DATE: 2020 04 22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Tina Kim, for the Crown

• and -

RICHARD WALKER John Fennell, for the Defence

HEARD: March 9, 2020

REASONS FOR RULING

Fowler Byrne J.

[1] Mr. Walker brought a motion to have his witness, Mr. David Pellerin, qualified to give expert evidence in support of his defence to the charges of possessing, accessing and making available child pornography, contrary to s. 163.1 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The motion was dismissed with reasons to follow. These are those reasons.

Background

[3] This issue arose near the end of a trial consisting of 11 full or partial days of evidence. The Crown finished its case on day 7. This motion was brought on day 10. Prior to this motion being brought, the defence had already called two witnesses, one of which was Mr. Walker himself.

[4] At the commencement of this trial, the Court was advised that neither party had prepared expert reports or provided the other party with notice of their intention to lead expert evidence under s. 657.3(3) of the Criminal Code. The defence maintained throughout, and up to this motion, that he did not intend to call expert evidence as no expert evidence was being led by the Crown.

Crown Witnesses

[5] In support of its case, the Crown called one lay witness and three of the officers involved in the investigation that led to Mr. Walker being charged. The evidence of former Officer MacDonald of the Internet Child Exploitation Unit (“ICE Unit”) of the Peel Regional Police Service focused on his online investigation that directed him to Mr. Walker and his subsequent online investigation that led to him obtaining a production order and then a search warrant of Mr. Walker’s home. The evidence of Officer Sikora of the Digital Forensic Services Unit (“DFS Unit”) of the Peel Regional Police Services focused on her role in the execution of the search warrant and her forensic analysis of the computer equipment seized from Mr. Walker’s home.

[6] The parties were unable to reach an agreement as to the permissible scope of the evidence of former Officer MacDonald and Officer Sikora. The Crown wanted the officers to give factual, participatory evidence of their investigations, the steps they took and the results of their investigations. In the alternative, the Crown asked that they be qualified as experts. The defence was opposed to either of these witnesses giving expert opinion evidence. Former Officer MacDonald had not provided a report, and as stated earlier, no notice under s. 657.3(3) of the Criminal Code had been given for either witness.

[7] A voir dire was conducted prior to either witness testifying. After each of the voir dires, I ruled that the officers could give evidence of their personal experience in the investigation and the findings and steps that they took but that they could not provide any opinion related to these findings. The investigative report prepared by Officer Sikora, which had been provided to the defence, was found to be testimonial in nature, and accordingly, it was not permitted to be filed as an exhibit in the trial. I ordered that it be redacted so that it became nothing more than a series of screen shots taken by the officer in the course of her technical forensic investigation in order to explain to the jury what she did and the forensic results she obtained. Given the lack of notice by the Crown and the late nature of the request, neither officer was recognized as an expert entitled to give expert opinion evidence.

Defence Witness

[8] Mr. David Pellerin was a former employee of Rogers, who came to know Mr. Walker in the course of their mutual employment with Rogers. Mr. Pellerin was based in Montreal and Mr. Walker was based out of the Greater Toronto Area. They had worked on one child pornography investigation together in the course of their employment in 2010, albeit remotely, and had also worked together, again remotely, on another large investigation not involving child pornography. Since Mr. Pellerin left Rogers’ employment, he has been self-employed in the area of computers, including computer security.

[9] It was anticipated that the Crown would object to some of the subject matter of Mr. Pellerin’s evidence. As was done with two of the police investigators who were witnesses for the Crown, on days 9 and 10 of the trial, a voir dire was conducted in order to ascertain the appropriate parameters of Mr. Pellerin’s evidence.

[10] Mr. Pellerin was advanced as a fact witness. At the commencement of the voir dire, no request was made by the defence that if Mr. Pellerin was not able to give evidence on the facts they sought to have admitted, that they would seek to have him qualified as an expert witness. Mr. Pellerin’s CV was made an exhibit on the voir dire.

[11] In the course of the voir dire, Mr. Pellerin advised that he had a longer, 20-page CV that showed the courses he has taken over the years, but it was not presented as an exhibit. He was questioned on his experience, but not to any great extent as his expertise was not an issue. He was not asked any questions regarding, nor did he give any evidence of, whether he could be impartial, independent and unbiased. It was simply not addressed. He was not asked if he has ever been qualified as an expert, and if so, where, when and how many times he had been so qualified.

[12] In addition to evidence regarding his personal interaction with Mr. Walker, Mr. Pellerin also gave evidence on the following:

a) Computer viruses he discovered for his current clients in his current business; various viruses he encountered in general while working at Rogers; generally how viruses work and damage they could cause; and a general explanation of the viruses found on two loose hard drives seized from Mr. Walker’s home, on which two images of child pornography were located. b) His opinion on the proper steps to be taken in a forensic investigation; his analysis of an earlier forensic report of Officer Sikora and questions left unanswered by that report. The report was not admitted into evidence at the trial.

[13] With respect to the virus scan report that was made an exhibit at trial, Mr. Pellerin freely admitted that he was not the individual who conducted the scan, he did not see the scan take place, he never had access to a mirrored copy of the hard drives scanned for viruses (although they were in the possession of the defence), and stated that his knowledge of the effect of the viruses found was only of a general nature and depended on numerous factors, of which he had no knowledge.

[14] With respect to his analysis of Officer’s Sikora’s investigative report, Mr. Pellerin indicated that he did have access to some notes that were linked to the report but he was not given all the source information related to the report. It is not disputed that the defence received all the source information for the report through the disclosure process, but did not provide it to Mr. Pellerin.

[15] At no time during the voir dire did defence counsel ask that Mr. Pellerin be considered an expert in any particular field or subfield of computer forensics or computer viruses. No area of his expertise was carved out.

[16] After the voir dire was concluded, I ruled that Mr. Pellerin, as a fact witness, could offer no expert opinion evidence at the trial. More particularly, I ruled that he could provide no opinion evidence on Officer Sikora’s report or the virus scan. I also ruled that Mr. Pellerin was not permitted to provide any expert opinion on his general knowledge of viruses and computer forensics. He was permitted to give evidence only on the facts in which he was personally involved.

[17] Upon orally delivering this ruling, the defence immediately moved to qualify Mr. Pellerin as an expert. No written materials were filed. No notice was given under s. 657.3(3) of the Criminal Code. No report had been filed. The defence submitted that if Mr. Pellerin was so qualified, he would give the same evidence, both factual and opinion evidence, that he gave in the voir dire. Again, his area of expertise was not specified, nor carved out. In response, the Crown submitted that it would be extremely prejudiced by this late request. The defence has known since at least the preliminary inquiry that the Crown was not going to lead any expert opinion evidence. Crown counsel asked defence counsel approximately two weeks prior if he intended to call expert opinion evidence and she was told he did not. The Crown maintained that the defence was obligated to provide notice to the Crown and to provide a summary or a report of the anticipated evidence before the close of the Crown’s case, which he did not. The case for the defence had already started and Mr. Walker had already testified. Crown counsel also indicated that her cross-examination on the voir dire would have been different had she known that Mr. Pellerin’s qualification as an expert witness was at issue.

Analysis

[18] The issue to be determined is whether Mr. Pellerin should be permitted to give expert opinion evidence. If he is, then I should determine whether the process set out in the Criminal Code has been followed, and if not, what steps need to be taken.

[19] After reviewing the evidence given by Mr. Pellerin in the voir dire, I have concluded that Mr. Pellerin should not be qualified to give expert opinion evidence. Accordingly, the failure of the defence to comply with its requirements under s. 657.3 of the Code is of no consequence.

[20] The law on whether expert evidence should be permitted has been well canvassed: see R. v. Mohan, [1994] 2 S.C.R. 9; White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330; R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40. In order to determine whether an expert should be permitted to give evidence, the court must conduct a threshold analysis, followed by a further review as a “gatekeeper” of the evidence that is to be presented to the trier of fact, which in this case was a jury.

Threshold Analysis

Relevance

[21] For the evidence to meet the necessity requirement, it must provide information which is likely to be outside the experience and knowledge of a judge or jury. The evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature: see Mohan, at para. 26.

[22] It is possible that Mr. Pellerin’s evidence is relevant to the issues at trial in general, but the ability of his evidence to prove or disprove a fact at issue may be limited given the general nature of his opinion and his lack of access to key documentation or evidence.

Necessity

[23] There was necessity for the evidence proffered by Mr. Pellerin. As there was evidence of a virus being present on two loose hard drives, it would be of benefit to have expert opinion evidence on how that particular virus affected Mr. Walker’s computer at the time at issue. There was also necessity in having an expert opinion on the forensic evidence of Officer Sikora, including the analysis performed, the terminology used and what the results suggest.

[24] Unfortunately, in both cases, Mr. Pellerin did not have enough information to provide any reliable information on the effect of the viruses, nor did he have enough background and supporting information to provide an opinion with respect to the forensic analysis, save and except to say there should have been more investigation.

Impartiality

[25] On the evidence before me, it is not clear that Mr. Pellerin is impartial, independent and unbiased: White Burgess, at para. 32. No evidence was led on this issue in the voir dire. This was of importance given his prior working relationship with Mr. Walker.

[26] After considering all these factors, I found that Mr. Pellerin did not meet the threshold necessary to be qualified as an expert. The relevance and necessity was tenuous, and there was simply no evidence of Mr. Pellerin’s objectivity, independence or lack of bias.

Gatekeeper Analysis

[27] Even if the threshold requirements were met, in exercising my role as a gatekeeper of evidence, I would not permit Mr. Pellerin to give expert opinion evidence. In determining that the probative value of his evidence was outweighed by the potential risks of its admission, I rely on the following factors:

a) Mr. Pellerin could only give evidence of the effect of the viruses in a general manner and could give no specific evidence about the viruses found on Mr. Walker’s computer; he indicated that the impact of the viruses on Mr. Walker’s computer was dependent on a number of factors, about which he had no information; b) Viruses were found on two loose hard drives, on which only two images of child pornography were found; there were admittedly no viruses found on the devices that contained the majority of the child pornography, namely 43 videos and 17 further images; c) Mr. Pellerin did not perform the virus scan; he did not watch the virus scan; he has no knowledge of how the virus scan was done, what parameters were set or the exact nature of the scan; he could offer no opinion as to the veracity or reliability of the scan; d) Although the mirrored copies of the scanned hard drives were in the possession of the defence, they were not provided to Mr. Pellerin so that he could conduct his own scan; e) Mr. Pellerin gave evidence with respect to an earlier version of Officer’s Sikora’s forensic report, which was not an exhibit at trial and thus not something the jury would even see; f) Mr. Pellerin was not provided with all the source documentation for the report of Officer Sikora and the collection of screen shots that became an exhibit at trial, although in the possession of the defence; g) Although Mr. Pellerin claims he had a more extensive CV to show his qualifications, it was not presented at the voir dire; h) No questions were asked of Mr. Pellerin regarding his impartiality, objectivity or whether he was biased; this is important given that Mr. Pellerin and Mr. Walker used to work together and Mr. Pellerin considered Mr. Walker the “expert” or “go to” person when child pornography was found on the computer of a Rogers’ employee and a forensic analysis was required; and i) No effort was made to carve out a particular area of expertise upon which Mr. Pellerin would opine, except that Mr. Pellerin would give evidence similar to what was given in the voir dire.

[28] In general, Mr. Pellerin’s proffered opinion evidence was based on incomplete and selective evidence, which, if admitted, would only serve to confuse or prolong the trial. Allowing Mr. Pellerin to provide an opinion of Officer’s Sikora’s investigation would confuse the jury as his opinion was based on a report that was not entered into evidence. Even if he gave an opinion on the screen shots that became an exhibit, he did not have the source documents that formed the basis of that opinion. His record was incomplete.

[29] Furthermore, Mr. Walker admitted no viruses were found on the hard drive that contained the vast majority of the child pornography found. Accordingly, even if Mr. Pellerin’s expert opinion evidence was allowed on the issue of viruses, it would have absolutely no impact on Mr. Walker’s culpability on the remaining 43 videos and 17 images of child pornography.

[30] In conclusion, the probative value of Mr. Pellerin’s evidence was outweighed by the risk that his evidence would unduly delay the trial, confuse the jury and lead the jury down a trail of inquiry that would not assist in their task to determine if Mr. Walker accessed, possessed and make available child pornography.

[31] Accordingly, the accused’s motion to have Mr. Pellerin qualified to give expert evidence was denied.

[32] Given my ruling that Mr. Pellerin not be permitted to give expert opinion evidence, it is not necessary to determine the impact of the defence’s failure to follow the procedure set out in s. 657.3 of the Criminal Code.

Fowler Byrne J. Released: April 22, 2020