Court File and Parties

COURT FILE NO.: CR-18-400000612-0000 DATE: 20201120 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant

– and –

ALEK MINASSIAN Defendant/Respondent

Counsel: J. Callaghan, J. Rinaldi, and C. Valarezo, for the Crown/Applicant B. Bytensky and B. Smith, for the Defendant/Respondent

HEARD: November 12, 2020

Reasons for Decision

molloy j.

(Crown Application for Disclosure of Experts’ Recordings)

A. INTRODUCTION

[1] Alek Minassian is charged with 10 counts of first-degree murder and 16 counts of attempted murder, all arising from an attack on April 23, 2018 in which he drove a rented van along the sidewalk of Yonge Street, Toronto, mowing down pedestrians in his path. His attack was planned and deliberate. The sole issue to be determined at trial will be his state of mind at the time of the attack.

[2] Mr. Minassian’s trial commenced before me, sitting without a jury, on November 10, 2020. He pleaded not guilty on all counts, and advised that he was not criminally responsible for these charges, relying on s. 16 of the Criminal Code. The Crown filed (as Exhibit 1 at trial) a detailed Agreed Statement of Fact, in which Mr. Minassian conceded that he planned the attacks in advance and deliberately drove into these 26 pedestrians with the intention of killing them. The Crown’s case consisted entirely of various Agreed Statements of Fact and was completed within 1 ½ days.

[3] Long before the trial, all counsel knew that the facts would not be disputed and that the result at trial would hinge entirely on the testimony of various medical experts as to Mr. Minassian’s mental state and whether the requirements of s. 16 of the Criminal Code are met. Mr. Minassian was examined by numerous experts, for both the defence and Crown. Those experts, in addition to interviewing Mr. Minassian, also interviewed members of his immediate family and reviewed extensive background material.

[4] Well in advance of trial, the parties exchanged expert reports and copies of the materials those experts considered in coming to their opinions, as well as their notes of the interviews they conducted. One of the reports provided by the defence to the Crown was authored by three experts from the Yale University Division of Law and Psychiatry: Dr. Alexander Westphal, a psychiatrist; Dr. Viviana Alvarez-Toro, a forensic psychiatry fellow; and Dr. Rachel Loftin, a clinical psychologist (hereafter referred to collectively as “the Yale Group”). The defence disclosed that report to the Crown in August 2020. In September, the defence disclosed handwritten and typed notes made by the Yale Group during their interviews of Mr. Minassian and his family. Their report discloses that they met with Mr. Minassian for 15 hours and with his family members for 7.75 hours. In late October 2020, the Crown learned for the first time that the Yale Group had also video‑recorded some of the interviews of Mr. Minassian and audio‑recorded the interviews with his parents. The Crown immediately requested disclosure of the recordings. After a series of discussions and correspondence, counsel advised on November 8, 2020 (with the trial to start on November 10), that the defence would not be voluntarily disclosing the recordings and that a motion would be required.

[5] I heard argument on the Crown’s motion in court on November 12, 2020 and ruled as follows:

(a) the recordings are protected by litigation privilege and the defence is not obliged to disclose them if the experts who conducted the interviews do not testify;

(b) although the defence has indicated their intention to call both Dr. Westphal and Dr. Loftin as witnesses, they have not undertaken to do so;

(c) if either Dr. Loftin or Dr. Westphal is called to testify, the recordings they made of their interviews must be disclosed;

(d) if that disclosure is not made until the last moment, the Crown will be afforded a reasonable time to review the recordings, and to have their experts review the recordings, before being required to cross‑examine the witness;

(e) the Crown is not restricted in its use of the recordings once disclosed, and in particular is not restricted in using them only to cross‑examine the experts who prepared them;

(f) the testimony of Mr. Minassian’s father (the first witness for the defence) will proceed as scheduled on November 16, and the Crown will be required to cross‑examine without having seen or heard the recordings;

(g) if the recording of the interview with Mr. Minassian Sr. is provided to him in advance of his testimony for the purpose of allowing him to refresh his memory, that recording must be immediately disclosed to the Crown;

(h) if the recordings are ultimately disclosed to the Crown and evidence has already been taken from a witness the Crown would reasonably seek to cross‑examine based on the recordings, that witness may be recalled for further cross‑examination.

[6] I advised at the time of this ruling that written reasons would follow. Those reasons are set out below.

B. LITIGATION PRIVILEGE

General Principle

[7] The defence in a criminal trial is free to retain experts and conduct investigations without any general duty to disclose the fruits of such inquiries to the Crown. An expert opinion obtained by the defence is not subject to disclosure, nor are any of the materials relied upon by the expert in preparing that opinion.

Waiver when expert called to testify

[8] Notwithstanding the general principles of litigation privilege, where the defence intends to call an expert witness at trial, the Criminal Code requires that notice be given to the Crown 30 days before trial. Further, if that witness is called to testify, the defence must provide either a copy of the expert’s report (if there is one) or a summary of his or her anticipated evidence not later than the close of the prosecution case.[^1]

[9] These Criminal Code provisions are only minimum requirements. In addition, it is well accepted in the case law (and not in dispute in this case) that when an expert testifies at trial, disclosure must be made of any material relied upon by the expert in coming to his or her opinion. As stated by the Supreme Court of Canada in R. v. Stone:

. . . The act of calling of Dr. Janke would certainly constitute waiver of any privilege attached to his report. As noted by McEachern C.J., once a witness takes the stand, he/she can no longer be characterized as offering private advice to a party. They are offering an opinion for the assistance of the court. As such, the opposing party must be given access to the foundation of such opinions to test them adequately. Given the fact that the report would have to have been disclosed after Dr. Janke’s direct examination, the prior disclosure of the report cannot be said to have had any material impact on the outcome of the trial. Absent the earlier disclosure, the Crown would have been entitled to stand the appellant down before completing its cross‑examination of him, and to recall him once they had been given an opportunity to consider the contents of the report.[^2]

[10] If the expert is relying on information obtained from the accused in coming to his opinion, and has taken notes of those interviews, those notes must be disclosed if the expert testifies.[^3] The defence in this case has already produced the handwritten and typed notes of the interviews done by Dr. Westphall and his co-authors.

Waiver when material used by witness to refresh memory

[11] Another common manner in which litigation privilege is waived is where a witness (whether expert or not) uses material to which the privilege might otherwise attach in order to refresh his or her memory.

[12] In R. v. Sachkiw,[^4] the accused was charged with refusing to provide a breath sample. The next day he made notes of his interactions with the police and everything he could recall that had been said. He did this before consulting legal counsel, but the notes were clearly for the purpose of preserving his memory of the events, in anticipation of the future litigation. As such, they were found to be protected by litigation privilege. However, prior to his trial, the accused reviewed his notes for the purpose of refreshing his memory as to the specifics of the events. After a careful and scholarly analysis, Dawson J. ruled that this constituted a waiver of the privilege and the notes must now be disclosed. I agree with and adopt that analysis.

C. ANALYSIS

The Recordings Must be Disclosed

[13] Mr. Bytensky, for the defence, submitted that Dr. Westphal did not review the recordings of the interviews in the course of preparing his report and that litigation privilege was therefore not waived. I disagree. At this stage, with respect to the Yale Group, the issue is not whether they refreshed their memories by referring to the report. Rather, the recordings must be disclosed as they constitute the foundation of the report itself. Likewise, it does not matter that the recordings were made primarily for the use of counsel, and only secondarily for the assistance of the Yale Group assessors. The point is that the assessors relied on information received from Mr. Minassian and his family, and that information, indisputably, is contained in the recordings.

[14] Throughout the report, there is extensive reliance on the information received from Mr. Minassian and his family during their interviews by the various experts. It is the information itself that is the foundation of the report. The recordings constitute a near perfect record of that information. In addition, the report also relies at some points on Mr. Minassian’s demeanour and manner of speaking. Again, the recordings would be a near perfect record of that. Further, access to the recordings would enable the Crown and the Crown’s experts to consider whether the conclusions drawn by the Yale Group were reasonable, something that would be difficult to replicate based only on the notes of the interviewer as to his or her subjective observations of Mr. Minassian’s demeanour.

[15] Mr. Bytensky argued that the Crown was not entitled to the “best” version of the information received by the Yale Group from Mr. Minassian and his family, but merely enough to allow them to “fairly assess” the foundation of the report. He equated this to the principle that an accused is entitled to a “fair” trial, not a “perfect” trial. Again, I disagree. The “best evidence” rule has nothing to do with the disclosure obligation. The Crown is entitled to the foundation of the report, which is the information received by the experts from their interviews. Where there is a complete version of that, that must be disclosed, not merely somebody’s summary of it.

[16] It is no answer for the defence to state, as they have done, that the production of the notes made by the Yale Group satisfies the disclosure obligation. The defence is not permitted to pick and choose what they will and will not produce from things that were relied upon by the experts. If there is a complete record of what was said to the experts, there can be no justification for disclosing only the incomplete, and partially subjective, notes of what is in the complete record.

[17] In R. v. Stone, defence counsel in his opening address to the jury referred to anticipated evidence from a defence expert that the accused had been in a dissociative state at the time he killed his wife and acting unconsciously as an automaton. Up to that point the defence had not provided that report to the Crown. The trial judge ruled that by referring to part of the report, defence counsel had waived litigation privilege and the report must immediately be disclosed to the Crown. The Supreme Court of Canada upheld that ruling, stating (at para. 98):

By disclosing what he wanted from the report in favour of the accused, defence counsel could not then conceal the balance of the report whose contents might contradict or put in context what had been disclosed. It is true that Dr. Janke’s report included not only his diagnosis, but a recital of the facts as provided by the appellant and which formed the basis of his expert opinion. It was through disclosure of the report, for example, that the Crown learned that the accused, contrary to his initial trial testimony, appeared to have some recall of the beginning of the fatal assault by way of a dream. The contents of the report, including the statements attributed to the appellant, were of course known to defence counsel at the time he chose to make the disclosure to the jury. It was not open to the appellant to pick and choose the portions of an expert report to be put before the trier of fact. Accordingly, the trial judge acted appropriately by ordering the production of Dr. Janke’s report at the conclusion of the defence opening address.[^5]

[emphasis added]

[18] I am not persuaded by the defence argument, by way of analogy, pointing to other situations in which notes of an interview might be prepared by someone other than the expert conducting the interview. For example, Mr. Bytensky posited a situation where a lawyer was present at the time of the expert meeting with the accused and whether the lawyer’s notes would then be subject to disclosure, or where the lawyer was present and it was the lawyer who made the tape recording rather than the doctor. Those are not the facts before me, and I do not intend to opine on them. In this case, the doctors made recordings of the interviews, and they also made notes. If those doctors testify, the recordings must be disclosed. If the Crown were to be entitled to only one or the other (which I am not at all suggesting), then the first obligation would be to disclose the recordings rather than the notes, as the former will be by definition more complete.

The Timing of Disclosure

[19] Mr. Bytensky previously stated his intention to call Dr. Westphal and Dr. Loftin as expert witnesses at trial. He did not undertake to do so. He is not obliged to do so. Either he or his client may choose not to call those witnesses. Mr. Bytensky contends that unless and until the witness is called, litigation privilege is not waived. I agree with that position, as a proposition of law. It is not convenient for the orderly conduct of the trial, but that does not change the fact that litigation privilege is only waived upon the prospective witness becoming an actual witness.[^6] It is to be hoped that where counsel know that a witness will be called, full disclosure will be made in advance. This would avoid the need for adjournments in the middle of a trial so that opposing counsel and their experts can review new disclosure. However, this cannot always be accomplished.

[20] In this case, the moment Dr. Westphal or any member of the Yale Group is called to testify, the audio and video recordings must be disclosed to opposing counsel. If the Crown requires time to review the tapes before cross‑examining this witness, and if the Crown wishes the crown experts to review them before cross‑examination begins, I will be amenable to a reasonable adjournment for that purpose.

Restrictions on Use of the Recordings

[21] The defence submits that the Crown’s use of the recordings should be restricted to cross‑examination of any member of the Yale Group who testifies. That is not a tenable position. Once litigation privilege has been waived and the Crown has the recordings, the Crown is at liberty to use them for whatever purposes are appropriate in the conduct of the trial. Clearly, the Crown is not at liberty to simply divulge the tapes to anyone other than the police or its own witnesses. Further, how the recording are used at trial will be subject to my discretion. However, it would not be proper to restrict the Crown from using the recordings for any purpose appropriately connected to this trial. For example, if Mr. Minassian chose to testify in this case, the Crown would be entitled to cross‑examine him on any inconsistencies between his evidence at trial and what he said in the Yale Group interviews.

[22] I previously ruled that if Mr. Minassian Sr. reviewed the audiotape of his interviews before testifying, that also would constitute waiver. His testimony has now been completed. However, if the Crown discovers from its review of his previous statements to the Yale Group that there are material inconsistencies between his evidence at trial and what he said on previous occasions, I will permit the Crown to recall that witness for the purpose of further cross‑examination.

[23] Likewise, if there are material aspects of the recordings that the Crown would reasonably have put to any defence expert witnesses who has already testified, that witness may be subject to recall for further cross-examination.

[24] Further, the recordings may be used by the Crown’s expert witnesses to either buttress their own opinions, or to challenge any opinions given by the defence witnesses. Say, for example, a defence witness gave the opinion that Mr. Minassian had a particular symptom based on stated information received from Mr. Minassian supporting such a conclusion. If the recordings in fact showed that Mr. Minassian never said such a thing, or that he said it once and contradicted that 10 other times, surely this is something that the Crown’s witnesses are entitled to take into account in supporting an opinion different from that reached by the defence expert, or in challenging the defence conclusion.

The defence also sought a ruling that the recordings would not be marked as exhibits at trial. I cannot give such an assurance. In most cases, I would think that cross‑examination could easily be done by using transcripts of the recordings, and I would certainly be open to requiring that when possible. However, I can think of situations in which a transcript would not suffice, and I can posit situations where portions of the interviews would have to be shown and therefore should be marked as an exhibit to preserve the record for appeal. I would expect those situations to be rare, but I cannot say at this point that it will never happen. These issues will have to be dealt with as they arise.

Released: November 20, 2020

COURT FILE NO.: CR-18-400000612-0000 DATE: 20201120

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Applicant – and – ALEK MINASSIAN Defendant/Respondent

REASONS FOR JUDGMENT molloy j.

Released: November 20, 2020

[^1]: Criminal Code, s. 657.3(3). [^2]: R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290 at para. 99. [^3]: Ibid; See also R. v. Medwid, 2008 O.J. No. 4717 (S.C.J.) at paras. 12, 15, and 17. [^4]: R. v. Sachkiw, 2014 ONCJ 287; see also R. v. Dunn, 2012 ONSC 2748 at paras. 86-91. [^5]: R. v. Stone, supra Note 2, at para. 98. [^6]: On this issue, I raise without resolving whether production of the report and underlying notes might constitute waiver even where the witness is not ultimately called to testify. That issue was not argued and I should not be taken to have ruled on it.