Information Nos. 12-5141 CITATION: R. v Donnelly 2021, ONSC 4099
ONTARIO SUPERIOR COURT OF JUSTICE
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B E T W E E N:
HER MAJESTY THE QUEEN
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v.
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JOSEPH DONNELLY
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25 R U L I N G
RENDERED REMOTELY BY THE HONOURABLE JUSTICE PHILLIPS
30 on February 11, 2021 at OTTAWA, Ontario
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PUBLICATION BAN PURSUANT TO S 486.4 OF THE
CRIMINAL CODE OF CANADA
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APPEARANCES:
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Mr. J. Lalande, Counsel for the Crown Ms. U. Kancharla, Counsel for J. Donnelly
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( i )
Table of Contents
ONTARIO SUPERIOR COURT OF JUSTICE
Exam. Cr. Re-
WITNESSES In-Chief Exam. Exam.
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E X H I B I T S
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EXHIBIT NUMBER ENTERED ON PAGE
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L E G E N D
(ph) Transcribed as heard
20 (sp) Proper spelling not provided
(sic) Transcribed as said and not in error (....) Indicates inaudible and/or audio
failure/distortion
25 TRANSCRIPTIONIST’S NOTE: No supporting documentation provided
30 PUBLICATION BAN PURSUANT TO S. 486.4 OF THE
CRIMINAL CODE OF CANADA
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Transcript Ordered:
February
11,
2021
Request Received:
February
12,
2021
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Transcript Completed:
February
12,
2021
RULING APPROVED BY PHILLIPS, J.
February
26,
2021
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FEBRUARY 11, 2021
... J. PHILLIPS ON CALL
... J. LALANDE ON CALL
5 ... U. KANCHARLA ON CALL
R U L I N G
PHILLIPS, J. (Orally)
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This is my ruling in respect of the admissibility of witness Jennifer McLean’s evidence.
15 Ms. McLean has been tendered by the Crown to give expert opinion evidence in the field of body fluid identification and interpretation, DNA analysis and interpretation including the deposition, transfer and persistence of body
20 fluids and DNA. Ms. McLean is employed by the Ontario Centre of Forensic Sciences as a forensic scientist in the Biology Department.
I begin by observing that expert opinion
25 evidence is exceptional. The ordinary rule is that witnesses are confined to telling of what they have seen, heard and done. Witnesses are not ordinarily permitted to draw inferences from facts. That is the exclusive pervue of the
30 trier of fact.
In exceptional circumstances however, expert opinion evidence is allowed. Such is the case when such evidence is more probative than prejudicial and the proposed expert meets
5 stringent admissibility requirements. An expert witness is required to provide fair, objective and non-partisan assistance to the Court.
It has long been the concern of the Courts
10 whether experts who have been presented by litigants express unbiased and independent professional opinion. The risk is that persons, instead of considering themselves witnesses, would rather consider themselves as agents of
15 the person or party who has called them. There is further risk that the trier of fact will give expert opinion evidence undue weight which distorts the fact-finding process. This concern is rooted in the notion that expert opinion can
20 be so impressive so as to compel the trier of fact to essentially defer to the witness rather than engage in his or her own thinking process.
The Supreme Court of Canada has adopted a
25 two-stage test for admitting expert opinion. At the first step the party attempting to admit the proposed expert, here the Crown, must demonstrate the threshold requirements of admissibility as set out in the well-known
30 decision of R. v Mohan. Mohan established four factors: logical relevance, necessity, absence of an exclusionary rule and a properly qualified
expert. Evidence that does not meet that threshold should be excluded.
I find that the Crown has satisfied the
5 Mohan test. The proposed evidence is logically relevant in the circumstances of this case. It is important to know any evidence bearing on the source of the biological material found upon the complainant’s body. I appreciate that that is
10 still a live issue in this trial, but it remains the case that the evidence of witness McLean is probative of that subject. I find her evidence to be entirely necessary. Far more than merely useful, it is required. Without her ability to
15 analyze the substances in question the Court cannot discern their provenance.
There is no exclusionary rule that I know of that would prevent her from giving the
20 opinion she proffers. She is speaking not so much about things she has learned through for instance hearsay or other questionable sources but rather observations she has made through scientific analysis of substances delivered to
25 her attention.
I further find that Ms. McLean is a properly qualified expert. She is possessed of a Bachelor of Science with honours in molecular
30 biology from the University of Guelph, and in addition to that extraordinary education, she has extensive training and experience in the
field of forensic biology. I have of course reviewed her curriculum vitae which shows lengthy and persistent training on her part in educating herself and otherwise obtaining
5 experience and knowledge in the field about which she opines. Ms. McLean clearly has an extraordinary level of training experience and education in the field in which she is now testifying. As I say, it is necessary that I
10 hear from her on this very relevant area in the circumstances of this case. The Crown has succeeded in establishing compliance with the four Mohan criteria.
15 Of course the analysis does not end there. The relatively recent case of White-Burgess makes clear that the Court must engage in a second stage of analysis, conducting something of a cost benefit analysis in respect of
20 admitting the evidence. Here the judge is to use discretion to balance the potential risks against the benefits of admitting the evidence.
As I have said earlier, there is danger
25 that a expert opinion witness can take over a fact-finding process. This is especially so when an expert demonstrates bias or at least willingness to go beyond their area of expertise and offer opinion that treads in the domain of
30 the trier of fact. This was the scenario addressed by my colleague Justice Molloy in the decision of R. v France provided to me on this
application by Defence counsel. In that instance the expert gave opinion that the trial judge found to have simply gone too far.
Furthermore, he was found to have overstepped
5 when offering essentially opinions about the key questions before the Court.
I have no such concerns here in respect of witness McLean. I found that she was entirely
10 reasonable and fair when giving her evidence both in examination in-Chief and cross- examination. She readily agreed with every hypothetical put to her by Defence counsel in the sense of it being possible for substances to
15 be transferred in a variety of imaginative ways. She did not ever in my estimation express opinion as to how it would have been that the substances ended up where they were. That issue is left entirely to me, the trier of fact.
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I agree that witness McLean took it upon herself to conduct further tests in respect of the matter. Far from being concerned about that, I find it reassuring. It seems to me that
25 Ms. McLean has always been motivated toward correctness. She is and has been endeavouring at all times to merely “get it right”. I would expect any expert witness who believes that errors have been made or that analysis has been
30 incomplete to endeavour to correct those errors or complete any analysis. That is all that Ms. McLean has done in my estimation in being
something of a self-starter, independently motivated toward modifying or correcting any opinion or activity she has engaged in in this case as a CFS analyst.
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I find that Ms. McLean is indeed an independent and impartial witness. I am aware of course that she has been retained in effect by the Crown, that she has interacted in effect
10 as something of a Crown witness. That fact however does not infringe upon her ability to give independent and impartial evidence. I say that with confidence, given that I have seen her now testify, particularly in cross-examination.
15 It is clear to me that she is perfectly able to agree with propositions advanced to her from both sides of the counsel table and that the ultimate fact-finding is left by her to me.
20 Burgess instructs that I am not supposed to simply leave any concerns about any expert opinion witness to weight. If indeed there are concerns about the witness’s partiality they are not a properly qualified expert as defined by
25 Mohan. I find here however that the issue of partiality, while arguable and available (ph), is not caught by the Mohan test and is not what is contemplated in Burgess. I will though entertain such submissions when I deal with the
30 weight to be assigned to this witness. But this is a case where such concerns do not bear on admissibility.
In sum I have found that the Crown has discharged its persuasive burden and that Ms. McLean’s evidence shall be received by this Court as expert opinion evidence in the area
5 described. It is necessary that I hear from her. She is an impartial witness who understands her obligation to the Court. I detected no bias or partiality on her part and while I, as I say, will be open-minded about
10 that question when I determine issues of weight, I do not find that issue to limit the admissibility of the evidence as the concept is described in White-Burgess. This is not a situation where the witness overstepped to the
15 degree that the forensic pathologist did in France. I distinguish that case from the facts before me.
The test for the admissibility of expert
20 opinion evidence has been met. Ms. McLean’s evidence as an expert will be received by this Court.
... Submissions by counsel
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THE COURT: All right. I’m going to think about it over the morning break which we’ll take now. We’ll come back in 15.
THE REGISTRAR: Court is in recess for 15
30 minutes.
R E C E S S (11:20 a.m.)
U P O N R E S U M I N G: (11:39 a.m.)
THE REGISTRAR: Court is now resumed.
THE COURT: This is my ruling in respect of an application brought by the accused for either
5 the exclusion of evidence or a mistrial arising out of the fact that the Crown has come to be in possession of further Forensic Science evidence obtained through testing done during the time this trial has been adjourned. I speak in
10 particular about a report from witness Jennifer McLean dated June 23rd, 2020 which analyzed items that had not been analyzed to that point.
Defence counsel argues that the
15 presentation of this evidence runs contrary to the principles of fundamental justice as enshrined by s. 7 of the Charter, as that notion is independently understood and as that notion runs in conjunction with a related Charter right
20 to receive disclosure so as to make full answer and defence. Defence counsel argues that there will be significant prejudice suffered by the accused should this evidence be admitted because of two reasons. First, Mr. Donnelly made his
25 election for a judge alone trial on the basis of the case he understood he had to meet prior to being arraigned before me. Second, Mr. Donnelly asserts that the manner in which he has been responding to the Crown’s case in the form of
30 tactical decisions made and cross-examinations done of witnesses called thus far, has been dictated by the extent of the disclosure he was
in possession of on arraignment.
I agree with the accused applicant in this application, although with a very important
5 qualification. It seems to me in the context of the case thus far the proposed evidence is more prejudicial than probative. As such, I see the infringement upon the right to make full answer and defence as quite significant. The probative
10 value is essentially more evidence that says what is already partly known, that being that Mr. Donnelly deposited his biological material on or very near the genital area of the complainant. The inference available is that he
15 did so in the context of engaging in sexual intercourse with her in an unprotected way.
The fresh evidence adds to that by identifying more biological material consistent
20 with that theory. Because it is somewhat redundant and repetitive, its probative value is lessened. I agree that there is prejudicial effect in the extent that decisions made tactically, and in particular in respect of
25 cross-examination, could be said to have been affected by what was known to be available for presentation by the Crown at the time of arraignment or commencement of this trial.
30 I pause to note here that there is no evidence before me with respect to any effect on Mr. Donnelly’s interests vis-a-vis his election.
I don’t know what his thoughts and position are or were on that subject. And I observe that while he does of course have a Charter right to a judge and jury trial in the circumstances,
5 jury trials are simply unavailable presently due to the COVID pandemic. In any event, I am not overly persuaded or affected by the election component of this application. What drives me is the legitimate complaint that the cross-
10 examination of the witnesses called thus far by the Crown would have been affected by the late disclosure.
A mistrial, the most drastic of remedies,
15 is not called for here. In my view the risk of prejudice to the accused can be properly dealt with by exclusion of the evidence contemplated. I give therefore Mr. Donnelly the relief he seeks. The Crown may not tender the fresh
20 evidence as part of the case against him.
There is a very important qualification to this that I wish to make crystal clear, and that is this: all of what I have said could be
25 revisited and could possibly change should the circumstances change during this trial, to wit, should the Defence call evidence, including testimony of the accused, that bears on my calculus relating to probative value versus
30 prejudicial effect. In other words, I have agreed with the accused that insofar as whether the Crown can discharge its burden, he is done a
hard turn by the Crown marshalling further evidence during an adjournment after the trial got underway. But that could very well change if the Defence calls evidence.
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The Crown bears the onus and burden of proof. The accused need not prove anything. If he seeks to prove something however, he may well find that the Crown succeeds on an application
10 to call reply evidence to the extent that the evidence he proffered runs inconsistent to other evidence. All of which to say when I ignore the idea that Mr. Donnelly is going to testify in some way which information is something I am not
15 privy to not having engaged in any prior litigation in this case like counsel have, and I focus solely on the fact that the Crown is presenting its case and Mr. Donnelly is responding to that case and essentially trying
20 to respond to the Crown’s discharge of its burden of proof I decide that it would be fundamentally unjust for him to have the ground shift beneath him now and I accordingly accede to the Defence application and exclude the
25 evidence. It is not available for the Crown to present as part of its case. But I wish to be clear that if Mr. Donnelly testifies or calls evidence I will be open-minded with respect to any application that the right of reply ought to
30 be engaged such that the fresh evidence in question becomes more probative than prejudicial and ought in those circumstances be admitted.
Counsel, that is my ruling. The Defence succeeds but I wish everyone to know that I am deciding this in the context of the Crown’s presentation of its case and the Crown’s
5 discharge of its burden. Should the evidence in this trial change my analysis could change. Of course, I have not decided as much. I am just telling you that this application should be considered as being decided at the moment it is
10 now brought and has no permanent future application, or at least is not to be understood as etched in stone for all time.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
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I, J. Walsh, certify that this document is a true and accurate transcription to the best of my skill and ability, quality of the audio recording and notes provided, of R. v Joseph
10 Donnelly in the Ontario Superior Court of Justice held at Ottawa, Ontario, taken from Recording 0411_CR31_20210211_091041_10, as recorded and certified by J. Hunt in Form 1.
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J. Walsh, C.C.R.
Certified Court Reporter/Transcriptionist ACT No. 1184021333
20
Date
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RULING APPROVED BY PHILLIPS, J. FEBRUARY 26, 2021
30 THIS CERTIFICATION DOES NOT APPLY TO THE RULING
WHICH WAS JUDICIALLY EDITED