Court File and Parties

COURT FILE NO.: 15-SA5047 DATE: 2018/10/17 ONTARIO SUPERIOR COURT OF JUSTICE PUBLICATION BAN IN EFFECT UNDER S. 486.4 OF THE CRIMINAL CODE OF CANADA

B E T W E E N:

HER MAJESTY THE QUEEN Applicant – and – C.G. Respondent

Anne Fitzpatrick, counsel for the Applicant Michael Davies, counsel for the Respondent

HEARD: October 5, 2018

Ruling on Production of Defence Expert’s Draft Report

RYAN BELL J. (Orally)

Background

[1] At the hearing of the Crown’s application for a declaration that C.G. is a dangerous offender, Dr. Derek Pallandi was called as an expert by the defence. He was qualified by the court as an expert witness. On cross-examination, Dr. Pallandi stated that he did not recall there being any drafts of his report. Following the completion of the cross-examination, defence counsel advised the court that a draft of Dr. Pallandi’s report exists. A copy of Dr. Pallandi’s notes has been provided to Crown counsel.

[2] The Crown asks for an order requiring production of the draft report. Crown counsel submits that any litigation privilege attaching to the draft report was waived when Dr. Pallandi was called as a witness at the hearing, and that the importance of his opinion in the context of a dangerous offender application militates in favour of production.

[3] For the following reasons, I decline to make the order requested by the Crown.

Analysis

[4] In White Burgess Langille Inman v. Abbott and Haliburton Co., at paras. 46-54, the Supreme Court of Canada sets out the principles concerning the admissibility of expert evidence (2015 SCC 23, 2 S.C.R. 182, as cited by the Court of Appeal in R. v. Natsis, 2018 ONCA 425, 140 O.R. (3d) 721, at para. 11). Of these, the most fundamental is that expert witnesses have a duty to assist the court that overrides their obligation to the party calling them; if the witness is unable or unwilling to fulfill that duty, their evidence should be excluded.

[5] In Natsis, the issues before the Court of Appeal were whether the trial judge erred by (i) admitting the expert opinion evidence of a police accident reconstruction officer the appellant alleged was tainted by bias; and (ii) refusing to exclude that expert evidence because the Crown had failed to preserve and disclose the expert’s draft reports. On appeal, the alleged breach of the disclosure obligations was narrowed to the Crown’s failure to produce the final version of the expert’s report submitted to a more senior officer for peer review.

[6] The Court of Appeal agreed with the trial judge that had the draft been preserved and disclosed, it would have been relevant evidence. However, notwithstanding that the Crown’s failure to disclose the document violated the appellant’s s. 7 Charter rights, the Court of Appeal was not satisfied that the failure to disclose impaired the right to make full answer and defence (R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 348).

[7] The Crown relies on Natsis in support of its request that Dr. Pallandi’s draft report be produced. In my view, the Crown’s reliance on Natsis is misplaced. As defence counsel asserts, only the accused enjoys s. 7 Charter rights and Stinchcombe imposes disclosure obligations on the Crown, not the defence. The Crown is required to disclose material that it cannot put into evidence itself, but that the defence may use in cross examination; the determination as to whether it is sufficiently useful to put into evidence should be made by the defence, not by the prosecutor (Natsis, at para. 30, citing Stinchcombe, at para. 18 and pp. 345-346).

[8] In my view, the approach followed by the Court of Appeal in Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321, is the correct approach to be applied in this case. Although decided in the context of a medical malpractice action, the decision in Moore is based on principles that also apply in the criminal context: the recognized need for proper preparation of expert witnesses to ensure those witnesses communicate their opinions effectively to the court, and an expert’s duties of objectivity and independence.

[9] The most significant issue raised on appeal in Moore involved the preparation of the written report of one of the appellant’s expert witnesses. As the Court of Appeal observed, the trial judge was troubled by the suggestion that the expert had reviewed his draft report with the appellant’s counsel and directed the expert to produce his draft reports and the notes he made while discussing them with the appellant’s counsel. The Court of Appeal concluded that the trial judge erred in holding that it was unacceptable for counsel to review and discuss the draft expert report; however, this error and others did not affect the outcome of the trial.

[10] In reaching its conclusion, the Court of Appeal observed that the 2010 amendments to Rule 53.03 of the Rules of Civil Procedure codified two basic common law principles:

(i) expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation; and

(ii) an expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within her or his expertise (Moore, at para. 52).

[11] These principles apply equally in the criminal context.

[12] In the Inquiry into Pediatric Forensic Pathology in Ontario, Justice Goudge concluded at p. 47, that proper communication with and preparation of expert witnesses is vital to enable those witnesses to communicate their opinions effectively to the court, and that “counsel, whether Crown or defence, should properly prepare forensic pathologists they intend to call to give evidence” (Toronto: Ontario Ministry of the Attorney General, 2008, cited in Moore, at para. 54).

[13] Litigation privilege attaching to expert reports is qualified, and disclosure may be required in certain situations (Moore, at para. 73). Crown counsel submits that when Dr. Pallandi testified at the hearing, litigation privilege was waived with respect to the draft report. But, as the Court of Appeal observed in Moore, making preparatory discussions and drafts subject to automatic disclosure would be contrary to existing doctrine and would inhibit careful preparation (Moore, at para. 71).

[14] There is a distinction to be drawn between the “foundational information” for the opinion – which must be disclosed on the basis of an implied waiver of privilege over the facts underlying the expert’s opinion that results from calling the expert as a witness – and draft reports (Moore, at para. 75).

[15] Litigation privilege yields where required to do so in order to meet the ends of justice: for example, where the party seeking production of draft reports can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’ duties of independence and objectivity (Moore, at paras. 76-77). But, absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert – and to be clear, no such allegation is made in this case – a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness (Moore, at para. 78).

[16] Crown counsel has referred me to the decision in R. v. Friskie, [2001] 205 Sask. R. 208 (Prov. Ct.). Although the issue in Friskie was the extent to which the Crown was entitled to disclosure of materials provided to a defence expert, it is clear that what the Crown was seeking and what the court ultimately ordered to be disclosed were materials that formed the foundation of the expert’s report. Once an expert witness takes the stand, that witness can no longer be characterized as offering private advice to a party; rather, they are offering an opinion for the assistance of the court and the opposing party must be given access to the foundation of such opinions to test them adequately (R. v. Stone, [1999] 2 S.C.R. 290, at para. 99, as cited in Friskie, at para. 19).

[17] The Crown has been provided with a copy of Dr. Pallandi’s notes. Unlike the “mini” reports at issue in Friskie – which the court concluded at para. 28 were not draft reports but rather were materials that related to the substance of the opinion evidence given – Dr. Pallandi’s draft report is not material that formed the foundation of his report.

[18] R. v. Giroux, [2001] O.J. No. 5495 (S.C.), a decision of this court citing Friskie, does not assist the Crown for two reasons. First, the individual whose preliminary analysis and supporting schedules was sought was not called as an expert and she was not qualified by the court as an expert witness. Second, the request for production was by the defence, not, as in this case, by the Crown.

[19] I was not referred to any cases where a draft expert’s report (as opposed to foundational information for the report itself) was ordered disclosed by the defence to the Crown.

[20] Following the approach in Moore, I conclude that the litigation privilege which protects Dr. Pallandi’s draft report was not automatically waived when Dr. Pallandi testified at the hearing. While litigation privilege is not absolute, I find no basis upon which litigation privilege should yield in this case.

[21] The defence is not required to disclose Dr. Pallandi’s draft report.

Madam Justice Robyn M. Ryan Bell Released: October 17, 2018

COURT FILE NO.: 15-SA5047 DATE: 2018/10/17 ONTARIO SUPERIOR COURT OF JUSTICE PUBLICATION BAN IN EFFECT UNDER S. 486.4 OF THE CRIMINAL CODE OF CANADA B E T W E E N: HER MAJESTY THE QUEEN Applicant – and – C.G. Respondent RULING ON PRODUCTION OF DEFENCE EXPERT’S DRAFT REPORT RYAN BELL J.

Released: October 17, 2018