R. v. Downs – Voir Dire
Conlan, J. – Reasons for Ruling
MONDAY, MAY 7, 2018
R E A S O N S F O R R U L I N G
CONLAN, J. (Orally):
In short, the application is granted, and Officer Boniface will be permitted to give expert opinion evidence at trial in the areas indicated on Exhibit Number 3, filed on the voir dire; those areas outlined on the one page document that is titled expert qualification – Constable Timothy Boniface, Waterloo Regional Police Service.
My reasons for deciding the application that way are as follows: Part one, Introduction:
Mr. Tyler Downs stands charged on a two count indictment, and has elected to be tried in the Superior Court of Justice with a judge and jury. We selected 12 jurors and two alternates today, and the trial proper will commence on Monday, May 14, 2018.
Count one on the indictment alleges that Tyler Downs on or about February 17, 2017, at Owen
Publication Ban
R. v. Downs – Voir Dire
Conlan, J. – Reasons for Ruling
Sound, did by criminal negligence while street racing cause bodily harm to Nicholas Heinzer, contrary to Section 249.3 of the Criminal Code.
Count two is an allegation that Mr. Downs at the
same place on the same date did operate a motor vehicle in a race with another motor vehicle on a street, to wit: 10th Street East in Owen Sound, in a manner that was dangerous to the public, and thereby caused bodily harm to Mr. Heinzer, contrary to Section 249.4(3) of the Criminal Code.
The Crown has applied to this court to introduce expert opinion evidence at trial. The proposed expert is Constable Timothy Boniface of the Waterloo Regional Police Service. The Crown asks that Officer Boniface be recognized as a properly qualified expert collision reconstruction investigator, and be entitled to give opinion evidence at trial in the following areas of technical knowledge:
One, scene evidence identification and interpretation; two, drag factor determination; three, vehicle dynamics; four, speed
Publication Ban
R. v. Downs – Voir Dire
Conlan, J. – Reasons for Ruling
determination; five, forensic mapping and scene diagramming; six, time distance analysis; seven, sequence of events vehicle placement pre/post collision; and, eight, retrieval and interpretation of vehicle event data recorder analysis.
In terms of witnesses on the voir dire there was only one called by the prosecution, that being Officer Boniface. The burden of proof on the
application rests with the Crown. The standard
of proof is on a balance of probabilities.
Part two, Analysis:
The jurisprudence over the years since the Supreme Court of Canada decided Mohan in 1994, indicates that the following criteria ought to be considered on this type of application:
One, relevance, which has two sub-components, logical relevance and legal relevance; next, necessity; third, the absence of an exclusionary rule; and, fourth, a properly qualified expert.
Although the criterion of reliability is not
Publication Ban
R. v. Downs – Voir Dire
Conlan, J. – Reasons for Ruling
specifically mentioned as one of the factors in the Mohan decision, it is trite law that
reliability can be considered as part of the overall analysis. At the end of the day, the court must engage in a probative value versus prejudicial effect balancing exercise.
I will deal with each of these factors in turn.
In terms of relevance, Mr. Grace, very experienced defence counsel, concedes that item in this matter, and I agree with that concession.
The third factor, the absence of an exclusionary rule. That is not being contested on this application, and I agree with that concession made by the defence. There is no exclusionary rule that would prohibit the introduction into evidence at trial of Boniface’s report.
In fact, I note that this report, unlike some in criminal driving-related cases, is careful not to use ultimate issue expressions. For example, nowhere in the report is it indicated that Mr. Downs was driving dangerously, per se, or that he was criminally negligent. And that includes the
Publication Ban
R. v. Downs – Voir Dire
Conlan, J. – Reasons for Ruling
conclusion section of the report at page 15.
On the fourth item, a properly qualified expert, Mr. Grace concedes that item, and I agree with that concession. Having reviewed Boniface’s prior expert opinion evidence experience and his quite thorough CV, and in light of the fact that he is a level four collision reconstructionist, I am satisfied on balance that he is more than a properly qualified expert.
On the issue of necessity, the law is clear that expert evidence to be necessary must likely be outside the experience and knowledge of the trier of fact, in this case, the jury, and must be assessed in light of its potential to distort the fact finding process. Necessity ought not to be judged by too strict a standard.
The possibility that evidence will overwhelm the
jury and distract them from their task can often be offset by proper instructions from the trial judge. And, of course, at the relevant time I will seek input from counsel, but I intend to give the usual instruction to the jury about expert opinion evidence, both at the start of
Publication Ban
R. v. Downs – Voir Dire
Conlan, J. – Reasons for Ruling
Boniface’s trial testimony and as part of the concluding instructions.
I am satisfied on balance in this case that given the technical nature of accident reconstruction, and given the relatively complex nature of the CDR data in this case, it is necessary, judged by not too strict a standard, for this jury to hear from Boniface. I say that because otherwise I am concerned that the jury may draw inaccurate and/or unreliable conclusions on the technical data.
The nature of accident reconstruction work, and, in particular, the CDR data, is, indeed, outside the experience and knowledge of the members of the jury, in my view.
I acknowledge Mr. Grace’s point that there are a number of eyewitnesses in this case, which may or may not be fortunate, but that still, in my view, with great respect for Mr. Grace, does not take away from the fact that only someone like Boniface can speak about the CDR data, the road evidence, the damage to the vehicles, and those
types of technical issues. Eyewitnesses are of
Publication Ban
R. v. Downs – Voir Dire
Conlan, J. – Reasons for Ruling
no assistance in that regard.
Mr. Grace, in my humble view, made some very valid points in a relatively brief cross-examination of Boniface today, but those items will go to weight, not to admissibility. The fact that Boniface did not speak to any of the eyewitnesses, and did not review any of the witness statements, and did not necessarily use the same or a very similar vehicle as Mr. Downs was driving on the date in question, all those types of things will go to weight.
They go to issues, in my view, of ultimate reliability, not threshold reliability, and it’s the latter that we are concerned with here on the application.
In the final analysis on the issue of reliability, I do note that Boniface used an expression that I am sure the defence is grateful for, and in part it’s to the credit of Boniface for being candid, but I’m sure the defence is happy with the expression “certainly plausible”. But the defence can take that up with Boniface and the jury at trial. That, again, goes to
Publication Ban
R. v. Downs – Voir Dire
Conlan, J. – Reasons for Ruling
weight, not to admissibility.
On probative value versus prejudicial effect, the probative value – I think is moderately high in this case. I’m not sure it’s quite as high as the Crown has indicated, but it’s fairly high. Boniface can talk about his interpretation of the CDR data. He can talk about his interpretation of markings on the roadway. He can talk about the damage to the vehicles, and he can talk about the speed analysis. And all of those things, in my view, are quite probative to whether Mr. Downs was criminally negligent by street racing, and/or whether he drove dangerously by street racing.
On prejudicial effect, there is always some degree of prejudicial effect to the accused when the Crown calls an expert witness. But, again, in my view, this court can take some measures to reduce, as much as possible, any degree of prejudicial effect through proper limiting instructions to the jury, which subject to hearing submissions from counsel at the time, I think ought to be given twice, both when Boniface testifies and as part of the concluding package of instructions.
Publication Ban
R. v. Downs – Voir Dire
Certification
Part three, Conclusion:
For all of those reasons, I am satisfied on a balance of probabilities that the Crown has established that the application ought to be granted.
Thank you, counsel.
P R O C E E D I N G S A D J O U R N E D
FORM 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Susan Marriott, certify that this document is a true and accurate transcript of the recording of R. v. Downs in the Superior Court of Justice held at 611 9th Avenue East, Owen Sound, taken from Recording 1011-crtrm#201-20180507-085804—10-CONLANC, which has been certified in Form 1.
Date Susan Marriott
ACT ID #7183710780
Publication Ban