CITATION: R. v. Kamermans, 2017 ONSC 4968
BELLEVILLE COURT FILE NO.: CR 14 – 0046
DATE: 2017-08-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
J. Whyte, for Her Majesty the Queen
- and -
ROB KAMERMANS AND MARY KAMERMANS
accused
D. Stein, for Rob Kamermans and agent for J. Lloyd, for Mary Kamermans
HEARD: August 17, 2017
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.5 OF THE CRIMINAL CODE OF CANADA
REASONS FOR RULING ON NEW EXPERT WITNESS
Abrams, J.
BACKGROUND
[1] Dr. Kamermans and his spouse, Mary Kamermans, are charged on a nine count indictment with offences related to Ontario Health Insurance Plan (OHIP) billing fraud, making false documents pursuant to the Marihuana Access Regulations, possession of proceeds of crime and trafficking in a controlled substance.
[2] The Kamermans elected to be tried by a judge sitting with a jury. The matter was pre-tried on October 20, 2016, when three weeks for trial were scheduled commencing September 11, 2017.
[3] An application under 11(b) of the Charter was brought in April 2017, which was unsuccessful. That said, defence counsel pointed out that Dr. Kamermans reached the five year anniversary of his bail hearing in this matter today, which is important to note in the context of this motion to adjourn the trial dates.
[4] Defence brought the motion orally seeking an adjournment alleging:
The Crown’s failure to comply with the requirements set out in s. 657.3 of the Criminal Code; and
Breach of the accused’s s.7 Charter rights in the context of the accused’s inability to make full answer and defence in response to a proposed new expert witness.
[5] By email message, dated August 8, 2017, the Crown advised Defence for the first time that it would be calling Dr. Harold Kalant as an expert witness. The Crown further advised that no report had yet been obtained from Dr. Kalant. The Crown did, however, produce a copy of Dr. Kalant’s Curriculum Vitae, which was marked as Exhibit #1. Among his other purported accomplishments, Dr. Kalant has authored approximately 400 journal articles, book chapters and reports touching upon, inter alia, the health effects of cannabis.
POSITIONS OF THE PARTIES:
[6] Defence contends that it was completely taken by surprise by the timing of this recent development. Moreover, notwithstanding the Crown’s notice via email, Defence asserts that the Crown has not fully complied with its obligations under s.657.3(3)(a)(ii) & (iii) of the Criminal Code. Specifically, Defence points out that there is no description [in the email] of the expertise proposed by the witness, apart from the broader qualifications outlined in the C.V. Put simply, Defence has been provided with Dr. Kalant’s name, a copy of his C.V., but no specific area of expertise proposed, and no firm indication as to when his report will be forthcoming, with the trial 25 days away (inclusive of weekends).
[7] Defence points to other problems regarding how this issue developed. Filed as Exhibit #2 is a copy of the Crown’s pre-trial memorandum, the tendering of which was unopposed by the Crown. On page 3 under “CROWNS INTENTIONS AT TRIAL”, under the fourth item, it says:
To call an expert on the meaning of “medical practitioner” and possibly to comment on the statement on the B1/B2 forms that a medical practitioner must sign the forms and whether that necessarily entails that the person be licenced in the province in which they are signing the form.
[8] Defence contends that, not knowing exactly what Dr. Kalant is proposed to say, the qualifications set out in his C.V. do not appear to match what the unnamed expert was purported to address in the per-trial memorandum.
[9] Further, filed as Exhibit #3 is a copy of email correspondence sent from Defence to the Crown, dated February 2, 2017, in which a number of issues arising from a meeting were confirmed, including:
I appreciate your position on Dr. Venier’s evidence. My understanding is that you will only seek to have her testify on the charting requirements by OHIP and she will not be providing her opinion on the medical uses of marihuana, “prescribing” marihuana, or the interpretation of the MMAR. I do not oppose her qualifications to give evidence in the area you propose.
If and when you obtain an expert opinion on the appropriate use of medical marihuana, limits on medical practice imposed by the College of Physicians and Surgeons of Ontario, or the proper interpretation of the MMAR’s and provide it to me, I will let you know my position on the admissibility as soon as possible. I believe there is a good likelihood I will ask that it [the expert issue] be screened by the trial judge during our motions’ week for admissibility.
[10] Parenthetically, I heard the pre-trial motions over the course of nine days in June 2017, when the issue of an additional expert witness being called by the Crown was never raised before me.
[11] Accordingly, Defence contends that an expert witness with Dr. Kalant’s qualifications was never anticipated in the Crown’s pre-trial memorandum of October 2016. Moreover, Defence wrote to the Crown in February, 2017, to confirm that if the Crown intended to call an additional expert witness to address the evidentiary issues set out in the paragraph reproduced above, to please do so in order that the issue could be screened in June, 2017, during the week that was set aside for pre-trial motions.
[12] In sum, Defence asserts that, having regard to the jurisprudence decided under s. 657.3 of the Criminal Code, the appropriate remedy is to adjourn the trial in order to allow the accused the opportunity to make full answer and defence to the proposed new expert witness.
[13] The Crown concedes that it became apparent during the preliminary inquiry that Dr. Venier’s qualifications to opine about matters such as the medical use of marihuana, prescribing marihuana etc. would be opposed at trial. Thus, the Crown sought approval to hire an additional expert in or about April 2017, which approval was received in “mid to late April”. However, it was not until August 8, 2017, that the Crown disclosed whom it would be calling: Dr. Kalant. That said, with reference to Exhibit #3, the Crown asserts that there was no secret that an additional expert would be called to address the “expanded area”, which I took to mean the medical use of marihuana, prescribing marihuana etc. Rather, it was simply a question of who would be called. The Crown agreed that Dr. Kalant has yet to deliver his report. In the circumstances, the Crown contends that an adjournment is neither necessary nor appropriate because, to speak plainly, the case will be “dead” if it is adjourned, having regard to s. 11(b) of the Charter. Rather, the Crown contends that the matter can be cured by a direction from the court that Dr. Kalant be called as the Crown’s last witness, which would afford ample time for Defence to address his expected evidence. There could be an additional order for further particulars of Dr. Kalant’s proposed evidence. Finally, there could be an order for the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in Dr. Kalant’s evidence, all of which s. 657.3(5) of the Criminal Code authorizes.
ANALYSIS AND THE LAW:
[14] Section 657.3 of the Criminal Code states, inter alia:
657.3(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,
(a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of trial or within any period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by
(i) the name of the proposed witness,
(ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about the area of expertise, and
(iii) a statement of the qualifications of the proposed witness as an expert.
(b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period of time before trial, provide the other party or parties
(i) a copy of the report, if any, prepared by the proposed witness for the case, and
(ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based;
[15] On the record before me, it is clear that the Crown complied with the notice provision as it pertains to providing the name of the proposed witness. However, I find that the Crown has not complied in terms of providing a description of the area of expertise of the proposed witness sufficient to permit the parties to inform themselves about the area of expertise. Moreover, although the Crown eventually served a copy of Dr. Kalant’s C.V., which is 42 pages in length and spans a professional career of over seven decades, the notice did not, at least as it was explained to me, never being provided with a copy, narrow the scope of expertise so as to allow the parties to understand how the proposed witness’s qualifications touch upon the issues in this prosecution.
[16] To recall, Dr. Kalant has not yet delivered his report, nor has the Crown provided a summary of the anticipated opinion. Setting aside the failure of the Crown to advert to giving notice to call someone with Dr. Kalant’s expertise at the pre-trial conference, there was a second opportunity to address the issue when Defence counsel wrote to the Crown on February 2, 2017, and raised the issue squarely. Granted, the Crown had not yet been given authority to retain the expert. However, accepting the contention that there was never any secret that an additional expert would be called to address the “expanded area”, it would have been easy enough for the Crown to reply and say that it intended to call someone with the requisite expertise, if authorized. In any event, by the Crown’s own admission, it was mid to late April 2017, when authority was granted to retain an expert to address the “expanded area”, and still the Crown did not respond to Defence counsel’s correspondence of February 2, 2017. Had the Crown chosen to respond, either immediately following receipt of the February 2nd correspondence, or at least by the time authority was granted to retain the expert, I find that the issue would have been suitably flagged so as to be raised before me during the pre-trial motions in June, three months in advance of the trial, as opposed to 25 days prior.
[17] Further, the precondition for the delivery of a report or summary of the opinion requires that either be provided within a reasonable period of time before trial. In my view, a reasonable period of time is one in which Defence is given an opportunity to receive and review the report or summary with his or her client so as to determine whether it is necessary to retain an expert to respond. If counsel is instructed to retain an expert, the reasonable period by necessity must also include time for Defence to identify an expert who is available for trial, and who can provide the same materials as required in s. 657.3(3)(b)(i) & (ii) of the Criminal Code by no later than the close of the case for the prosecution, as required by s. 657.3(3) (c) of the Criminal Code.
[18] There may be situations in which 25 days prior to trial would be a reasonable period of time for delivery of an expert’s report or summary of the opinion anticipated. However, in my view, not in this case. Dr. Kalant’s C.V. alone is 42 pages in length. He has published in excess of 400 journal articles, book chapters and reports touching upon, inter alia, the health effects of cannabis. Presumably he has been qualified to give expert evidence in other cases, in various courts, at different levels, the full particulars of which the Crown has yet to identify. Further, he has been called to give evidence before government committees. It will take significant time for Defence to investigate these matters, which would include obtaining transcripts of Dr. Kalant’s prior testimony, in preparation for his cross-examination.
[19] I have been provided with authorities from our Court of Appeal and this court that are responsive to the issues before me, notably: R. v. Horan, 2008 ONCA, a decision of the late Justice Rosenberg and R. v. Igor Kresko, 2012 ONSC, a very fulsome review of the law by Himel J. In my view, these cases and others stand for the general proposition that the appropriate remedy, in circumstances such as these, is to adjourn the case to allow Defence to conduct whatever further preparation or investigation may be necessitated by the [recent] disclosure.
[20] I am also aware of, and have considered, the cases that stand for the proposition that a fair trial is a trial that appears fair, both from the perspective of the accused and the community. Further, a fair trial must not be confused with the most advantageous trial possible from the accused’s point of view. (See R. v. Lyons, 1987 24 (SCC), [1987] 2 S.C.R. 309, at p. 362, per La Forest J.)
[21] In the context of those cases, the Crown asks the court to consider whether there is unfairness, in all of the circumstances, which cannot be cured by some remedy other than an adjournment. Respectfully, to answer the question, framed in that manner, would call for the court to speculate about matters that are simply unknown at this juncture. Firstly, what specific expertise is proposed from Dr. Kalant? Secondly, what opinions will be expressed in Dr. Kalant’s report? Thirdly, once Defence has had an opportunity to digest Dr. Kalant’s report, how long will it take to find an expert to respond who is available for the trial scheduled to commence September 11, 2017? In my view, the Kamermans are not asking to be afforded a perfect trial in their request for an adjournment. Rather, they are asking to be afforded the very basic Charter entitlement to make full answer and defence to the proposed new expert witness.
CONCLUSION
[22] The oral motion for an adjournment is granted. The matter is adjourned to criminal assignment court September 1, 2017 at 10:00 a.m. to set new trial dates. In the alternative, should the Crown decide not to call Dr. Kalant, which is the Crown’s prerogative, the matter shall proceed to trial September 11, 2017, as scheduled.
Mr. Justice Brian W. Abrams
Released: August 21, 2017
CITATION: R. v. Kamermans, 2017 ONSC 4968
BELLEVILLE COURT FILE NO.: CR 14 – 0046
DATE: 2017-08-21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
- and -
ROB KAMERMANS AND MARY KAMERMANS
Defendants
REASONS FOR RULING ON
NEW EXPERT WITNESS
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.5 OF THE CRIMINAL CODE OF CANADA
ABRAMS, J.
Released: August 21, 2017