Court File and Parties
COURT FILE NO.: 47/17
DATE: 20180612
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Malcolm Copeland
COUNSEL:
A. Khoorshed, for the Crown
E. Sapiono and A Trica, for the Accused
HEARD: June 11, 2018
Restriction on Publication
RESTRICTION ON PUBLICATION
Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Reasons for Decision
Admissibility of expert report of Michael Davis
Woollcombe J.
[1] The accused faces a charge of second degree murder. The trial is well underway.
[2] At this juncture, the Crown seeks a ruling that a “Bloodstain Pattern Analysis Report” prepared by Staff Sergeant Michael Davis is admissible to be filed as an exhibit and to go to the jury. The defence opposes the admission of the report.
[3] Staff Sergeant Davis was qualified, on consent, as an expert who could provide opinion evidence on the interpretation of blood stains in order to determine their cause. He has testified and was cross-examined. During his examination in chief, the Crown took the expert through a series of photographs from the scene. The expert testified about the location and type of bloodstains he was able to identify in the various photographs. He also offered opinion evidence respecting what the bloodstains indicated. This included opinion evidence about the deceased’s location when she received certain injuries and about what could be inferred as to the number of injuries she received.
[4] On consent, the power point presentation of photographs that the officer testified about was entered as Exhibit 20.
[5] What remains to be determined is whether the full expert report, containing not only photographs, but also descriptions of the various bloodstains, a list of 16 conclusions and a glossary of terms, should also be made an exhibit.
[6] The Crown’s purpose in adducing bloodstain evidence from the expert is, primarily, so as to enable him to use the opinions of the expert provided when he cross-examines Mr. Copeland. It is anticipated that Mr. Copeland will testify in support of his claim of self-defence.
[7] The Crown says that it would be helpful for the jury to have the expert report because it will help them understand the scientific expert evidence. Effectively, he says that the report is a “refresher”. He says that the evidence is complicated and that the report ties the expert’s opinions to the various photographs. He submits that there is no prejudice in having the jury be able to look at the report to assist them during their deliberations.
[8] The Crown relies on the decision in R. v. Sandham, 2009 CanLII 58982 (ON SC), [2009] O.J. No. 4517, in which Heeney J. commented at para. 24, albeit in obiter, that expert reports are “frequently entered as exhibits”. He also relies on the decision of Goodman J. in R. v. Millard, [2016] O.J. No. 3196. Justice Goodman permitted the use of power point presentations during the evidence of the experts, and permitted the presentations to be made exhibits. Those power point presentations incorporated the conclusions of the experts, although Goodman J. did require some editing and redactions of the slides.
[9] In response, it is the defence position that this report ought not to be admitted. He reminds me that the jury will have a review of the relevant evidence in the Crown’s closing and in my final instructions. He says it is prejudicial for the jury to effectively have the expert’s examination in chief, but not evidence he provided under cross-examination. He submits that the report is redundant, given the expert’s testimony, and that there is a danger that the jury will think hearing it more than once makes it more truthful. He submits that it is unnecessary as the evidence was not particularly complicated or beyond the grasp of the jury. Finally, counsel submits that there are extra pictures and content in the report that were not specifically referred to by the officer in his evidence, although it is true that he adopted the entire contents of his report.
[10] The defence relies on the comments of Boswell J. in R. v. Johnson, 2017 ONSC 2084, where, at paras. 14-15, he commented on a number of reasons why such reports are often not filed as exhibits. The defence also relies on the comments of Goodman J. at para. 27 of Millard in which he stated that, generally, experts’ reports ought not to be filed as exhibits.
[11] I have carefully reviewed my notes of the evidence of Staff Sergeant Davis and his 35 page report.
[12] In many cases, both sides agree that an expert should be permitted to testify and that his or her expert report should be filed as an exhibit and go to the jury. This is not such a case.
[13] When one side or the other objects to the admissibility of such a report, a trial judge must consider and balance the probative value and the prejudicial effect of filing the expert’s report as an exhibit.
[14] I have concluded that the expert report should not be filed as an exhibit in this case. I reach that decision for the following reasons.
[15] First, I acknowledge and adopt the general reasons why expert reports are usually inadmissible as exhibits as set out by Boswell J. at para 15 of his decision in Johnson:
15 There may be a number of valid reasons supporting the convention. Experts' reports are, in essence, prior consistent statements, with all the attendant baggage that goes along with them. It is also not the practice to provide the jury with transcripts or summaries of the evidence of certain witnesses and not others. Filing experts' reports as exhibits would do just that. It would have the effect of emphasizing the evidence of the experts, even though juries are repeatedly told they are just like any other witness.
[16] Like Boswell J. concluded in that case, I accept that filing the report may make it easier for the jury to recall parts of the expert’s opinion. This is one of the reasons for which the Crown submits that the report ought to be admitted – it will assist the jury.
[17] However, I am concerned that the report will not fairly assist the jury because the report really captures only the evidence that was adduced by the Crown in examination in chief. It does not capture the cross-examination. While I acknowledge the Crown’s position that the defence cross-examination was relatively brief, there were a number of areas that were covered that are not dealt with in the expert report. There is a risk that it would be unbalanced, and unfair to the defence, for the jury to have the expert report but not a transcript of the cross-examination of the expert.
[18] Second, I think it is of some significance that there are a number of aspects of the report that the expert was not questioned about at all during his evidence. There are photographs of bloodstains and opinions about those bloodstains offered in a number of places in the report that the jury has heard nothing about. The observations and photographs on pages 23, 26, 30 and 31 are all examples of this. I am concerned about the report going before the jury when they have not had these photographs explained to them and have heard from the expert none of the evidence contained in these parts of the report. Coroza J. dealt with this concern directly in his decision in R. v. Browne, 2017 ONSC 5059 at para. 9. In his ruling excluding the expert report, he observed that the expert report contained items that were not brought out in the testimony of the expert. He concluded that this created a danger because of the risk that “the jury may well speculate about these matters. It could confuse them and mislead them.”
[19] Third, I have a concern about the jury in this case over-emphasizing the expert opinion evidence if they have not only the expert’s testimony, but also the full report. This is particularly so because this is the only witness whose evidence is reduced to writing and was effectively be before the jury twice. Despite an instruction that the expert evidence should be given no more weight than any other witness’ evidence, I find that having a copy of this 35 page report in the jury room might lead to an overemphasis of its content.
[20] Fourth, I think that admission of this lengthy report runs the risk of distracting the jury. They will, ultimately, have to assess this evidence in light of the whole case. And, this expert opinion evidence may or may not, ultimately, have much significance to the decision that the jury will have to make. There are 16 conclusions set out at the end of the report. The expert has testified about those conclusions that the Crown thought, at this point, were the most relevant. These may or may not be relevant, depending on what the accused says when he testifies and when he is cross-examined. It may well be that much of the report becomes irrelevant. Presumably the Crown will identify the most relevant conclusions in his closing submissions. I will also highlight those that are the most relevant, depending on how the evidence unfolds, in my final instructions. I think it is better for the jury to be reminded in the closing addresses and charge what the important parts of the expert’s opinion are, as they relate to the evidence of the accused, rather than being distracted by a lengthy report that may turn out to be largely irrelevant.
[21] In conclusion, while I am satisfied that the report may be of some assistance to the jury, its helpfulness is, in my view, outweighed by the concerns I have set out. The jury has heard the expert’s evidence. It is not complicated science and the expert has explained it in a clear and understandable manner during his evidence. This is not the sort of expert report referred to in some of the cases in which there is a lengthy and helpful overview of the relevant scientific principles at play. In fact, the report does not, other than in the glossary, really explain the science in a manner that the jury might need. I am confident that they will recall the expert’s evidence about the relevant various stains when they review the photographs in the power point, which will be before them as Exhibit 20.
[22] I will permit the Crown tender as an exhibit the glossary found at page 35 of the expert report. As the defence conceded, it provides a useful recap of the relevant terms and may be helpful to the jury.
Woollcombe J.
Released: June 12, 2018
COURT FILE NO.: 47/17
DATE: 20180612
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Malcolm Copeland
REASONS FOR DECISION
Admissibility of expert report of
Michael Davis
Woollcombe J.
Released: June 12, 2018