 28 as follows:

Sergeant Murray deRuiter was the canine officer detailed to attend the scene at 11:30 p.m. on September 17, 2014. His dog, Briggs, accompanied him. His role was to find Mr. Cook using his dog as “a locating tool”.

He was told of the motor vehicle collision passenger injury and belief that the driver had fled to the area around 1922 Rainbow Valley Road.

Arriving around midnight, he met up with ERT officers Black and Doner, who briefed him. He saw a scene “heavily contaminated” by the scent of emergency medical personnel and firemen dealing with the injured man. Because he wanted to work the dog away from this area, he moved out of the area with Briggs.

After a search on the south side of the road, they searched Denis’ property on the north side. Briggs took them to the shed door before tracking around it. The dog was slightly confused at this point, so the officer cannot be certain that James Cook circled the shed as they did. Briggs tracked to a pond’s edge before leading the officers into the bush, where he followed a human scent through the wooded area, southeast of Denis’ residence, east of the motor vehicle collision. They were then about 300-400 meters from the motor vehicle collision site. This very thick bush contained no dwellings, trails or roadways. The darkness required flashlights to navigate. After walking a further 50-60 meters into the bush, at about 12:25 a.m., James Cook was seen, through night vision goggles, to be lying on the ground. He was seen from about 15-20 meters away.

The officers were led to James Cook because Briggs followed the human scent.

Sergeant deRuiter initially stood back about 15-20 meters, with the dog, while ERT Officers Doner and Black dealt with Mr. Cook. He got closer during the arrest, with the dog about 5-10 feet away.

The officers debriefed after Mr. Cook was turned over for medical attention, to see if there were any issues “with the way the track went”. (Nothing was noted by them)

Sergeant deRuiter’s Evidence on the Voir Dire

[15] On the Voir Dire, Sergeant deRuiter gave viva voce evidence. Also forming part of the Application Record was Sergeant deRuiter’s evidence at the Preliminary Hearing. Sergeant deRuiter has been a police officer with the Ontario Provincial Police since April 1988. His canine-related educational experience since 1993 was reviewed. He is an experienced canine handler who has undergone rigorous training. He has also served as an instructor. He has trained eight police dogs, including “Briggs” which is a male German Shepherd. Briggs is the fourth general service dog certified by the Ontario Provincial Police that Sergeant deRuiter has trained. Marked as Exhibit One was Sergeant deRuiter’s curriculum vitae. Marked as Exhibit Two was his anticipated evidence. Marked as Exhibit Three was an O.P.P. Certificate, certifying that Sergeant deRuiter and Briggs had completed the General Service Dog Basic Training course from August 31 to December 18, 2009.

[16] On the evening of Wednesday, September 17, 2014, Sergeant deRuiter received a call at 11:30 p.m. He arrived at the Huronia West Detachment to investigate a motor vehicle accident at 1922 Rainbow Valley Road. It was thought that a driver had fled the scene of the accident. He arrived around midnight on September 18, 2014. He attended with two dogs, Briggs and another dog, Dexter, who had no involvement in this investigation. When he arrived at the scene he met with two Emergency Response Team members who briefed him. Sergeant deRuiter harnessed Briggs and went to a particular area in hopes of finding a human scent trail. At the vehicle located at the scene, there was a seriously injured male. The area around that vehicle was seriously contaminated. Briggs could not be deployed in the immediate vicinity of the damaged vehicle because it had been so badly contaminated.

[17] Sergeant deRuiter went to a property and cleared buildings to see if anyone was there. Not having found anyone there, he went to the residence of the complainant and spoke to the owner. He was told that a male had come to the door a few times and was seen going up and down the driveway. When the police arrived, the owner said that the person had fled.

[18] Sergeant deRuiter and Briggs circled around the residence to see if there was anything there. Not finding anything, they proceeded in a northeast direction away from the side of the residence where Briggs had located a human scent. They continued towards a small shed 100 meters from the residence. They circled the small shed and proceeded to track, in a southeast direction to the edge of a pond where the area was lightly treed and had short grass.

[19] Sergeant deRuiter and Briggs continued tracking along the west side of the pond in a southeast direction. At the bottom of the pond to the east the terrain changed from grass to bush.

[20] At 12:25 a.m. he observed a suspect lying face down in tall vegetation. He was 15 to 20 meters away when he first observed this person. He described the appearance of this person and identified this person in court as Mr. Cook.

[21] Sergeant deRuiter communicated with his Emergency Response Team members who attended where Mr. Cook was found. Marked as Exhibit Four was a Google map of 1922 Rainbow Valley Road West on which Sergeant deRuiter depicted a dotted line around a residence and a solid line which depicted the track followed by Sergeant deRuiter and Briggs to a location in the bush marked by an ‘X’ which is where Mr. Cook was found. From the shed to that spot was between 250 and 300 meters. From where the solid line began to where Mr. Cook was found, it took Sergeant deRuiter five to ten minutes to get there. Sergeant deRuiter did not return to the residence to determine if there were other tracks. He did not take Briggs back to the driveway area because that area was too contaminated.

[22] The Defence conceded that Sergeant deRuiter was an expert dog tracker and that Briggs was a qualified General Service Dog, certified by the O.P.P. and properly trained to track human scent.

[23] Sergeant deRuiter was cross-examined.

[24] Sergeant deRuiter had received information over the police radio that the person that he was looking for was possibly the driver. This appears in his notes. He had no information as to whether the driver was injured as well. He had no information that Mr. Cook was seeking help at the residence either for himself or for the occupant of the vehicle. The owner said that Mr. Cook went to the front door. He did not know how long Mr. Cook was at the residence knocking at the door. He had no information as to when the accident occurred. While he did search a large outbuilding, he could not recall if it was on the owner’s property or some other property. After talking to the owner he circled the house. Sergeant deRuiter had no information about persons searching around parked cars on the owner’s property.

[25] When Sergeant deRuiter first saw Mr. Cook he observed dried blood on the side of Mr. Cook’s head. Sergeant deRuiter did not have anything to do with Mr. Cook’s blood. Brigg’s does not have the ability to track an injured person. The dog would not be able to differentiate between an injured or uninjured person. Mr. Cook complained about a sore leg.

[26] The dog would not be able to determine whether Mr. Cook would be looking for help for 45 minutes. Neither would the dog know how many times Mr. Cook had gone back and forth to the house. Sergeant deRuiter testified as to the same distances between the house and the shed and from the shed to where Mr. Cook was found. It would take Sergeant deRuiter five to ten minutes to arrive at the spot where Mr. Cook was lying face down. Sergeant deRuiter agreed that it was possible that Mr. Cook would have been lying there between 60 and 65 minutes. Sergeant deRuiter believed that he was tracking a fleeing suspect. Mr. Cook was not running or hiding in any way. Sergeant deRuiter was not the arresting officer. From where Mr. Cook was found, he was taken to the roadway where police vehicles and an ambulance came to meet them. Sergeant deRuiter had received information over the police radio giving him an identification of Mr. Cook as a possible suspect. That identification matched the person that he found lying face down.

[27] Sergeant deRuiter was aware that the motor vehicle was reported at 11:03 p.m. and that it took him an hour to arrive at the scene. He did not have any idea as to the chronology involving the path that Mr. Cook took. He did not know the time that Mr. Cook was knocking at the residence door or at what time he was alleged to have fled.

[28] In re-examination, Sergeant deRuiter testified that Mr. Cook could have been lying in the vegetation for a minute or a few minutes before Sergeant deRuiter arrived.

[29] Defence counsel was prepared to make a number of admissions which were not accepted by the Crown. Later, some of those admissions were withdrawn by Defence counsel. The remaining admissions were still not accepted by the Crown.

[30] The court was advised by the Crown that Sergeant deRuiter will be testifying at trial in any event. The evidence that he will be giving extends to issues beyond his expert opinion evidence or any simple admission as to the path that Mr. Cook took.

Analysis

General Principles

Onus

[31] The Crown, in seeking to elicit this opinion evidence, bears the onus on a balance of probabilities to establish its admissibility.

The Expert Evidence Two-Step Inquiry

[32] Justice Watt recently used this phrase to describe the two-step inquiry into the admissibility of expert opinion evidence, as an exception to the general rule that excludes it:

The first step involves the threshold requirements of admissibility, the second a balancing of potential risks and benefits of admitting the evidence in order to determine whether the potential benefits justify the risks. [1]

[33] The White Burgess judgment adopted this two-step approach, set out in R. v. Abbey, with “some minor adjustments”. Notably, as stated in Shafia, that the “independence and partiality of a proposed expert are relevant to the threshold requirement that he be qualified to proffer evidence of opinion on a specified subject.” That said, White Burgess held that this threshold requirement of independence and impartiality “is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it.” [2]

[34] The Crown submits the threshold requirement of independence and partiality has been met. I agree.

The Mohan Criteria post – R. v. Abbey and Subsequent Appellate Cases

[35] The Ontario Court of Appeal in Abbey set out an analytical framework in two distinct phases: The Applicant must first establish the existence of certain preconditions such as that the proposed expert is sufficiently qualified. The next phase involves the trial judge deciding whether the expert evidence is “sufficiently beneficial to the trial process to warrant its admission despite the potential harm” to it that may flow from the admission of the opinion evidence. This gate-keeper function is at “the heart of the present evidentiary regime governing the admissibility of expert opinion evidence. [3]

[36] However, this two-step approach “does not alter the substance of the analysis required by Mohan” or the criteria for admissibility. Indeed, as is seen, infra, the first phase looks at four preconditions that primarily flow from Mohan. [4]

[37] The four “Mohan criteria” are relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule and a properly qualified expert. At this first step, the Crown must establish these threshold requirements. [5]

(i) Relevance

[38] As the first of the Mohan criteria, this analysis pertains to logical relevance versus legal relevance that is a broader concept “best served for the ‘gatekeeper’ phase.” [6]

[39] Logical relevance is defined this way in Abbey:

[A] requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence: J.-L.J. at para. 47. Given this meaning, relevance sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rules: see R. v. Clark (1999), 129 C.C.C. (3d) 1 (Ont. C.A.), at p. 12. [7]

[40] Legal relevance is defined as:

Relevance can also refer to a requirement that evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission. This meaning of relevance is described as legal relevance and involves a limited weighing of the costs and benefits associated with admitting evidence that is undoubtedly logically relevant: see Paciocco & Stuesser at pp. 30-35. [8]

[41] A piece of evidence is not irrelevant merely because it can be interpreted in more than one way, or more than one inference can be drawn from it. There must be some connection or nexus between the evidence and a fact in issue. [9]

[42] Provided the inference advanced is one reasonably available on the evidence, the Crown has established that the evidence is relevant. [10]

[43] Relevance can only be fully assessed in the context of other evidence at trial. As noted in Blackman, citing R. v. Arp:

To be logically relevant, an item of evidence does not have to firmly establish on any standard, the truth or falsity of a fact in issue. The evidence must simply tend “to increase or diminish the probability of the existence of a fact in issue.” [11]

[44] “Relevance must be assessed in the context of the entire case and the positions of counsel.” (emphasis added) It does not exist in the abstract or in the air. [12]

[45] As the Court of Appeal stated:

The expert evidence must have a tendency, as a matter of human experience and logic, to make the existence or non-existence of a fact in issue more or less likely than it would be without the evidence. [13]

(ii) Necessity in assisting the trier of fact

[46] This is the second of the Mohan criteria. For further reasons, I find that this element has also been satisfied.

(iii) The absence of any exclusionary rule

[47] I find there is no exclusionary rule prescribing the introduction of opinion evidence in dog track. Upon a proper foundation being provided, this area of opinion evidence is admissible.

(iv) A properly qualified expert

[48] As to the fourth of the Mohan criteria, it is conceded that both Sergeant deRuiter and Briggs are both suitably qualified in the area of dog tracking. The courts have held that a dog handler should be called as an expert witness. Both the handler and the dog must be qualified as experts as they have been here, notwithstanding the concession of the Defence. [14]

R. v. Abbey’s Second Stage: Trial Judge as Gatekeeper and Cost-Benefit Analysis

[49] The Court of Appeal in Abbey stated:

The “gatekeeper” inquiry does not involve the application of bright line rules, but instead requires an exercise of judicial discretion. The trial judge must identify and weigh competing considerations to decide whether on a balance those considerations favour the admissibility of the evidence. The cost-benefit analysis is case-specific and, unlike the first phase of the admissibility inquiry, often does not admit of a straightforward “yes” or “no” answer. [15]

[50] At this second step, “the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks.” [16]

[51] The Supreme Court recently approved of the description of the requisite balancing exercise set out in Abbey:

[T]he trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. [17]

Findings

[52] Only James Cook or Jayde Samarzija could have been driving the car that crashed on the night in question. The Crown submits the opinion evidence in question supports central inferences as to Mr. Cook’s state of mind, relevant to Impaired Driving and Fail to Remain. The Crown further submits that it also provides the jury with a basis to find that Mr. Cook’s presentation is not explained away by injuries. It is submitted that his ability to operate a vehicle was impaired by alcohol. It is further submitted that the opinions of Sergeant deRuiter and Dr. Langille satisfy both the step one and step two criteria for admissibility of the opinion evidence. For the following reasons, I agree.

[53] I do not agree with the submissions of the Defence that save and except for the evidence regarding the path leading directly to Mr. Cook, Sergeant deRuiter can provide no expert opinion evidence. Beyond the “path evidence”, it is submitted that his evidence would be nothing more than could be given by any other police officer without expertise. The defence submits that non-expert evidence is being proffered under the guise of expert opinion evidence. I reject this argument entirely.

[54] I find that Sergeant deRuiter’s expert opinion evidence is necessary to permit the jury to draw inferences from all of his evidence. The jury may or may not do so. However, this evidence is necessary for the Crown to submit that how the dog tracking was explained and the jury is not left to speculate how dog tracking works. Sergeant deRuiter’s interaction with Briggs during their investigation was not like any other police officer with any dog participating in the investigation in the middle of the night. Rather, the Crown submits that the evidence tendered exists to refute any suggestion on the part of the defence that Mr. Cook doubled back to the residence to seek help for himself or for his friend, or that he want anywhere else except directly into the bush where he was found. It is for the jury to determine on all of the evidence, including the evidence of Sergeant deRuiter, whether Mr. Cook was indeed the impaired driver who left the scene of the accident.

[55] I find the inference proffered by the Crown is one which is reasonably available on the evidence and the Crown has established that the evidence is relevant.

[56] I find the opinion evidence is both logically and legally (step two) relevant to live issues. The opinions from Sergeant deRuiter (and Dr. Langille) go to facts in issue regarding flight, both in fact and as circumstantial evidence of state of mind and impairment.

[57] The dog track opinion evidence (and the toxicology opinion evidence) “is so related to a fact in issue that it tends to establish.” I find that it links Mr. Cook’s state of mind and impairment. As such, it is prima facie admissible. It is logically relevant. [18]

[58] In a determination of the cost-benefit analysis as set out in Abbey, I find the opinion of Sergeant deRuiter necessary in the sense that it provides information “which is likely to be outside the experience and knowledge of a judge or a jury”. It is necessary to enable to the jury “to appreciate the matters in issue due to their technical nature”. [19]

[59] Without the dog track opinion to explain why Sergeant deRuiter took the path he did that night, the jurors are left to speculate. The presence of the dog becomes disconnected from the investigation by the officer to find James Cook. Briggs communicated to his handler that he was following a human scent. That scent led to James Cook in the bush. The jury should be able to hear and understand this evidence in order to be draw informed inferences that the Crown will ultimately ask the jurors to make.

[60] The Defence submits that Sergeant deRuiter’s expert opinion evidence will “confound and confuse” the jury. I disagree. The opinion evidence is straightforward and there is nothing in this evidence that would “confound and confuse” the jury. [20]

Probative Value Versus Prejudicial Effect

[61] I find that the opinion evidence is both logically and legally relevant. It is difficult to conceive of how it is prejudicial to Mr. Cook in a manner that would outweigh its probative value. The evidence does not import extrinsic bad character or other prejudicial evidence into the trial. I find the probative value is exceedingly high. With no eyewitnesses and an injured party who offers no memory of events, the evidence especially enables the truth-seeking mission of a trial.

[62] As for the proposed admissions by Mr. Cook, this issue has not yet been resolved. The Crown is not obliged to agree to admissions the Defence is prepared to make.

[63] It should be noted that it is open to the trial judge to provide a mid-trial instruction to the jury regarding opinion expert evidence and how it is to be used.

Disposition

[64] For these reasons, I find that the Crown has satisfied its onus on a balance of probabilities to establish the admissibility of the expert opinion evidence of Sergeant Murray deRuiter. I find Sergeant deRuiter can give opinion evidence in the field of dog track, including his reading of Briggs’ behaviour and accurately interpreting what the dog was communicating to him on September 17-18, 2014, while tracking the human scent leading to the discovery of Mr. Cook in a densely forested area away from the collision scene.

2. Forensic Toxicology Expert Opinion Evidence

[65] The Crown seeks an order that Dr. Robert Langille, Forensic Toxicologist at the Centre of Forensic Sciences, can give opinion evidence in that field, including the absorption, distribution and elimination of alcohol; its effects on the human body; a conversion of mmol/L blood result to mgs percent; the range of blood alcohol concentration (BAC) in James Cook’s blood at the time of the motor vehicle collision and that his ability to operate the vehicle was impaired by alcohol. Similarly, that he can provide opinion evidence with the same framework concerning the BAC of Jayde Samarzija.

Overview

[66] Dr. Robert Langille has been declared an expert to give opinion evidence in forensic toxicology on about 450 occasions. The admissible field of forensic toxicology is well established and is settled in law.

[67] Dr. Langille’s qualifications and expertise are conceded by the Defence. In any event, I have found Dr. Robert Langille an expert forensic toxicologist who can give expert opinion evidence in that field.

[68] By way of general overview, Mr. Cook was charged with Impaired Driving Causing Bodily Harm to his friend, Jayde Samarzija, and Fail to Remain at a collision scene. A more complete overview has already been referenced in the reasons above.

Positions of the Parties

Position of the Crown

[69] The Crown submits that the toxicology opinion provides a scientific evidentiary basis for a jury to:

(i) Hear and understand the conversion of blood ethanol result (11 mmol/L) at Royal Victoria Hospital to mgs percent;

(ii) find that the ability of James Cook to operate a motor vehicle at the material time was impaired by alcohol; and,

(iii) understand why, even though the range of BAC (69 to 134 mgs of alcohol) at the time of the collision “straddles” the legal limit of Over 80, his ability to operate a vehicle was impaired by alcohol.

[70] This is especially important in dealing with an anticipated defence that Mr. Cook’s presentation was attributable to injuries, not impairment, and where Officer Black’s opinion as to impairment will be assailed. The Crown further submits that without this opinion evidence, the search for the truth is frustrated, and the Crown will be unable to respond to live issues.

[71] The Crown further submits that the proposed expert opinion evidence by Dr. Langille satisfies the cost-benefit analysis in Abbey. The proposed opinion does not introduce risk, such as irrelevant character evidence, that engage fair trial concerns. Rather, this opinion evidence is “essential to a jury’s ability to understand and evaluate material evidence.” [21]

Position of the Respondent Cook

[72] The sole objection on this Application is the extent of Dr. Langille’s opinion regarding the question of impairment based on BAC alone (conversion of mmol/L blood result to mgs percent) absent any individual testing. It is submitted that allowing a jury to hear the opinions of Dr. Langille regarding certainty of impairment at any level of BAC, regardless of individual factors, would clearly be adverse to the respect owed Parliament’s legislative intent in enacting s. 253 (b) of the Criminal Code which essentially codifies the opinion that BAC is proof of impairment, but at levels inconsistent with the opinion of Dr. Langille.

Context to Forensic Toxicologist’s Opinion: The need to interpret and understand the results of blood samples taken for medical purposes, thus providing evidence of legal impairment

[73] Dr. Langille’s opinion is based on anticipated evidence in this case, much of which was introduced at the Preliminary Hearing. Specifically:

• As set out in the Voluntariness Application material, the initial complainant, Robert Denis, estimated that someone (believed to be James Cook) first banged on his door at about 10:30 p.m. on September 17, 2014. The reasonable inference, then, is that the motor vehicle collision had freshly occurred.

• Also referred to in the Voluntariness Application, blood was taken from James Cook at Royal Victoria Hospital at 3:04 a.m. on September 18, 2014. Analysis detected an ethanol result of 11 mmol/L.

• Dr. Langille converted 11 mmol/L BAC to the equivalent of 44 mgs of alcohol in 100 millilitres of blood. This was the BAC of Robert Cook at the time his blood was collected.

• He converted mmol/L to mgs percent using a procedure that is accepted, “well known and well documented” within the scientific community.

• He then extrapolated the BAC back to the approximate time of driving of 10:30 p.m. The range, in his opinion, is 69 to 134 mgs of alcohol in 100 millilitres of blood. The additional factors upon which he relied in formulating this opinion are set out in his Letter of Opinion. These factors are accepted within the field of toxicology as sound and scientific ones.

• The ability of a driver, with his ethanol level, to operate a motor vehicle would be impaired by alcohol.

• Dr. Langille can explain what is impacted in the human body in this range of BAC, something that jurors cannot know or be left to guess about. For example, impaired drivers:

  (1) Pay less attention to how their vehicles sway within a lane: “the lateral deviation of their relative position”;

  (2) Have diminished reaction time;

  (3) Have diminished ability to properly assess speed and distance;

  (4) Have decreased ability to compensate properly if beginning to drive off road;

  (5) Have a diminished ability to divide their attention, “one of the most sensitive faculties to alcohol”, starting at about 15 mgs; and,

  (6) Have a diminished ability to handle an emergency response.

[74] While not available to attend to give viva voce evidence on the Voir Dire, I ruled that Dr. Langille was not required to give viva voce evidence on this Application. His attendance was unnecessary. The Crown’s Application regarding the admissibility of Dr. Langille’s expert opinion evidence would proceed on the evidentiary record before the court as contained in the Crown’s Application Record.

[75] That evidentiary record included:

1. Dr. Langille’s curriculum vitae.
2. The testimony of Dr. Langille at the Preliminary Hearing on April 3, 2016.
3. The affidavit and toxicology Letter of Opinion of Dr. Robert Langille, dated August 29, 2016.

Analysis

Legal Principles

[76] The legal principles previously set out in these Reasons regarding the proposed expert opinion evidence of Sergeant deRuiter equally apply in respect of the proposed expert opinion evidence of Dr. Langille.

(i) Relevance

[77] I find the toxicology opinion evidence, is so related to a fact in issue that it tends to establish it. It links to Mr. Cook’s state of mind and impairment. As such, it is prima facie admissible. It is logically relevant to live issues so identified.

(ii) Necessity in Assisting the Trier of Fact

[78] In the second of the Mohan criteria, I find that Dr. Langille’s expert opinion evidence is necessary. The ethanol level of the hospital blood test is something that needs to be explained to the triers of fact by a forensic toxicologist, as he has done over 450 times before. Otherwise, it sits as a value disconnected to the context of sobriety or impairment. The opinion is also the basis for the Crown to rejoin to the “I wasn’t impaired, I was just injured” defence.

(iii) The Exclusionary Rule

[79] Dr. Langille’s opinion does not offend any exclusionary rule.

(iv) A Properly Qualified Expert

[80] I have found that Dr. Langille’s qualifications are extensive. He has been qualified previously and by this court to give expert opinion evidence in the field of forensic toxicology. This is also conceded by the Defence.

R. v. Abbey’s Second Stage - Cost-Benefit Analysis

[81] In considering the second stage which requires the balancing of potential risks and benefits of admitting the evidence in order to determine whether the potential benefits justify the risks, the same principles apply as previously set out in the Reasons.

[82] The “benefit” of the cost-benefit evaluation “requires a consideration of the probative potential of the evidence and the significance of the issue” to which it is directed. As set out earlier, these opinions are very probative of inferences relevant to central issues and to whether James Cook was impaired by alcohol. [22]

[83] The reliability of the evidence is to be considered when looking at the potential probative value. It involves the subject-matter of the evidence, the methodology used by the experts in arriving at their opinion, their expertise and extent to which they are impartial and objective. Based on the outline of the evidence and opinions in this Application, I find that the opinion of Dr. Langille is highly reliable.

[84] I do not agree that the opinion evidence of Dr. Langille would “confuse and confound” the jury. I also find that there is nothing in his evidence that would “overwhelm” jurors. Defence counsel submits that they will be proffering their own toxicology expert opinion.

Probative Value Versus Prejudicial Effect

[85] The proposed expert opinion evidence of Dr. Langille is both logically and legally relevant. It is difficult to conceive of how it would be prejudicial to Mr. Cook in the manner that would outweigh this probative value. I further find that the evidence does not import extrinsic bad character or other prejudicial evidence into the trial.

[86] Based on the central issues in this case and anticipated defences, the probative value is exceedingly high. With no eyewitnesses and an injured party who offers no memory of the events, the evidence especially enables the truth-seeking mission of a trial.

[87] The risk with prejudicial evidence is not of conviction, but with an unfocussed trial and a wrongful conviction through an impermissible chain of reasoning. Understandably, cases involving discreditable conduct are replete with prejudicial evidence analysis. There, the concern is with evidence that invites propensity reasoning by introducing character or disposition as circumstantial evidence of conduct: “Prejudice is a surrogate for proof, character for conduct.” [23] That is far from the case here.

[88] As stated by LaForest J., dissenting on other grounds, stated in R. v. Corbett:

By prejudice is meant, of course, that the acceptance of such evidence could operate unfairly and unjustly, and not merely unfortunately to the accused; see Wray, supra, per [page725] Martland J. at p. 293; Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.). [24]

[89] I find the admission of the expert opinion evidence of Dr. Langille does not constitute legal prejudice.

[90] As previously noted, it is open to the trial judge to give a mid-trial instruction to the jury in respect of expert opinion evidence and how it is to be used.

Disposition

[91] I find that the Crown has satisfied its onus on a balance of probabilities to establish the admissibility of the expert opinion evidence of Dr. Langille.

[92] I find that Dr. Robert Langille, Forensic Toxicologist at the Centre of Forensic Sciences, can give opinion evidence in that field, including absorption, distribution and elimination of alcohol; its effects on the human body; conversion of mmol/L blood result to mgs percent; the range of BAC in James Cook’s blood at the time of the motor vehicle collision and that his ability to operate the vehicle was impaired by alcohol. Similarly, that he can provide opinion evidence within the same framework concerning the BAC of Jayde Samarzija.

Conclusion

[93] For these Reasons, the Crown’s Application is granted.

DiTOMASO J.

Released: February 17, 2017

[1] R. v. Shafia, 2016 ONCA 812, [2016] O.J. No. 5627 (C.A.) at para. 226 [2] White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, supra, at paras. 22 and 49 [3] R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534 (C.A.), leave to appeal refused [2010] SCCA No. 125, at para. 76 [4] Ibid, paras. 77, 80, 85; R. v. Sekhon, 2014 SCC 15, [2014] S.C.J. No. 15, at para. 43 [5] R. v. Mohan, [1994] 2 SCR 9, [1994] S.C.J. No. 36, at para. 17; R. v. Shafia, 2016 ONCA 812, supra, at para. 227 [6] R. v. Abbey, 2009 ONCA 624, supra, at paras. 75, 83-84; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, supra, at para. 23; R. v. Shafia, 2016 ONCA 812, supra, at para. 227 [7] R. v. Abbey, 2009 ONCA 624, supra, at para. 82 [8] Ibid [9] R. v. Underwood, 2002 ABCA 310, [2002] A.J. No. 1558 (CA), at para. 25; R. v. Luciano, 2011 ONCA 39, [2011] OJ No. 339 (CA), at para. 205 [10] Ibid, at para. 242 [11] R. v. Blackman, 2002 SCC 67, [2002] 2 SCR No. 298 (SCC), at para. 80 [12] R. v. Luciano, 2011 ONCA 39, supra, at para. 205 [13] R. v. Shafia, 2016 ONCA 812, supra, at para. 227 [14] R. v. Haas, 2006 BCCA 106, supra, at para. 14 [15] R. v. Abbey, 2009 ONCA 624, supra, at para. 79; R. v. Shafia, 2016 ONCA 812, supra, at paras. 231-234 [16] White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, supra, at para. 24 [17] Ibid, at para. 24 [18] R. v. Mohan, [1994] 2 SCR 9, supra, at para. 18 [19] R. v. Mohan, [1994] 2 SCR 9, supra, at para. 22 [20] R. v. Mohan, [1994] 2 SCR 9, supra, at para. 19 [21] R. v. Shafia, 2016 ONCA 812, [2016] OJ No.5627, at para. 232 [22] R. v. Abbey, 2009 ONCA 624, supra, at para. 87 [23] R. v. Luciano, 2011 ONCA 39, supra, at paras. 230-233 [24] R. v. Corbett, [1988] 1 SCR 670, at para. 122