CITATION: R. v. Browne, 2017 ONSC 5059
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: COROZA J.
COUNSEL: Alex Cornelius and Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
ENDORSEMENT
Admissibility of Dr. Popovic’s CFS Report
Overview
[1] The Crown called Dr. Maja Popovic from the Centre of Forensic Sciences (CFS) to provide expert opinion evidence on the collection and analysis of DNA. The Crown seeks to file as an exhibit, and therefore as evidence the jury may use in deliberations, a report authored by Dr. Popovic on September 11, 2013.
[2] In my view, while the report is relevant and material, it is not admissible.
[3] It is not admissible because the cost of leaving this report in the jury room outweighs any identifiable benefit to the jury.
Analysis
[4] An expert report provides notice of what the expert witness will testify to at trial. In the absence of the expert, a party may tender the report as evidence pursuant to s. 657.3 of the Criminal Code. In this case, resort to s. 657.3 was not necessary because Dr. Popovic attended and provided viva voce evidence.
[5] The evidence of this witness is her testimony, not her report.
[6] I acknowledge that often in criminal trials, counsel agree that an expert report can go in as a numbered exhibit. However, in this case, counsel for Mr. Browne submit that the filing of the report is not appropriate because it is prejudicial.
[7] The Crown submits that the report of Dr. Popovic can be properly filed as a numbered exhibit because it would allow the jury to understand complex evidence. I am not persuaded by this argument. It seems to me that Dr. Popovic’s opinion was provided to the jury in a straightforward and direct manner. The jury does not need the report to understand her opinion.
[8] Essentially, Dr. Popovic has provided the jury with an opinion about the profile of DNA found on the deceased’s left hand fingernail clippings. The opinion of Dr. Popovic is that Mr. Browne cannot be excluded as the source of the minor profile found in the DNA mixture located on the clippings. Dr. Popovic has described for the jury how she reached that conclusion.
[9] I have carefully reviewed the September 11, 2013 report. In my view, the report adds nothing to her opinion given at trial. Indeed, I agree with Ms. Morphew that many of the items referenced in the report were not brought out in the viva voce evidence of the expert. For example, page 4 of this report refers to an “Evidence List Report” and contains a list of items that has been designated a CFS item number. Dr. Popovic did not mention all of these items in her viva voce evidence. The report also refers to other reports that were authored by Dr. Popovic. If I were to allow this report into the jury room, the Crown would benefit from having a report in evidence, portions of which contain matters that were not explored by any counsel in either examination in-chief or cross-examination. The jury may very well speculate about these matters. It could confuse them and mislead them.
[10] Furthermore, the report contains statements such as “this report contains interpretations and opinions based on scientific data”. It seems to me that this statement is an assertion that is disputed by the defence in this case. Ms. Morphew in her very close cross-examination of the witness attempted to call into question the reliability of Dr. Popovic’s findings. For example, one of her themes was to confront the expert with an alternative interpretation of what Dr. Popovic referred to as “stutter”. Whether the jury agrees with counsel is an entirely different manner. However, in my view, there is a risk that the jury may place great weight on this statement as suggesting that Dr. Popovic’s opinion is scientifically reliable and, as such, it is infallible.
[11] Therefore, I disagree with the Crown’s submission that the report does not create prejudice to the accused.
[12] The Crown submits that it is unfair to not admit the report but to allow the jury to have source material that was referred to in cross-examination. Indeed, several documents were tendered by Ms. Morphew during cross-examination and marked as numbered exhibits.
[13] After careful reflection, I am of the view that there is a distinction to be made between these source documents and the CFS report. First, the law is that an accused is permitted a wider latitude in introducing evidence than is the Crown (See R. v. Caesar, 2016 ONCA 599 at para. 67).
[14] Second, the source documents were items that Dr. Popovic relied upon for her ultimate opinion. The source documents are quite properly before the jury because the jury requires these documents to understand the defence position on this matter. The source documents are not reports.
[15] Third, I do not think the list of definitions and the flow chart tendered as an exhibit during cross-examination is problematic. These documents are aids. Dr. Popovic agreed that the definitions and the flow chart were accurate. These documents will help the jury in recalling certain words that were used by the expert and the steps in DNA analysis.
Conclusion
[16] There is a strong line of appellate authority that holds that expert reports are not admissible when viva voce evidence is led. To allow the report to be filed allows for inclusion of an incomplete statement that could well mislead the jury. The doctor was called, examined and cross-examined. The report has “no greater value than and all of the dangers of an incomplete transcript of evidence”. (See Ferraro v. Lee (1974), 1974 440 (ON CA), at para. 8)
[17] Therefore, I conclude that absent any agreement to the contrary, the expert evidence before the trial court is the viva voce evidence of the expert, and not the report the expert provided before trial.
[18] I do not suggest that a report is never admissible when an expert is called to provide viva voce evidence. However, in this case, allowing the CFS report in the jury room would be the equivalent of having an incomplete transcript of Dr. Popovic’s evidence available to the jury during deliberation.
[19] The report is inadmissible as a numbered exhibit.
Coroza J.
DATE: February 15, 2017
CITATION: R. v. Browne, 2017 ONSC 5059
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: COROZA J.
COUNSEL: Alex Cornelius and Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
ENDORSEMENT
COROZA J.
DATE: February 15, 2017