Court File and Parties
COURT FILE NO.: 18-0552 DATE: 2019 02 27
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – RAJA DOSANJH Accused
COUNSEL: J. Forward for the Crown J. Greenspan and B.J. Greenshields, for the Accused
BEFORE: LEMON J.
RULING RE: EXPERT EVIDENCE
RESTRICTION ON PUBLICATION
A Non-Publication Order is made pursuant to ss. 645(5) and 648(1) of the Criminal Code of Canada that publication of this ruling is prohibited.
The Issue
[1] Mr. Dosanjh is charged with first degree murder and pre-trial motions are underway. As part of its case, the Crown intends to call a variety of expert witnesses.
[2] The Crown and defence have reviewed the curriculum vitae and reports of those witnesses. They have agreed that seven experts are qualified to provide opinion evidence and that such evidence is properly admissible. Despite that consent and agreement, I have reviewed the various curriculum vitae and reports as part of my gate keeping function.
The Authorities
[3] Of recent times, the law governing the admissibility of expert opinion evidence has been clarified and enforced. To be admissible, such evidence must be relevant, necessary for the trier of fact (in this case, a jury), not excluded by any other evidentiary rule and given by a properly qualified expert. Presuming that those conditions are met, the trial judge must also undertake a risk/benefit analysis to determine if the evidence is admissible.
Analysis
[4] At this stage, counsel will be in a better position than I to determine relevance and necessity and to carry out a cost-benefit analysis. I can rely on defence counsel to argue any exclusionary rules and I presume that there are none. That leaves me with reviewing the evidence expected to be given by properly qualified experts.
[5] On that basis, I rule as follows.
DNA Application
[6] Based on the materials filed with respect to the Crown’s DNA expert motion, I am satisfied that Roger Frappier is an expert to provide opinion evidence in the areas of:
- Forensic serology – the identification of bodily fluids;
- DNA analysis, including probabilistic genotyping, and STRmix in particular;
- The evaluation of DNA analysis methods; and,
- The interpretation of bodily fluids, including the deposit, transfer, and persistence of bodily fluids and DNA.
[7] The defence concedes that STRmix is not novel science and that probabilistic genotyping evidence, and STRmix in particular, satisfies the criteria for admission into evidence. Both counsel agree that viva voce evidence from Mr. Frappier was not required to satisfy my gate keeping function. On my review of the evidence provided, I am satisfied that Mr. Frappier is an expert to provide the opinion evidence as set out in Volumes 1, 2 and 3 of the Crown’s DNA application.
Height Analysis/Photogrammetry
[8] The defence agrees that Eugene Liscio is an expert qualified to provide opinion evidence in the area of photogrammetry and image analysis as set out in his report dated July 9, 2018.
[9] Mr. Liscio’s curriculum vitae was filed within the Crown’s application record. It is dated July, 2018.
[10] From my review of that material, I am satisfied that Mr. Liscio is qualified to provide opinion evidence as set out in his report of July 9, 2018.
Gunshot Residue
[11] I have read the report of Elspeth Lindsay, dated July 3, 2016, along with her statement of qualifications dated June 13, 2016.
[12] I am satisfied that she is an expert qualified to provide opinion evidence in the area of gunshot residue analysis as set out in that report.
Firearms Expert
[13] I have been provided with the report of Shane Staniek, dated January 10, 2017, along with his statement of qualifications dated May 16, 2016. I am satisfied that he is qualified to provide opinion evidence in the area of firearms examination as set out in that report.
Phone Analysis
[14] I have reviewed the summary of qualifications of Greg Kaut, along with Officer Kaut’s report.
[15] I am not prepared, as yet, to allow Detective Constable Kaut’s evidence.
[16] Officer Kaut is clearly an expert as submitted and agreed; however, his report has a variety of terms that will need to be explained to the jury. I foresee difficulties for all of us in drawing a line between his evidence as provided to the jury to make his opinion understandable and the report that he has provided. This could be resolved in a number of ways. A voir dire could be held to allow for a more complete evidentiary record. Officer Kaut could be asked to provide a more comprehensive report in language anticipated to be used with the jury. Or, alternatively, it may be that his evidence could be summarized and narrowed to an agreed statement of fact. I leave that to counsel to consider and advise.
Functionality of Phones
[17] I have been provided with the curriculum vitae of Gordon Beatty, dated December 6, 2018, along with his report of December 6, 2018. Mr. Beatty is to provide evidence relating to remote erasing of BlackBerry phones. From his curriculum vitae, however, he appears to have been “a manager of the RCMP Technical Analysis Team” since 2014. Those duties include fiscal management, financial control, human resource management, oversight and management of research and development projects. Reading from his curriculum vitae only, it appears that he has had little hands-on technical responsibility since 2014. Given the fast pace of change in iPhone technology, I am not satisfied, on this curriculum vitae alone, that he has the necessary qualifications to provide the opinion as set out in his report.
[18] Additionally, Mr. Beatty’s report has the same failing as Officer Kaut’s report. I suspect that the Crown will wish to have a more fulsome explanation of his report. I foresee difficulties for all involved to draw the line between his report and his evidence.
[19] Given the defence concession that this evidence is admissible, I do not, by this ruling, find the evidence of Officer Kaut or Mr. Beatty to be inadmissible. Instead, I only provide notice to the parties that I cannot make that determination on the material presently filed.
“Justice Lemon” Lemon J.