Court File and Parties
COURT FILE NO.: CR-05-000241-0000
DATE: 20210122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.T.
Defendant
COUNSEL:
S. Reid and A. Khader, for the Crown
B. Greenspan and M. Biddulph, for the Defendant
HEARD: October 16, 2020
Pursuant to s. 486.4 of the Criminal Code, there is an order that any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way.
REASONS ON ABUSE OF PROCESS MOTION
H. MCARTHUR J.:
[1] After I found J.T. guilty of sexually abusing his three step-daughters, the Crown sought a dangerous offender designation against him. As the first step, the Crown brought an application pursuant to s. 752.2(1) of the Criminal Code, R.S.C., c. C-46, for a court-ordered assessment to be used as evidence in the dangerous offender application. While the defence objected to the assessment itself, they did not take any issue with the proposed psychiatrist, Dr. Nathan Kolla. I concluded that the application should be allowed and ordered the assessment: R. v. J.T., 2018 ONSC 5259.
[2] Dr. Kolla prepared the court-ordered assessment and appeared in court in May 2019 to testify. At that point, for the first time, the defence objected to Dr. Kolla being qualified as an expert, on the basis that he had insufficient experience in risk assessments, particularly in the dangerous offender context. I held that Dr. Kolla could testify, and that any issues with respect to the depth of his experience went to the weight I would give his opinion, rather than its admissibility.
[3] Dr. Kolla testified in examination in-chief. Defence counsel, Jennifer Penman, began her cross-examination. Through her questions, she highlighted potential areas of concern with respect to Dr. Kolla’s opinion.
[4] Unfortunately, insufficient time had been allocated for the dangerous offender hearing. In the middle of Ms. Penman’s cross-examination, J.T.’s matter had to be adjourned to September 2019, when it was anticipated that Ms. Penman would continue her cross-examination.
[5] In August 2019, the Crown had J.T.’s matter brought forward to say that the prosecution no longer wanted to rely on the evidence of Dr. Kolla. The Crown then sought permission to tender the evidence of Dr. Treena Wilkie. She had conducted a file review of J.T.’s matter and was in the process of preparing a report. The defence objected. One of the potential issues raised was the delay that may be caused by the addition of Dr. Wilkie as a witness. I confirmed that Dr. Wilkie would be available to testify on the days in September that had already been set aside.
[6] I ultimately determined that the Crown could call Dr. Wilkie as a witness. I noted that it was a “difficult situation”, which required several different interests to be balanced. I acknowledged that there might be some delay if the defence needed an adjournment after hearing from Dr. Wilkie in-chief, to prepare her cross-examination. But I reasoned that having Dr. Wilkie testify in-chief on the already scheduled dates would assist in reducing delay.
[7] I then explained that the grounds that led me to order a s. 752.1 assessment still existed. That is, I reasoned that I was still satisfied that J.T. had committed serious personal injury offences and that there were reasonable grounds to believe that J.T. might be found to be a dangerous offender, either pursuant to ss. 753(1)(a)(i) or 753(1)(b) of the Criminal Code. I was also still satisfied that there were reasonable grounds to believe that J.T. might be found to be a long-term offender under s. 753.1(1) of the Criminal Code.
[8] I then reflected on the primary purpose of the dangerous offender regime, which is the protection of the public. I noted that the Supreme Court has made clear that it was important for me, as the sentencing judge in a dangerous offender hearing, to have as much information as possible in order to determine if J.T. posed a serious risk to public safety: R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229. Balancing all of the factors, I determined that it was appropriate for the Crown to tender Dr. Wilkie’s evidence.
[9] After I ruled, J.T. abruptly fired Ms. Penman. He then retained current counsel, Brian Greenspan. Mr. Greenspan ultimately brought an abuse of process motion, arguing that the Crown had acted improperly in seeking to abandon its reliance on the court-ordered psychiatrist because he had fared badly in cross-examination.
[10] On November 6, 2020, I provided my “bottom-line” conclusion, as follows:
I am not persuaded that the Crown’s decision to solicit Dr. Wilkie’s opinion was done for an oblique motive or that the Crown has engaged in an abuse of process thereby infringing s. 7 of the Canadian Charter of Rights and Freedoms.
[11] In my view, little else needs to be added to my bottom-line conclusion. The defence has the onus. It falls to the defence to establish its case. And the defence has failed to establish that the Crown acted for an improper purpose. That is, I am not persuaded that the Crown was seeking to obtain an improper litigation advantage in an effort to “get” J.T. Instead, I am satisfied that the Crown was attempting to follow the admonition from the Supreme Court that the sentencing judge should have as much information as possible when determining if a dangerous offender designation is warranted.[^1]
[12] I make three additional points.
[13] First, at the time that Crown counsel asked permission to tender Dr. Wilkie’s evidence, she had not yet provided her opinion. This militates against the defence argument that the Crown was seeking to “dress up the same information in another expert’s clothing.” Instead, this supports that Crown counsel was trying to provide the court with access to as much information as possible as directed in Jones. As it turns out, Dr. Wilkie’s opinion was somewhat more favourable to J.T.
[14] Second, while I agree that the Crown should have recognized the issues with Dr. Kolla’s evidence earlier, the defence shares some responsibility for the timing of events because of the tactic used by the defence in opposing Dr. Kolla as a witness.
[15] When the Crown proposed Dr. Kolla as the expert to conduct the assessment, the defence failed to raise an objection to his appointment. But at the assessment stage, the defence is allowed input into whom is appointed by the court to conduct the s. 752.1 assessment. The defence in the present case clearly knew that, as this very issue was litigated at J.T.’s first dangerous offender hearing: R v. J.A.T, [2007] O.J. No. 1885 (S.C.). If the defence had objected to Dr. Kolla at the time he was to be appointed, and articulated the defence concerns about his level of experience, events would have unfolded differently. I would have considered the complaints of counsel and I would have sought information about whether there were other experts available with more experience.
[16] Instead, defence counsel chose to reserve any objection to Dr. Kolla until the time that the Crown sought to have him qualified as an expert at the dangerous offender hearing. Of course, the analysis with respect to whether an individual is qualified to give an expert opinion is different from the analysis as to whom is best suited to be appointed as a court-ordered psychiatrist. At the stage when the defence finally objected to Dr. Kolla, my task was to evaluate whether he met the test to testify as an expert, not whether he was the appropriate expert to appoint to begin with.
[17] Defence counsel sprung her objection to Dr. Kolla at the last moment, when he was literally in the witness box, rather than raising any concerns before he was appointed. Given that, the Crown’s failure to recognize the potential issues with Dr. Kolla’s evidence earlier is somewhat more understandable.
[18] Third, J.T. did not participate in the assessment conducted by either Dr. Kolla or Dr. Wilkie. Thus, there was no concern that the Crown actions, of seeking and relying on a new expert, might adversely impact on J.T.’s right to silence: R. v. J.V., 2015 ONCJ 766.
[19] Looking at all the circumstances, I am not persuaded that the Crown acted for an oblique motive or otherwise engaged in an abuse of process thereby violating s. 7 of the Charter. The defence application to exclude the opinion of Dr. Wilkie is thus dismissed.
Justice Heather McArthur
Released: January 22, 2021
R. v. J.T., 2021 ONSC 364
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.T.
REASONS on abuse of process motion
Justice Heather McArthur
Released: January 22, 2021
[^1]: For reasons set out in R. v. J.T., 2021 ONSC 366, I determined that the Crown had failed to establish that J.T. should be designated as either a dangerous or a long-term offender.