His Majesty the King v. Caleb Nettleton
COURT FILE NO.: CR-21-70000002
DATE: 2023-06-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
– and –
Caleb Nettleton
COUNSEL:
Jennifer Stanton, for the Crown
Self-Represented
Dean Embry, Amicus Curiae
HEARD: May 29, 30 and June 1, 2023
RULING ON PROPOSED EXPERT EVIDENCE
bird J.:
Introduction:
[1] On March 4, 2022, a jury found Mr. Nettleton guilty of robbery. The trial was presided over by Maxwell J. As a result of events that took place after the conviction, Maxwell J. recused herself. I was appointed under Section 669.2(2) of the Criminal Code of Canada to conduct the sentencing hearing.
[2] The Crown seeks an order pursuant to section 753(1) of the Criminal Code declaring Mr. Nettleton to be a dangerous offender and imposing a sentence of detention in a penitentiary for an indeterminate period of time. It is the position of the Crown that Mr. Nettleton meets the criteria of a dangerous violent offender under Sections 753(1)(a)(i) and (ii). Further, the Crown submits that a fixed period of incarceration would be insufficient to protect the public.
[3] The index offence was committed on March 19, 2018. Mr. Nettleton was arrested on March 26, 2018, and has been in custody since that date. He has been charged with additional offences while in custody which has resulted in him serving sentences in relation to those offences. As a result, not all of Mr. Nettleton’s pre-sentence custody is attributable to the index offence. However, Mr. Nettleton has been before the court for more than five years on this offence.
[4] Because I did not preside over Mr. Nettleton’s trial, I rely on Justice Maxwell’s charge to the jury to understand the factual basis for the conviction for the index offence. According to Maxwell J.’s description of the offence, Mr. Nettleton entered a Subway sandwich store in Toronto and put a note on the counter which read “Be calm, be patient, don’t panic. Give me all your money, otherwise I’ll shoot you.” The store employee removed money from a cash register. Mr. Nettleton grabbed the money from his hands and turned to leave the store. He returned after taking a few steps to retrieve the note he had left on the counter. Maxwell J. went on to say, “There is no evidence that the man used actual violence during the incident. Both employees testified that the man did not make any physical contact with them. Both witnesses also testified that they did not see any sort of weapon and that the man mostly kept his hands in his pockets”. The robbery was captured by surveillance cameras in the store. The employee who gave Mr. Nettleton the money testified that Mr. Nettleton asked for more money and said “Are you fucking stupid? Give me your money. I’m serious”. He was scared because he did not know if Mr. Nettleton might hurt him. The second employee testified that during the robbery, Mr. Nettleton said “Give me the fucking money. I have a gun. I’ll shoot you.” He was also frightened and thought that Mr. Nettleton may have had a gun.
[5] Mr. Nettleton originally entered a guilty plea to the index offence before Moore J. in the Ontario Court of Justice on October 3, 2018. An order remanding Mr. Nettleton for an assessment pursuant to Section 752.1 of the Criminal Code was made on October 23, 2018. Dr. Scott Woodside was the forensic psychiatrist who completed the assessment. He authored a 103 page report that was dated August 18, 2019 (the “2019 report”). There were two appendices attached to the report. Appendix A is an index of all of the material Dr. Woodside reviewed. Appendix B is a 227 page document created by Dr. Woodside entitled “Review of Collateral Information”. It summarizes the information received from agencies including Corrections Canada, probation, several provincial detention centres, the Children’s Aid Society, the Toronto District School Board, the Centre for Addiction and Mental Health (CAMH), the Ministry of Child and Youth Services, police records and transcripts of earlier court proceedings.
[6] On October 22, 2020, Mr. Nettleton’s guilty plea was struck. He had a preliminary hearing in the Ontario Court of Justice on December 21, 2020 and was committed to stand trial in the Superior Court of Justice. On October 4, 2022, I made an order pursuant to Section 752.1 remanding Mr. Nettleton for an assessment for the purpose of dangerous or long-term offender proceedings. Dr. Woodside also conducted that assessment. Mr. Nettleton refused to meet with Dr. Woodside despite being given the opportunity to do so. Dr. Woodside’s report in response to my order was dated December 30, 2022 (the “2022 report”). It is 38 pages long. The 2022 report adopts the contents of the 2019 report and its appendices and states that both reports must be read together.
[7] In the winter of 2023, Crown counsel sent Dr. Woodside two emails identifying a total of five errors in the 2022 report. Dr. Woodside replied with an email dated March 27, 2023. In that email, he acknowledged the errors and clarified or explained them. Dr. Woodside then amended his report to reflect the changes he set out in his email. This report is dated March 27, 2023 (the “2023 report”).
[8] The dangerous offender hearing commenced with the evidence of Dr. Woodside on May 29, 2023. He was tendered by the Crown as an expert in forensic psychiatry and is the only proposed expert expected to be called by either party. Mr. Embry, in his role as amicus, took the position that Dr. Woodside ought not to be qualified as an expert witness in this case. Mr. Nettleton also opposed Dr. Woodside’s qualification. As a result, a voir dire took place and Dr. Woodside testified over the course of two days. He was cross-examined by both Mr. Embry and Mr. Nettleton. During the course of Dr. Woodside’s testimony, errors in the three reports he authored in relation to Mr. Nettleton were brought to light.
[9] Before reviewing Dr. Woodside’s evidence, it is important to note that my assessment of his qualifications as an expert is restricted to the unique facts of this case. There is no question that Dr. Woodside is an extremely knowledgeable and experienced forensic psychiatrist. He has conducted more than 160 court-ordered assessments pursuant to Section 752.1 of the Criminal Code. He has been qualified as an expert each time he has testified, in both levels of trial court in Ontario and in other provinces and territories. His education and experience as a forensic psychiatrist are impressive. However, there is no such designation as “expert for life”. Each case is fact specific. The ability of a witness to give opinion evidence as an expert must be determined by each trial judge based on the facts of their particular case.
[10] An example of this obligation on trial judges can be found in R. v. France, 2017 ONSC 2040. In that case, Molloy J. considered the admissibility of some portions of the evidence of Dr. Pollanen, who was the Chief Forensic Pathologist for Ontario. He was eminently respected and experienced in his field. Despite this, Molloy J. found that Dr. Pollanen did not fulfill his obligation to be “scrupulously even-handed” in how he presented his evidence in that case. As a result, he failed to meet his duty to the court as an expert. Justice Molloy said that she did not question Dr. Pollanen’s professional expertise or his integrity. She noted that he has lectured about how expert witnesses should conduct themselves in the aftermath of the Goudge Report. Molloy J. stated that the fact that Dr. Pollanen himself ran afoul of the principles he has lectured about is a compelling illustration of how easy it is to fall into error and how cautious lawyers and judges must be in evaluating expert evidence.
Errors in the 2019 Report:
[11] Diagnosis:
Under the heading of “Diagnosis and Prognosis”, Dr. Woodside wrote, “In Mr. Nettleton’s case, his relevant diagnoses are pedohebephilia and his alcohol use disorder.” This is completely inaccurate. Mr. Nettleton does not suffer from either disorder.
Errors Identified by Crown Counsel in the 2022 Report:
[12] Diagnosis:
Under the heading of “Diagnosis and Prognosis”, Dr. Woodside once again described Mr. Nettleton as having pedohebephilia and an alcohol use disorder. Earlier in his report, under the heading “Psychiatric Diagnoses”, he opined that Mr. Nettleton’s primary diagnosis “would appear to be one of Antisocial Personality Disorder/significant psychopathic personality traits and a possible Substance Use Disorder relating to use of marijuana and/or cocaine”.
In his email of March 27, 2023, Dr. Woodside acknowledged this was an error and said that section of the report should read “In Mr. Nettleton’s case, his relevant diagnoses are antisocial personality disorder and a possible substance use disorder”. He did not provide any explanation for how that error occurred.
[13] History of Domestic Assault:
Under the heading of “Criminogenic Variables”, Dr. Woodside said of Mr. Nettleton, “He has apparently been involved in relationships in the past although the quality of those relationships is largely unknown, beyond his having been convicted of assaultive behaviour directed towards the mother of some of his children. He was directed to take a domestic violence counselling course but apparently failed to complete this.”
In his email, Dr. Woodside stated, “Again, you are correct. This is an error. He does have a history of assaulting his father and threatening his mother but there is no known history of his assaulting any girlfriends or mother of any children. Little information is available regarding the quality of his relationships with any partners”. Dr. Woodside did not provide an explanation for including this erroneous information in his report. When he testified on the voir dire, he agreed that when he was drafting the report, he thought that Mr. Nettleton had a history of domestic violence[^1].
[14] Gang Association:
Under the heading of “Criminogenic Variables”, Dr. Woodside wrote, “Mr. Nettleton has reportedly been associated with a gang (the Driftwood Crips) from a young age and much of his offending behaviour appears to be related to trafficking in both drugs and guns as part of his gang membership. It appears that he has relatively entrenched antisocial beliefs and attitudes which will be very difficult to shift in the future.”
In his email, Dr. Woodside replied to the Crown saying, “Third, you noted that on page 26 of my report there is reference to Mr. Nettleton being part of the Driftwood Crips and having engaged in trafficking of drugs and guns as a member. Again, you are correct that this is an error. Mr. Nettleton has previously claimed to be a member of the “Bloods” and to have friends among members of the Crips. Additionally, he has engaged in trafficking of drugs but not necessarily as a member of any gang. Further, while he reported having carried and shared a gun with other individuals, it is unclear if these were other gang members; there is no known history of his trafficking in guns as might have been implied in the report”.
In the email, Dr. Woodside went on to redraft the paragraph that had referred to the Driftwood Crips as follows, “Mr. Nettleton has reportedly been associated with a gang (the “Bloods” and being the president of the N****** of the Left End – see report dated February 11, 2002, authored by Dr. Bassarath, CAMH) from a young age and having a number of friends in the Crips. Much of his earlier offending behaviour appears to be trafficking in drugs. He also has relatively entrenched antisocial beliefs and attitudes which will be difficult to shift in the future.”
During his evidence on the voir dire, Dr. Woodside testified that he misidentified the Bloods as the Driftwood Crips. He also described the error as a “typo”[^2]. However, as noted above, he included Mr. Nettleton’s gang membership as a criminogenic variable he considered in arriving at his psychiatric opinions and recommendations in the final version of the report dated March 27, 2023.
It is true that in a report dated February 11, 2002, Dr. Bassarath included a summary of a conversation with Mr. Nettleton about gang membership. At that time, Mr. Nettleton had just turned 16. He claimed to have been inducted into the Bloods gang at the age of 10 by a friend’s father who was a “mobster”. Mr. Nettleton said he had been actively involved in the gang since the summer of 2000 and hustled with the gang at least once a day. He said he had a few friends who were in a rival Crips gang. Mr. Nettleton also claimed that he was not going to leave the gang. There is no reference in the summary of the portion of Dr. Bassarath’s report entitled “Gang Involvement” to Mr. Nettleton trafficking guns or drugs as part of a gang.
Despite having referred to this portion of Dr. Bassarath’s assessment in the body of his 2019 report and Appendix B, Dr. Woodside did not include any reference to gang membership in the list of criminogenic variables, which is a key component of the portion of the report entitled “Psychiatric Opinions and Recommendations”.
There was other information in Appendix B of the 2019 report that dealt with Mr. Nettleton’s membership in a gang that Dr. Woodside did not refer to in the 2022 or 2023 report when asserting that Mr. Nettleton was a member of the Bloods. For example, Dr. Woodside assessed Mr. Nettleton pursuant to a youth court order in February of 2003 when he was 17 years old. In relation to much of what he had told Dr. Bassarath a year earlier, Mr. Nettleton advised Dr. Woodside that he was “just shooting the shit”. He denied numerous aspects of the information he had previously provided, including gang membership. Dr. Bassarath’s report also stated that Mr. Nettleton had claimed to have been involved in fights with members of the Crips while in custody, which staff reported never happened. Included in Appendix B is a summary of a parole report from July of 2006 in which Mr. Nettleton’s mother said that he was prone to giving “grandiose and delusional accounts of things he has done, such as having been a drug dealer or affiliated with gangs”. In her view, Mr. Nettleton was too erratic to be part of a gang and she indicated that this was more machismo on his part than reality. Appendix B also refers to an LSI-OR report from October of 2015, in which a Toronto Police officer stated that the police do not have any evidence to confirm that Mr. Nettleton had been involved in a gang or organized crime.
This information calls into question the reliability of Mr. Nettleton’s assertion, made one month after his 16th birthday, that he was a member of the Bloods street gang. When Dr. Woodside’s attention was drawn to the error in his 2022 report on the subject of gang membership, that portion of the report was re-written but continued to assert that Mr. Nettleton had an affiliation to a gang without reference to the conflicting material.
It should also be noted that while Dr. Woodside stated in the revised paragraph that “much of his earlier offending behaviour appears to be trafficking in drugs”, Mr. Nettleton has no criminal convictions for any drug offences. Thirty-four pages of Dr. Woodside’s 2019 report were devoted to summarizing Mr. Nettleton’s history with the criminal justice system, beginning in 2001 when he was 15 years old. There is no reference in the summary of any of Mr. Nettleton’s prior offences to drugs.
[15] Description of the Index Offence:
In his email, Dr. Woodside wrote, “you noted that on page 29 of my report, the report reads, “In the case of the index offenses, he put others at risk of death in order to effect a theft of drugs in a planned fashion.” The reference to theft of drugs is incorrect and the sentence should read, “In the case of the index offenses, he put others at risk of death in order to effect a theft in a planned fashion”. Other than removing the reference to drugs, Dr. Woodside did not change his description of the index offenses (sic). Nor did he explain why he initially described the robbery as being drug related.
Dr. Woodside’s amended version of the index offence is not correct. First, there is only one index offence and Dr. Woodside pluralized “offenses”. More concerning is the fact that Mr. Nettleton did not “put others at risk of death” as asserted. As noted above, Justice Maxwell stated that there was no evidence that Mr. Nettleton used actual violence during the robbery. Both employees testified that he did not make any physical contact with them and that they did not see any sort of weapon. Dr. Woodside had a copy of Justice Maxwell’s charge to the jury.
During his testimony on the voir dire, Dr. Woodside was asked how he could have gotten his description of the robbery so wrong in reference to it being a planned theft of drugs. His response was “I don’t know”. Dr. Woodside was also asked to explain how Mr. Nettleton “put others at risk of death” during the course of the index offence. His answers included: “Well, he’s indicated that he had a weapon with him” and “Well, he’s indicated that he’s got a weapon with him. Certainly, I think the victim would have perceived them of being at risk of death. He’s previously used a weapon in robberies”. Mr. Embry then suggested “You’re asserting that Mr. Nettleton put others at an actual risk of death” to which Dr. Woodside said “yes”. Dr. Woodside was then asked to explain how that was objectively correct. He answered, “No. He’s indicated that he has a weapon that he’s prepared to use, I guess that’s the implication. That, to me, would be indicating that he’s prepared to put others at risk of death”. Despite the fact that Mr. Nettleton did not display a weapon or make any physical contact with the victims, Dr. Woodside maintained his position that he “put others at risk of death” during the index offence.
[16] Scores on the PCL-R and VRAG:
Crown counsel pointed out that the scores reported by Dr. Woodside in relation to the PCL-R (28.2) and the VRAG (23) were lower than those recorded in the 2019 report. The relevant portions of the 2022 report read “Mr. Nettleton’s PCL-R score was 28.2 out of a possible 40 points” and “Mr. Nettleton obtained a score of +23 on the VRAG”. In his email, Dr. Woodside wrote that those sentences should read “Mr. Nettleton’s PCL-R score was 32.9 out of a possible 40 points” and “Mr. Nettleton obtained a score of +25 on the VRAG.” Dr. Woodside did not explain how the error in reporting the VRAG score was made. In relation to the difference in the PCL-R score, he wrote, “The PCL-R score reported in the 2022 report refers to his total score (28) rather than what should have been reported – his score after prorating for omitted items. The actual prorated score on the PCL-R should have read 32.9, the same score he received in 2019.” This explanation contains an inaccuracy. It says that the 2022 report included Mr. Nettleton’s score before prorating (his raw score) which was 28. The 2022 report actually stated that Mr. Nettleton’s score on the PCL-R was 28.2. It is not possible for a raw score on the PCL-R to be anything other than a whole number. A prorated score can include a decimal, but a raw score cannot. Dr. Woodside did not address this discrepancy in his email. Dr. Woodside was asked about this during his testimony on the voir dire and described it as a typo. He said that the incorrect VRAG score was similarly a typo.
[17] Towards the end of his cross-examination, Dr. Woodside was asked whether, after being alerted by the Crown to the aforementioned errors in his 2022 report, he reviewed that report to see if there were other errors in it. He said that he did not. As it turns out, there were, and those additional errors formed part of the 2023 report.
Errors in the 2023 Report:
[18] Mr. Nettleton’s Use of Substances:
In the 2023 report, Dr. Woodside stated, “There is no clear evidence of substance use on Mr. Nettleton’s part.” In contrast, in the 2019 report, Dr. Woodside said that Mr. Nettleton had admitted to using alcohol, marijuana and cocaine. Mr. Nettleton’s parents had previously confirmed his use of marijuana. Dr. Woodside also noted that there was evidence of at least intermittent use by Mr. Nettleton of cannabis and alcohol while incarcerated. Three of the six recommendations Dr. Woodside made in 2019, should Mr. Nettleton be placed in the community, were directed at his use of substances. When asked why he wrote in the 2023 report that there was no clear evidence of substance use on Mr. Nettleton’s part, Dr. Woodside said that was too definitive a statement and he should have said that Mr. Nettleton had reported using substances. He then agreed that was the opposite of what he had actually written in the 2023 report.
The following paragraph appeared in the 2023 report under the heading “Criminogenic Variables”: “Alcohol use has also been problematic for Mr. Nettleton although never to the point where he sought out treatment or it interfered overtly with his employment. However, he noted most of his offending behaviour took place during periods where he was consuming alcohol more heavily.” This paragraph was not in the 2019 report. Dr. Woodside agreed that it did not apply to Mr. Nettleton. He could not explain where it came from.
[19] Assertion that Mr. Nettleton Trafficked in Drugs:
In the 2023 report, Dr. Woodside wrote “As well, he has clearly been involved in the trafficking of drugs for a substantial period of time and has been convicted of multiple drug-related offences” and, “There is no clear evidence of substance use on Mr. Nettleton’s part, but he has been involved in the drug culture for many years, incurring numerous convictions for drug-related offences.” Mr. Nettleton has no convictions for drug offences and there is no evidence that he has been involved in the drug subculture for many years.
[20] Abuse Suffered as a Child:
Under the heading “Criminogenic Variables”, Dr. Woodside wrote, “According to collateral information, Mr. Nettleton has previously denied being subjected to abuse of any kind in childhood.” In contrast, in his 2019 report, Dr. Woodside referred to what Mr. Nettleton told Dr. Bassarath about his childhood in 2002. At that time, Mr. Nettleton said that it had been “hard as hell” growing up. He said that he had genuine spite for his family because they were bad people. He alleged that his father had attempted to physically abuse him and had spat on him. Dr. Woodside also included “Difficulties in childhood; reports emotional abuse by adoptive family” in the list of Mr. Nettleton’s principal criminogenic factors in the 2019 report. In his evidence on the voir dire, Dr. Woodside acknowledged that his statement in the 2023 report was an error.
[21] Carrying a Weapon in the Index Offence:
In the portion of the report entitled “Risk Assessment”, Dr. Woodside stated, “His repeated carriage of weapons and use of same in the index offenses also speaks to some degree to the anticipated severity of future potential re-offenses.” When Dr. Woodside was asked about this, in light of the fact that no weapon was seen during the index offence, he referred to the fact that Mr. Nettleton had used a gun in a previous offence (a robbery that occurred on February 15, 2005). He acknowledged that his reference to the use of a weapon in the index offence was incorrect and that the sentence should have referred to the prior robbery. Apart from the 2005 robbery, the only information about Mr. Nettleton carrying a weapon comes from his self-reports as a teenager.
[22] Whether Mr. Nettleton has Children:
Under the heading of “Employment Prospects and Support within the Community”, Dr. Woodside wrote, “While he has children, it does not appear that he has ever been able to provide support for them.” It is unclear whether Mr. Nettleton has children and there is no evidence about what, if any support he has provided. The only references to Mr. Nettleton having a child are contained in Corrections Canada records. On two occasions, he referred to his daughter. In Appendix B of his 2019 report, Dr. Woodside summarized an interview with Mr. Nettleton’s biological mother conducted by a parole officer in 2008. At that time, his biological mother said that Mr. Nettleton did not have any children.
[23] Programming:
Under the heading “Previous Response to Treatment”, Dr. Woodside wrote, “Mr. Nettleton has been offered and received treatment in the past although efforts in this regard appear to have been quite limited. He did not complete a domestic violence program when requested to do so and also did not complete an Anger Management Program, missing too many sessions. He did complete the Change is a Choice-Connections Program.” That is inaccurate. Mr. Nettleton was never ordered to attend a domestic violence program, nor did he complete the Change is a Choice Program.
In the “Summary” section of the report, Dr. Woodside recommended that if Mr. Nettleton is placed in the community, he may benefit from domestic violence counselling. That is incorrect since Mr. Nettleton has no convictions for domestic violence.
[24] Description of Mr. Nettleton’s Behaviour as a Youth:
Under the heading “Criminogenic Variables”, Dr. Woodside wrote, “However, he does appear to have shown evidence of significant conduct-disordered behaviour beginning prior to the age of 12 and his mother reported feeling he was out of control at home. At a young age, he began spending time with older peers who were suspected by his mother of being involved in criminal activity and he began to accrue a criminal record of his own by age 13, continuing to incur convictions thereafter, into adulthood.”
While Mr. Nettleton’s mother has described his behaviour as a child and youth as being challenging, she did not describe it in this fashion. For example, in 2002, Mrs. Nettleton told Dr. Bassarath that “Caleb was often isolated because he was too depressed. He had one very good friend who was the same age and sex. They often played basketball together, but he would come and go based on Caleb’s mental health. Caleb was quite talented at other organized sports but eventually stopped because he was having panic attacks until age 14. In the summer of 2000, Mrs. Nettleton stated that Caleb began hanging with new kids, one of which was a former teammate. She was aware that two of the kids came from abusive homes. She stated that they played basketball together and denied any knowledge of involvement in gangs.” Further, the first entry on Mr. Nettleton’s criminal record was in December of 2001, the month before his 16th birthday. That offence took place in November of 2001. Mr. Nettleton did not begin to accrue a criminal record at the age of 13 as asserted.
[25] Dr. Woodside testified that when he wrote the 2022 report, he spent at least a couple of hours reviewing the section entitled “Updated Psychiatric Opinions and Recommendations”. That portion of the report is 16 pages long. Despite this review, he did not notice any of the aforementioned errors. He also did not recognize the differences between the same section of the 2019 report, which did not contain these errors, and the 2022 report. In his testimony on the voir dire, Dr. Woodside agreed that he did not read it as carefully as he should have. Further, Dr. Woodside testified that he read both the 2019 and the 2023 reports on the weekend prior to testifying. The only mistake he noticed in the 2023 report was the inclusion of a PCL-R score of 28.2 in a second area of the report. He had corrected the PCL-R score on one page after receiving the email from Crown counsel but left the erroneous score in on another page. Apart from that, Dr. Woodside did not detect any other errors in the 2023 report, nor did he notice the differences between the two reports.
The N.W. Report:
[26] In response to a Section 752.1 order, Dr. Woodside authored a report in relation to Mr. W. dated January 13, 2014. Mr. W. was convicted of two counts of attempted murder with a firearm. Dr. Woodside described the index offences as involving a plan by Mr. W. and two unknown associates to rob the victim of two pounds of marijuana. During the course of the robbery, Mr. W. fired a gun at the victim and another person at point-blank range. His accomplices also fired shots directly at the victims. At least 14 shots were fired, and one victim was shot in the leg.
[27] Mr. W. had a lengthy criminal record that began when he was 13 years old. It included two prior convictions for possessing a loaded firearm, a conviction for trafficking in firearms, two convictions for possession of a controlled substance and a conviction for trafficking in a controlled substance.
[28] The errors identified above in the 2022 and 2023 reports in relation to Mr. Nettleton must be considered in the context of the N.W. report. The N.W. report was shown to Dr. Woodside in cross-examination after he had been asked to explain the errors in Mr. Nettleton’s reports.
[29] History of Domestic Assault:
The erroneous portion of the 2023 report about Mr. Nettleton reads: “He has apparently been involved in relationships in the past although the quality of those relationships is largely unknown, beyond his having been convicted of assaultive behaviour directed towards the mother of some of his children. He was directed to take a domestic violence counselling course but apparently failed to complete this.”
Under the heading “Criminogenic Variables” in Mr. W.’s report, the identical paragraph appears: “He has apparently been involved in relationships in the past although the quality of those relationships is largely unknown, beyond his having been convicted of assaultive behaviour directed towards the mother of some of his children. He was directed to take a domestic violence counselling course but apparently failed to complete this.” Unlike Mr. Nettleton, Mr. W. did have a conviction for domestic assault.
[30] Gang Association:
The 2022 report in relation to Mr. Nettleton contained the following paragraph about gang association: “Mr. Nettleton has reportedly been associated with a gang (the Driftwood Crips) from a young age and much of his offending behaviour appears to be related to trafficking in both drugs and guns as part of his gang membership. It appears that he has relatively entrenched antisocial beliefs and attitudes which will be very difficult to shift in the future.” As noted, after receiving the email from Crown counsel, Dr. Woodside amended this paragraph to say that Mr. Nettleton was actually associated with the Bloods and had a number of friends in the Crips.
Under the heading “Criminogenic Variables” in Mr. W.’s report, the following paragraph appears: “Of greatest note, Mr. W. has reportedly been associated with a gang (the Driftwood Crips) from a young age and much of his offending behaviour appears to be related to trafficking in both drugs and guns as part of his gang membership. It appears that he has relatively entrenched antisocial beliefs and attitudes which will be very difficult to shift in the future.”
[31] Description of the Index Offence:
The 2022 report in relation to Mr. Nettleton contained the following description of the index offence: “In the case of the index offenses, he put others at risk of death in order to effect a theft of drugs in a planned fashion.” After receiving the email from Crown counsel, Dr. Woodside removed the reference to drugs but otherwise did not change his description of the offence.
Under the heading “Assessment of Dangerous Offender or Long-Term Offender Status” in Mr. W.’s report, the following description of his index offences appears: “In the case of the index offenses, he put others at risk of death in order to effect a theft of drugs in a planned fashion.” Given the facts of Mr. W.’s offences, that description is entirely accurate.
[32] Scores on the PCL-R and VRAG:
In the 2022 report in relation to Mr. Nettleton, his PCL-R score was reported to be 28.2 and his VRAG score +23. Dr. Woodside described these as typographical errors.
Mr. W’s score on the PCL-R was 28.2 and his VRAG score was +23.
[33] Mr. Nettleton’s Use of Substances:
The erroneous portion of the 2023 report about Mr. Nettleton reads: “There is no clear evidence of substance use on Mr. Nettleton’s part.” That sentence appears in Mr. W.’s report.
The paragraph about problematic alcohol use in Mr. Nettleton’s report does not come from the N.W. report. Dr. Woodside speculated that it may have been pulled from some other unknown report.
[34] Assertion that Mr. Nettleton Trafficked in Drugs:
In relation to Mr. Nettleton, Dr. Woodside wrote: “As well, he has clearly been involved in the trafficking of drugs for a substantial period of time and has been convicted of multiple drug-related offences.” This is not accurate. That exact sentence appears in Mr. W.’s report and accurately describes his history.
[35] Abuse Suffered as a Child:
In the 2023 report, Dr. Woodside stated that Mr. Nettleton has previously denied being subjected to abuse of any kind in childhood. Of Mr. W., Dr. Woodside wrote: “According to collateral information, Mr. W. has previously denied being subjected to abuse of any kind in childhood.”
[36] Carrying a Weapon in the Index Offence:
In the 2023 report about Mr. Nettleton, Dr. Woodside wrote, “His repeated carriage of weapons and use of same in the index offenses also speaks to some degree to the anticipated severity of future potential re-offenses.” This sentence appears verbatim in Mr. W.’s report.
[37] Whether Mr. Nettleton has Children:
Under the category of “Employment Prospects and Support Within the Community”, in the 2023 report about Mr. Nettleton, Dr. Woodside wrote, “While he has children, it does not appear that he has ever been able to provide support for them.” This sentence appears verbatim in Mr. W.’s report.
[38] Description of Mr. Nettleton’s Behaviour as a Youth:
The following inaccurate paragraph was in Mr. Nettleton’s 2023 report under the category of “Criminogenic Variables”: “However, he does appear to have shown evidence of significant conduct-disordered behaviour beginning prior to the age of 12 and his mother reported feeling he was out of control at home. At a young age, he began spending time with older peers who were suspected by his mother of being involved in criminal activity and he began to accrue a criminal record of his own by age 13, continuing to incur convictions thereafter, into adulthood.” This paragraph also appears verbatim in Mr. W.’s report.
[39] When he was presented with the N.W. report in cross-examination, Dr. Woodside conceded that he must have used it as a template and failed to change the facts to reflect Mr. Nettleton’s history. Dr. Woodside agreed that his reports consist of two main sections: the factual background of the offender and his “Opinions and Recommendations”. The assessment of an offender’s risk, his diagnoses, his response to treatment and whether, from a psychiatric perspective, he meets the criteria for a dangerous offender designation, are all contained within the “Opinions and Recommendations”. It is a crucial part of any Section 752.1 report. That section of both the 2022 and 2023 reports about Mr. Nettleton was a cut and paste from the N.W. report. Very few changes were made to it. Dr. Woodside agreed that any facts contained within that section that accurately describe Mr. Nettleton are a matter of coincidence. It was, in fact, not written about Mr. Nettleton, but rather about Mr. W.
The Positions of the Parties:
[40] Ms. Stanton, on behalf of the Crown, acknowledges that Dr. Woodside made several serious errors in his 2022 and 2023 reports. However, she submits that, particularly at the threshold admissibility stage, Dr. Woodside is a properly qualified expert whose testimony is necessary, relevant and not subject to any exclusionary rule. With respect to possible bias, the Crown relies on the fact that Dr. Woodside’s 2019 report was not impacted by the N.W. report. In addition, Mr. Nettleton’s scores on the risk assessment tools did not change between 2019 and 2022, which lends reliability to Dr. Woodside’s conclusions in his 2023 report. The Crown characterizes the mistakes in the 2022 and 2023 reports as editing errors that do not adversely impact the substantive content.
[41] In the alternative, the Crown submits that an appropriate remedy, should I find that the 2022 and 2023 reports are tainted, would be to excise the affected portions of them or exclude them entirely. This would allow Dr. Woodside to testify based solely on his 2019 report. He reached the opinions detailed in the 2019 report in a manner that is beyond reproach. Further, it is not the report of an expert that is the evidence. It is his viva voce testimony.
[42] In his role as amicus, Mr. Embry submits that the Crown cannot establish that Dr. Woodside is a properly qualified expert in this case because he is not able to provide evidence that is free from bias. Specifically, it is Mr. Embry’s position that Dr. Woodside has demonstrated significant confirmation and professional credibility bias in Mr. Nettleton’s case. Mr. Embry asserts that Dr. Woodside’s approach to his evidence demonstrates an unwillingness to be forthright and to reconsider his opinions when faced with contradictory information. As a result, it will not be possible to effectively cross-examine him to test his credibility and reliability.
[43] While Mr. Embry takes no issue with the manner in which Dr. Woodside prepared the 2019 report, he does not agree that the Crown’s alternate position of excluding the 2022 and 2023 reports solves the problem. It is not Dr. Woodside’s conduct in preparing the 2019 report that matters. Rather, it is his current ability to testify in the manner an expert is required to in order to fulfill his duty to the court. It is Mr. Embry’s position that Dr. Woodside’s ability to do so has been irreversibly compromised as a result of confirmation and professional credibility bias.
[44] Mr. Nettleton made submissions on his own behalf. He described Dr. Woodside as “doubling down” when confronted with the fact that a significant portion of the 2022 and 2023 reports were about an entirely different person. Mr. Nettleton submits that Dr. Woodside’s intractability demonstrates that he is unable to give unbiased evidence in this case.
The Law:
[45] The test governing the admissibility of expert evidence was set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 and clarified in R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534 (C.A.), White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 and R. v. Abbey, 2017 ONCA 640 (Abbey #2).
[46] In Abbey #2, the court made it clear that the trial judge’s role as a gatekeeper at the admissibility stage is an important one. As stated in R. v. J. – L.J., 2000 SCC 51, the admissibility of expert evidence should be scrutinized at the time it is proffered and not admitted too easily on the basis that any frailties in the evidence go to its weight (at paragraph 28).
[47] As set out in White Burgess, there is a two-stage approach to admissibility. The first stage deals with the threshold requirements of admissibility while the second focuses on the trial judge’s gatekeeping role. At the fist stage, the expert evidence must be: (i) logically relevant, (ii) necessary, (iii) not subject to any other exclusionary rule, and (iv) be given by a properly qualified expert.
[48] In order to be properly qualified, an expert must be willing and able to fulfill his or her duty to the court to provide evidence that is impartial, independent and unbiased. As stated in White Burgess, experts have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert who is unable or unwilling to comply with this obligation is not qualified (at paragraph 2).
[49] If the proposed expert evidence does not meet the threshold admissibility requirements, it must be excluded. If the evidence satisfies the first step in the analysis, the trial judge must then exercise their gatekeeper function to ensure that the benefits of admitting the evidence outweigh the costs of its admission. If the benefits of the evidence do not outweigh its costs, then it will be excluded notwithstanding the fact that it has met the threshold requirements (Abbey #2 at paragraph 49).
[50] At the gatekeeping stage, in assessing whether the benefits of the evidence outweigh its potential risks, the trial judge will consider factors including its legal relevance, necessity, reliability and the absence of bias. Even if an expert is found to be properly qualified at the first stage of the analysis, concerns about his or her independence and impartiality must be taken into account at the gatekeeping stage (White Burgess at paragraph 54).
[51] In this case, it is conceded that Dr. Woodside’s evidence is logically relevant, necessary and not subject to any other exclusionary rule. The only criteria that is of concern is whether Dr. Woodside is a properly qualified expert. As noted earlier, Dr. Woodside has considerable knowledge and experience in the field of forensic psychiatry. The issue is whether, in this particular case, he is free from bias.
[52] In White Burgess, the court defined a lack of bias as meaning the evidence of the expert does not unfairly favour one party’s position over that of another (at paragraph 32). Importantly, bias means actual, not apparent bias (R. v. Mills, 2019 ONCA 940, at paragraph 43).
[53] At the threshold stage of the analysis, exclusion should only occur in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than a clear unwillingness or inability should not lead to exclusion at the threshold stage but should be taken into account in weighing the benefits and costs of the evidence. The threshold requirement is not particularly onerous and it will be quite rare that a proposed expert’s evidence will be excluded on this basis (White Burgess at paragraph 49).
[54] Absent a challenge, an expert’s testimony that he understands and accepts his duty to the court will generally suffice. Dr. Woodside made that attestation in this case. As a result, the burden is on Mr. Nettleton, who is challenging his qualifications, to show that there is a realistic concern that Dr. Woodside’s evidence ought not to be received because he is unable or unwilling to fulfill his duty. If Mr. Nettleton demonstrates such a concern, the burden shifts back to the Crown to establish on a balance of probabilities that Dr. Woodside is an impartial, independent and unbiased expert. If the Crown cannot do so, Dr. Woodside’s evidence, or those parts of it which are tainted, must be excluded (White Burgess at paragraph 48).
[55] In this case, Mr. Embry submits that Dr. Woodside’s evidence is rendered inadmissible as a result of confirmation bias and professional credibility bias. There is no suggestion that Dr. Woodside is not independent and intends to give evidence that is more favourable to the Crown than to Mr. Nettleton. I accept that he views himself as a neutral party whose duty is to the court. However, bias can be unconscious and unintended.
[56] Confirmation bias was defined in Mills as an unconscious tendency of those who desire a particular outcome to search for things that support that outcome while ignoring contradictory information (at paragraph 70). This issue was briefly explored with Dr. Woodside because he used the N.W. report as a template and had concluded that Mr. W. met the definition of a dangerous offender, from a psychiatric perspective. Specifically, it was suggested to Dr. Woodside that there was a real danger that in selecting a template from an offender who he felt was similar to Mr. Nettleton, his opinion could be biased. Dr. Woodside agreed that was possible[^3]. I am not persuaded that this created a confirmation bias. I do not find that Dr. Woodside had consciously or subconsciously pre-determined the issue of whether or not Mr. Nettleton meets the criterion for a dangerous offender designation.
[57] In France, Molloy J. quoted from an article by Professor Paciocco (as he then was) which defined professional credibility bias as occurring when an expert has a professional interest in maintaining their own credibility after having taken a position. Justice Molloy found that Dr. Pollanen suffered from that type of bias because he expressed a firm opinion about whether an injury could have been caused by an accidental fall at the preliminary hearing and at trial looked for ways to support that opinion rather than considering the issue objectively (at paragraph 50).
[58] Justice Woodley considered the issue of bias at the threshold stage in relation to a medical doctor in Parliament et al. v. Conley and Park, 2019 ONSC 3995.[^4] Woodley J. found that the proposed expert’s report contained credibility assessments, inaccuracies, and methodological flaws (at paragraph 22). In excluding the evidence, Woodley J. stated that what was particularly fatal to the admissibility of the expert opinion evidence was the witness’ refusal to part from her evidentiary conclusions during her testimony on the voir dire. This bias could not be addressed by cross-examination. The witness was found to lack the necessary independence which rendered her incapable of providing an impartial opinion. The doctor was therefore not a properly qualified expert, and her evidence did not meet the threshold test for admissibility (at paragraphs 32, 37 and 38).
[59] The Crown relies on the decision of Lemon J. in R. v. S.L. 2020 ONSC 4036. In that case, the proposed expert was permitted to testify even though large portions of his report were plagiarized. The expert was providing an opinion about diagnostic and treatment procedures in the field of Traditional Chinese Medicine. He was not being asked to provide an opinion specific to a particular individual, as Dr. Woodside is. More importantly, Lemon J. stated that it was not the position of the defence that the expert was biased but rather that his evidence was unreliable and/or unbelievable (at paragraph 86). As a result, that case was decided on a different basis.
Analysis:
[60] I am satisfied that in this case, Mr. Nettleton has raised a realistic concern that Dr. Woodside is unable or unwilling to fulfill his duty as an expert as a result of professional credibility bias.
[61] The difficulties caused by this bias manifested themselves months before Dr. Woodside testified on the voir dire. Dr. Woodside testified that when he created the 2022 report, he spent a couple of hours reviewing the “Opinions and Recommendations” section, which is 16 pages long[^5]. In doing so, he failed to notice the many errors in it and did not pick up on the differences between that section and the same section in the 2019 final report. Dr. Woodside agreed that he did not read his 2022 report as carefully as he should have and stated that, at the time, he believed there were no substantive changes to it. This confidence in the conclusions he reached three years earlier resulted in Dr. Woodside failing to critically review his own work in an effort to ensure that it was accurate and reliable. He presumed it was.
[62] More concerning is the fact that even when he received two emails from Crown counsel alerting him to mistakes in the 2022 report, Dr. Woodside only fixed those errors. He did not take the time to review the report in its entirety to see if it contained other mistakes. Nor did he investigate the source of the errors that were pointed out to him. The fact that Dr. Woodside was told that he had made at least five mistakes should have caused him sufficient concern to look into the issue further. Dr. Woodside did not doubt the correctness of his work even when he had good reason to do so. In relation to the issue of Mr. Nettleton’s gang association, he continued to maintain his position and simply changed the name of the gang from the Crips to the Bloods. While Mr. W. was an active gang member, the information about Mr. Nettleton’s association with a gang was ambivalent and extremely dated. Dr. Woodside’s professional credibility bias led him to simply substitute the name of one gang for another, rather than investigating the matter further to ensure that the assertion he was making about Mr. Nettleton was well-founded.
[63] Dr. Woodside said that he reviewed the 2019, 2022 and the 2023 reports over the course of the weekend immediately before he testified. Despite doing so, Dr. Woodside did not realize that the vast majority of the “Opinions and Recommendations” section of the latter two reports referred to someone other than Mr. Nettleton. This suggests that he did not undertake more than a perfunctory review of this portion of the reports. Once again, this was the result of the fact that Dr. Woodside presumed his opinions were correct and did not feel the need to conduct a careful review.
[64] Dr. Woodside’s evidence during the voir dire contained many examples of his professional credibility bias causing him to support a position he had previously taken despite being confronted with evidence that it was inaccurate, including the following:
(i) Perhaps the most glaring example of facts from the N.W. case not being applicable to Mr. Nettleton is the description of the index offence as “putting others at risk of death”. Dr. Woodside consistently tried to explain how that characterization did apply to Mr. Nettleton. His original position, prior to seeing the N.W. report, was to rely on the fact that the note Mr. Nettleton used referred to a weapon, even though one was never seen or used. Even after being shown the N.W. report, Dr. Woodside continued to attempt to support his position. It was suggested to him that he had imported the risk of death, which was very real in Mr. W.’s index offences, into Mr. Nettleton’s situation where there was not an actual risk of death. He responded, “So, with respect to the index offence, that’s correct. However, this individual had previously used a gun in a previous robbery, which I would view in the same manner as having put people at risk of death.”[^6] Characterizing an offence Mr. Nettleton committed 18 years ago as being the same as Mr. W’s index offences in any manner is simply not accurate. Rather than concede this point, Dr. Woodside searched for a way in which to force a square peg into a round hole.
(ii) When asked about the fact that the description of Mr. Nettleton’s youth actually came from Mr. W.’s mother, Dr. Woodside testified, “I accept that this has been imported and incorrectly, most of what is there applies to Mr. Nettleton, but clearly it’s not exactly his history.”[^7] It is not Mr. Nettleton’s history at all since it was provided by someone’s else’s mother. Dr. Woodside’s evidence on this point is akin to saying, “no harm, no foul”. His answer suggests that since, by coincidence, some of what was said could apply to Mr. Nettleton, the error is not meaningful.
(iii) With respect to the errors in the section of the report entitled “Employment Prospects and Supports within the Community”, it was suggested to Dr. Woodside that what he wrote was very individualized and very wrong. He answered, “I would agree. That’s more markedly different, although again it’s not as though he actually does have known supports in the community. I think again that may be why I did not pick up on this.”[^8] Once again, rather than simply conceding that he had made a significant mistake, Dr. Woodside minimized its impact.
(iv) The criminogenic factors listed in Dr. Woodside’s report are supposed to be specific to the individual about whom the report is written. The criminogenic factors in the 2022 and 2023 reports are Mr. W.’s, not Mr. Nettleton’s. In his evidence on re-examination, Dr. Woodside conceded this but stated that the N.W. factors all apply to Mr. Nettleton. Once again, this is suggestive of a “no harm, no foul” mentality. Moreover, the factors listed in the 2023 report differ in material respects from those in the 2019 report, which actually related to Mr. Nettleton.
(v) When Dr. Woodside was being asked about the section of the report dealing with Mr. Nettleton’s response to treatment, which included a reference to a domestic violence program he was never ordered to take and another program that Mr. W. had completed, it was suggested to him that he was not taking what he had written in the report very seriously. Dr. Woodside responded, “I believe this reflects an error on my part in terms of pulling from an unedited report into the 2022 report and not recognizing that. And to describe these as dramatically wrong, like under his treatment, I think is wrong. Both individuals, 2014 and Mr. Nettleton, have been offered and refused treatment.”[^9] Once again, Dr. Woodside attempts to fit Mr. Nettleton into Mr. W.’s facts.
(vi) When Dr. Woodside was asked how he failed to notice the differences between his 2019 report and those written in 2022 and 2023, he attempted to characterize the relevant portions of the report as being primarily boilerplate. For example, he said, “So, in fairness, when I’m reading over the reports, I’m looking primarily at the content of non-boilerplate. So, for boilerplate sections, I think I read those less carefully. Assuming that it is the same, that I haven’t made a mistake, but no, it did not jump out at me that these were dramatically different, and of course there are differences. I appreciate you described them as very dramatic. I described them as somewhat more subtle.”[^10] It was suggested to Dr. Woodside that the analysis section of his 2022 report was almost identical to the one in the N.W. report. He replied, “Yeah, so I would agree. Most of it is boilerplate.”[^11]
(vii) Dr. Woodside was asked about errors he made in the section of the 2023 report entitled “Assessment of Dangerous Offender or Long-Term Offender Status”, which is clearly a very significant portion of the document. Mr. Embry asked, “So that paragraph is an example of boilerplate language that you may skim?” Dr. Woodside responded, “It is largely, and I may not have paid as close attention to it, because I already knew what I thought in that regard about there was abundant evidence for that criteria being met, so I clearly did not read it as carefully as I should have.” Again, Dr. Woodside proceeded from the premise that the opinion he had previously arrived at was correct which caused him to miss a significant error in relation to his description of Mr. Nettleton’s offending behaviour.
[65] Also of concern is Dr. Woodside’s response during his testimony on the voir dire when he was asked about the potential impact of his errors on his opinion in relation to Mr. Nettleton. He was asked in cross-examination, “So, all of those mistakes in the 2023 report, I mean can you say that none of those had an effect on your opinion?” Dr. Woodside immediately answered, “I can”, and went on to explain that the mistakes did not affect his risk assessment. When Dr. Woodside resumed his cross-examination two days later, it was pointed out to him that even after he became aware that the “Psychiatric Opinions and Recommendations” section of the N.W. report had been erroneously imported into his 2022 and 2023 reports about Mr. Nettleton, he did not request time to reconsider his opinion. Dr. Woodside testified that it was immediately obvious to him that his opinion was the same now as it was when he wrote the 2019 report.
[66] It may be that Dr. Woodside’s opinion should remain consistent, despite the problems with his 2022 and 2023 reports. However, the immediacy of his affirmation that he is correct is concerning. It suggests that he is unwilling to reconsider his position even when there may be good reason to do so.
[67] It is the position of Mr. Embry and Mr. Nettleton that this professional credibility bias will render any cross-examination of Dr. Woodside on the substance of his opinions ineffective. He has demonstrated that he is committed to the position he has previously taken and will not vary from it.
[68] The Crown’s alternate position, which would prevent it from relying on the assessment Dr. Woodside conducted as a result of my Section 752.1 order, does not address the problem. First, that position is premised on the fact that because it was untainted by the N.W. report, Dr. Woodside’s 2019 opinion is reliable. The fact that it may be untainted does not guarantee its accuracy and reliability in all aspects. The report is 103 pages long. There may be portions of it that can be challenged. I am not satisfied that Dr. Woodside is capable of identifying and providing objective evidence about any frailties that may exist in his 2019 assessment of Mr. Nettleton. As a result, the Crown has not established on a balance of probabilities that he is a properly qualified expert on the facts of this case.
[69] There is also a jurisdictional problem inherent in the Crown’s alternate position. Section 753(1) of the Criminal Code permits a dangerous offender application to be made after “an assessment report is filed under subsection 752.1(2)”. Section 752.1(2) requires the person conducting an assessment to file a report of the assessment “with the court” not later than 30 days after the end of the assessment period. If the 2019 report of Dr. Woodside was filed with a court, it was not the Superior Court of Justice. It would have been filed in the Ontario Court of Justice sometime in 2019. Section 752.1(2) of the Criminal Code has not been complied with in the proceedings before me in relation to the 2019 report of Dr. Woodside. The 2022 report was filed with this court and incorporated the 2019 report. If the 2022 report is not admissible, the Crown cannot rely on the 2019 report standing alone because it was not filed in compliance with Section 752.1(2) on the application before me.
[70] Even if Dr. Woodside’s evidence passed the threshold analysis, I would exclude it at the gatekeeper stage. At this step, I am required to balance the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risks. This inquiry is case-specific and involves the exercise of judicial discretion, not the application of a bright line rule. The question is whether the value of the evidence is worth what it costs in terms of its impact on the trial process. The criteria for reception are relevance, reliability and necessity measured against the consumption of time, prejudice and confusion the evidence may cause. The benefit side of this assessment requires a consideration of the probative value of the evidence, as well as the significance of the issue to which it is directed. This necessarily involves a consideration of the reliability of the evidence, but not to such an extent as to intrude upon the trier of fact’s task in assessing ultimate reliability. The independence of the expert and his or her impartiality are also factors. The cost side of the analysis examines the risks inherent in the introduction of expert opinion evidence which include the consumption of time, prejudice, confusion and the danger that the trier of fact will not be able to critically assess the evidence (R. v. Shafia, 2016 ONCA 812, at paragraphs 231 – 233).
[71] There is no question that the evidence of Dr. Woodside is relevant and necessary which enhances its probative value. There is, however, a concern about the reliability of his evidence, particularly in relation to the 2022 and 2023 reports. It is important to remember that indeterminate sentences, which can be the result of a dangerous offender application, are exceptional sentences (R v. Steele, 2014 SCC 61). In R v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.J. No. 62, La Forest J. described the effects of an indeterminate sentence on a dangerous offender as “profoundly devastating” (at paragraph 46). For this reason, the Alberta Court of Appeal said that a court conducting a dangerous offender hearing has a “particularly onerous responsibility to measure the quality and strength of the expert evidence.” (R v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 at paragraph 186). In this case, there are very real concerns about the reliability of at least some aspects of Dr. Woodside’s evidence. He is the only proposed expert witness that will testify on this hearing, which means that I would be entirely dependent on him.
[72] The concerns about Dr. Woodside’s professional credibility bias weigh heavily on the prejudice side of the equation. Even if I were to prohibit the Crown from relying on the 2022/2023 assessment, the errors in those reports still have the potential to consume a great deal of court time and distract from the ultimate issue in the hearing. In order to challenge Dr. Woodside’s credibility and reliability as a witness, Mr. Nettleton may very well want to cross-examine him about the defects in those reports and his failure to pick up on them. Even if the parties agreed that Dr. Woodside’s evidence on the voir dire applies to the sentencing hearing, there may be additional cross-examination on the problems and submissions on how that impacts on the ultimate reliability and credibility of Dr. Woodside’s evidence. As noted, Dr. Woodside is the only expert either party expects to call. The Crown intends to call only a few additional witnesses to testify viva voce. In the context of this case, there is a real possibility that the shortcomings in Dr. Woodside’s evidence would become the focus of the sentencing hearing.
[73] In addition to the consumption of time, the evidence has the potential to cause prejudice given the difficulty Mr. Nettleton would have in cross-examining an expert witness who is so firmly entrenched in his opinions. It may also be challenging to critically assess Dr. Woodside’s evidence in light of the confusion caused by the various versions of his reports. These factors also weigh in favour of exclusion.
[74] Balancing the probative value of Dr. Woodside’s evidence against its prejudicial effect, I find that the benefits of it do not outweigh its costs.
Conclusion:
[75] For the foregoing reasons, I find that the expert opinion evidence of Dr. Woodside is not admissible.
Justice L. Bird
Released: June 6, 2023
[^1]: Transcript of Proceedings on May 29, 2023 at page 36, lines 12 - 15. [^2]: Transcript of Proceedings on May 29, 2023 at page 18, lines 27 to page 19, line 3, and page 21, lines 15 - 19. [^3]: Transcript of Proceedings on May 29, 2023 at page 76, lines 2-20. [^4]: Reversed on other grounds 2021 ONCA 261. [^5]: Testimony of Dr. Woodside on May 31, 2023. [^6]: Transcript of Proceedings on May 29, 2023 at page, 55 line 28 to page 56 line 2. [^7]: Transcript of Proceedings on May 29, 2023 at page, 48 lines 14 -16, [^8]: Transcript of Proceedings on May 29, 2023 at page 81, lines 13 – 19. [^9]: Transcript of Proceedings on May 29, 2023 at page 87, lines 5 – 15. [^10]: Transcript of Proceedings on May 29, 2023 at page 75, lines 5 – 13. [^11]: Transcript of Proceedings on May 29, 2023 at page 41, lines 1 – 5.