The Defence Toolkit – May 2, 2020

This week’s top three summaries: R v Paul, 2020 ONCA 259, R v Forner, 2020 BCCA 103, and R v Patterson, 2020 NSSC 151.

R v Paul (ONCA)

[April 17, 2020] Self Defence - Air of Reality Test and Reasonableness of Response - 2020 ONCA 259 [Reasons by Harvison Young J.A. with Roberts, and Paciocco JJ.A. concurring]

AUTHOR’S NOTE: Trial justices presiding over jury trials occasionally and erroneously step into the finder of fact role.  Here, the trial judge's error was rooted in her mistaken application of credibility findings to the accused's version of events her ruling on the air of reality on the self defence claim.  The threshold for allowing self-defence to go to the jury is met by any evidence upon which a jury could conclude self-defence occurred having regard to the elements of that defence. The trial justice's assessment of the credibility of the accused's account has no role in the gate keeper function at a jury trial. Here, having conducted its own analysis, the ONCA confirmed that a jury could acquit where the accused chased a man and struck him with a machete during the chase because they could view this act as part of a series of actions which involved the allegation by the accused that the alleged victim had chased him with the machete first. 

Pertinent Facts

[1] The appellant, Tola Paul (“Paul”), was convicted of aggravated assault, and possession of a weapon for a dangerous purpose. He was also found guilty of assault with a weapon, but that charge was stayed to avoid double jeopardy. These charges were laid after Paul hit Paul Campbell (“Tall P”) in the hand with a machete. There is surveillance video footage of the events immediately prior to and following the strike, which occurred outside a strip mall bar. Paul appeals from his convictions on the basis that the trial judge erred in refusing to put the defences of self-defence and defence of others to the jury. The trial judge held that there was no air of reality to these defences, specifically because she found that the jury could not reasonably conclude that the act was reasonable in the circumstances.

[18] After conducting a thorough review of the evidence adduced at trial, including the video surveillance footage, the trial judge set out the relevant evidence. Notably, she made a number of factual conclusions including that: (1) at the point where Tall P was on the cell phone, there were no indications of aggressive movements towards the appellant or towards anyone; (2) the fight between Tall P and the appellant at the SUV was “almost consensual”; and (3) following this fight, when the appellant chased Tall P north towards Africa House, “the threat was over.”

[19] The trial judge concluded that the appellant’s conduct was not objectively reasonable in the circumstances. In her view, the appellant had “no reason” to hit Tall P with the machete. The appellant was chasing Tall P, who was trying to escape, and who did not engage the appellant.

[20] Though cognizant that the threshold at this stage of the analysis is low, given these conclusions, the trial judge ruled that there was no air of reality to the defences of self-defence or to the defence of others and dismissed the application.

Air of Reality and Self Defence

[22] A defence should be put to the jury if, and only if, there is an air of reality to that defence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 51. A trial judge’s failure to put a defence to the jury for which there is an air of reality is therefore an error of law.

[23] A defence has an air of reality if, and only if, a properly instructed jury, acting reasonably, could acquit the accused on the basis of the defence: Cinous, at para. 92. This inquiry requires a consideration of the totality of the evidence, assuming the evidence relied upon by the accused to be true: Cinous, at para. 53.

[25] The ruling below turned on the third criterion, the reasonableness of the act. This criterion is evaluated in reference to a non-exhaustive list of factors at s. 34(2), with the trier of fact having wide discretion to determine how such factors are to be weighed and assessed: Khill, at paras. 62-63. In making this assessment, the trier of fact must be mindful that people using defensive force in stressful and dangerous situations are not expected to weigh their responses to a nicety: R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 7; R. v. R.S., 2019 ONCA 832, at para. 36.

[28] Reviewing a trial judge’s proper role in this exercise can assist in navigating this complexity. In some instances, there will be evidence that, if believed, would establish an element of a defence: Cinous, at para. 88. For example, an accused may testify and give direct evidence as to the existence of a subjective element of a defence. The trial judge, when faced with this direct evidence, must then find that there is an air of reality to that element. Since the trial judge must attribute an air of reality to an element supported by direct evidence in the record, we logically do not owe deference to this determination.

[29] In other cases, there will be no direct evidence going to a particular element. I note, for example, there can be no direct evidence as to the reasonableness of the act in self-defence: Cinous, at para. 89. In this case, the trial judge must engage in a “limited weighing” of the evidence to determine whether the element can be “reasonably inferred”: Cinous, at para. 91. In so doing, she must not draw determinative factual inferences, nor make credibility assessments: R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 22. The limited weighing is only for the relatively narrow purpose of deciding whether there is evidence upon which the trier of fact could reasonably conclude that the element has not been disproved beyond a reasonable doubt.

[31] In any event, in this case, as in Land, the trial judge’s errors obviate the need for any deference: at para. 71. 

The Trial Judge's Error

[33] After reviewing the evidence adduced at trial, instead of determining whether a reasonable trier of fact could accept either of the defences, the trial judge undertook her own assessment of the events. For example, she concluded that the altercation between Tall P and the appellant by the SUV was “almost consensual.” She also concluded that at the time Tall P began to run away from the appellant, “the threat was over”, and found further that the appellant “had no reason to use a machete to ‘chop’ Tall P.”

[34] The first of these conclusions contradicted the appellant’s version of events. It was the appellant’s evidence that he was sitting in the SUV when Tall P ran at him holding a machete and knife. According to the appellant, Tall P swung his weapons at him before he picked up a sledgehammer to defend himself. The appellant’s evidence was that when he chased Tall P, he was afraid because two people had attacked him, and he did not know if someone else was behind him. The appellant did not describe a “consensual” fight. Given that the trial judge’s finding that the fight was “almost consensual” is contradicted by the appellant’s evidence, the trial judge must necessarily have considered the appellant’s credibility, which she was not permitted to do. This finding cannot be found to have been reasonable: Pappas, at para. 53.

[35] Further, there is evidence inconsistent with the trial judge’s finding that the threat was over at this point. Events happened quickly. Tall P had pursued Paul to his car and attacked him with weapons. Gatto had just been stabbed. There was evidence that Tall P still had a knife in his hand as he ran north after dropping the machete. There was evidence that Tall P had asked others to come and link him, in other words, to back him up, and there were a number of people moving about at the time. Video surveillance evidence shows that the appellant was followed when he ran after Tall P. By finding that the “threat was over” in the face of evidence that it was not, the trial judge exceeded her gatekeeping role.

[36] The trial judge’s findings may have been findings which a trier of fact could have arrived at on this record. But this was not the trial judge’s task on the self-defence application: Cinous, at para. 54. These conclusions indicate that the trial judge did not restrict her role to that of limited weighing. This gives rise to the danger that her conclusion was based on these findings of fact, rather than an evidentiary assessment. Usurping the fact-finding function in this way is an error of law: Budhoo, at para. 49.

[38] Given that the trial judge erred in her application of the test, no deference is owed to the decision below. I must now consider whether there is an air of reality to self-defence and defence of others on this record.

ONCA Assessment of the Air of Reality Here

[39] I conclude that there is an air of reality to the defences of self-defence and defence of others in relation to the machete chop of Tall P. As the foregoing discussion reveals, there is evidence on which a jury could reasonably find that each of the three criteria of self-defence and defence of others were not disproven beyond a reasonable doubt.

[40] On the first criterion, a jury could reasonably conclude that the accused believed on reasonable grounds that force or threat of force was being used against him or someone else. The appellant’s evidence was that as he approached Tall P at the door to Africa House, Tall P turned around to face him, holding a knife. Further, while the subject act is the machete strike that occurred at the entrance to Africa House, I note that it would be open to the jury to find that this was one among a longer chain of violent events that occurred between Tall P, the appellant, and others. The jury could reasonably have considered this broader context. In particular, it was the appellant’s evidence that Tall P had threatened to stab him, and that Tall P attacked him with a machete as he was sitting in the SUV after hearing Gatto say that he had been stabbed.

[41] On the second criterion, there is no real dispute that a jury could reasonably conclude that the subjective purpose of the act was for the appellant to protect himself or others. The appellant gave direct evidence to this effect. He testified that he heard Gatto yell that he had been stabbed just before Tall P approached him with the machete. He also testified that he was scared that there was someone else behind him as he was running after Tall P. He said that when Tall P turned around at the door of Africa House he was scared that Tall P would “rush” him with a knife. There is accordingly direct evidence which, if accepted, would establish this criterion.

[42]      The third criterion concerns the reasonableness of the act. As with the first criterion, I am mindful that there is evidence that the subject act occurred as part of a series of altercations between the appellant, Tall P, and others. I am also mindful that in assessing the objective reasonableness of the appellant’s conduct the jury must not weigh his response to a nicety: Cunha, at para. 7. Further, s. 34(2) of the Criminal Code makes clear that this is an inherently contextual exercise: Khill, at para. 60.

[43] It may be open to the jury to conclude, as the trial judge did, that the altercation between Tall P and the appellant at the SUV was “almost consensual”. However, it would also be open to the jury to conclude, based on the appellant’s evidence, that Tall P was the aggressor in this altercation. Similarly, the jury could conclude that, after the appellant picked up the machete and Tall P started running away, the threat was over, as the trial judge would have found. Yet, the jury could also conclude that the threat was not over, but that the appellant and his friends continued to be in danger such that his subsequent actions were reasonable in the circumstances. Without commenting on the likelihood that a jury would reach this conclusion, it is a conclusion that would be open to the jury on this record.

[44] Thus, the jury could reasonably have acquitted the appellant of all charges in reliance on the defences of self-defence and defence of others. The defences should have been put to the jury.

R v Forner (BCCA) 

[April 7, 2020] Sentencing: Mental Health Mitigation and Banishment as an Option - 2020 BCCA 103 [Reasons by Mr. Justice Grauer with Dickson, and Abrioux JJ.A.  concurring]

AUTHOR’S NOTE: When mental health mixes with criminal law it can push one of two buttons for the Courts in sentencing.  One is mitigating: it lessens the degree of moral blameworthiness of the actions of the offender.  The second is decidedly not mitigating: it increases the dangerousness of the offender because their behaviour stems of something they cannot control through logic and have failed to do so in the past. Here, the BCCA reinforces that it is an error to treat mental health concerns of an offender as an aggravation of an offence.  These concerns must be given meaningful reflection in the sentence imposed.

Also, the infrequently used sentence of banishment is discussed in detail.  Some guidelines as to where it could work and where it wouldn't are outlined. 

Pertinent Facts

[1] This is a sentence appeal. The appellant, Sharon Forner, pleaded guilty to one count of breaking and entering into a dwelling house to commit the indictable offence of assault with a weapon, contrary to section 348.1(b) of the Criminal Code. Given the bizarre circumstances of the offence, the sentencing judge ordered the production of presentence reports with psychological and psychiatric components.

[2] What had happened was this. On August 8, 2018, the appellant, visibly intoxicated, and wearing a long dark wig and dish gloves, knocked at the door of the house of Katherine Rinas in Osoyoos, BC. Ms. Rinas was at home with her fouryear-old daughter and newborn baby, and answered the door. The appellant asked to see the baby. Ms. Rinas shut the door on her. The appellant then re-opened the door and entered the home, wielding a large butcher knife over her head. She did not get very far. Showing considerable fortitude, Ms. Rinas grabbed the appellant, pushed her out the door, and called 911. The police tracked the appellant down quite quickly.

[3] The judge imposed sentence as follows (2019 BCPC 208 at para 36):

The sentence I would have imposed would have been 1,226 days [three years, four months and 11 days]. You have been in custody for 330 days. With enhanced credit, that is 495 days. The actual sentence is 731 days. Because 2020 is a leap year, this is a two-year sentence which means your sentence will be served in a federal penitentiary for women, but it also allows me to impose a probation order and I am going to impose the maximum period of probation of three years.

[4] The probation order included a term that the appellant must not be within a 50-kilometre radius of Osoyoos, BC, except with the written permission of her probation officer.

[8] For the reasons that follow, I would allow the appeal. I would reduce the custodial sentence to 20 months less credit for time served, and I would remove the banishment clause from the terms of the three-year probation. I would not otherwise interfere with the terms of probation.

Circumstances of the Offender

[12] It is noteworthy that, at the time of the offence, Ms. Forner had a 16-year history of alcohol abuse, and was drinking 12 to 15 drinks daily in combination with prescribed psychiatric medication. She expressed what was considered to be significant and genuine remorse about the offence, but said that she had no memory of it, and could not explain it.

[15] The appellant has suffered from depression most of her life, but was not diagnosed until 2007. She was hospitalized in March 2009 for “suicidal thoughts and depression without an active plan”, and August 2009 after having consumed “a handful of prescribed medication”. Diagnoses at that time included Depressive Disorder NOS, Alcohol Dependence, and Polysubstance Abuse. The appellant attended at BC Mental Health & Substance Use Services as an outpatient but file information indicated multiple appointment no-shows, as well as attendance at appointments smelling of alcohol and/or cannabis.

[17] The parole officer, in her report, noted 11 previous convictions, comprised of one conviction for impaired driving, two convictions for theft under $5,000, and the remainder for failure to comply with court direction. The last of these was in relation to this offence. She had been released on a bail order in September 2018 to a recovery home in Surrey, BC. She reported consistently to her bail supervisor for three weeks, but was evicted from the recovery home in October for failing to comply with its rules. She was subsequently breached for this, and returned to custody. In the meantime, though being without a proper residence for approximately one week, she nevertheless maintained contact with her bail supervisor, did not consume alcohol, and kept her electronic monitoring equipment charged.

Review of a Sentence

[18] Appellate courts are obliged to give wide latitude to sentencing judges, who are in the best position to determine, having regard to the circumstances, a just and appropriate sentence: R v Lacasse, 2015 SCC 64.  Accordingly, appellate intervention is only warranted if the sentence is (a) demonstrably unfit, or (b) based on an error of law, error in principle, failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor that had an impact on the sentence.  Even if such an error is established, the court must then consider the fitness of the sentence by conducting its own sentencing analysis: Lacasse; R v Agin, 2018 BCCA 133 at para 56; R v Williams, 2019 BCCA 295 at para 44.

Review Here

[22] The sentencing judge discussed the appellant’s mental health issues both generally and under his list of mitigating factors:

[16] However, Ms. Forner's actions are sufficiently bizarre and out of character that both counsel in their submissions refer to mental illness as being a contributing factor, something beyond the severe alcohol abuse disorder recognized by the experts. Essentially they say, and I agree, people just do not do what Ms. Forner did because they are drunk. I accept that there may have been some type of mental health issue at play that was exacerbated by her consumption of alcohol and prescription medication.

[17] The troubling part is that we do not know specifically what that or those issues were, nor can we say that they have been addressed through treatment. In this regard, her mental health is both mitigating and aggravating.

[Emphasis added.]

[23] Then, at the end of his list of aggravating factors following para 17, the judge included these:

9. Criminal record. Ms. Forner has a criminal record, albeit a minor criminal record, but a record that demonstrates a serious struggle with being able to comply with court orders.

10. Consumption of alcohol and non-prescription drugs. Addiction can be essential in assessing the accused’s moral culpability, the likelihood of rehabilitation, and the risk of recidivism. Past failures to take advantage of treatment and counselling programs can be an aggravating factor.

[24] The judge went on to say:

[19] Ms. Forner has long known the negative effects of alcohol on her actions and her behaviours. She commented in the report that she would often ask people the next day whether she had anything to apologize for from her drinking the night before. She was also aware of the harmful effects of combining her medication with alcohol. She said it was like pouring gasoline on fire. Because of her conscious decision not to deal with her alcoholism, Ms. Forner must accept a high degree of responsibility for her actions that were influenced by her consumption of alcohol.

[22] Ms. Forner's consumption of alcohol and prescription drugs was highly reckless and irresponsible and endangered the welfare of Ms. Rinas and her children and is an aggravating factor.

[Emphasis added.]

[25] The question here is whether, in the highly unusual circumstances of this case, the judge erred in principle by considering the appellant’s mental health to be an aggravating factor as well as a mitigating factor, and by focusing on her consumption of alcohol as a significant aggravating factor. In my view, he did so err.

[26] The impact of mental health and addiction issues on moral culpability is a complicated question.  This Court provided helpful guidance in R v Badhesa, 2019 BCCA 70, a decision that appears not to have been brought to the sentencing judge’s attention.  There, as here, the Court had to consider the relevance of self-induced intoxication in circumstances where the offender’s mental illness (depression) contributed to his or her excessive consumption of alcohol.

[27] In Badhesa, this Court observed that self-induced intoxication that leads to violence is typically “the product of intentional risk-taking, which conduct is itself dangerous, irresponsible and blameworthy” (at para 39).  That is what the sentencing judge found here.  The Court went on to note at para 40, however, that

an offender’s volitional and decision-making capacity in connection with self-induced intoxication and related violence may stem, at least in part, from mental illness or other cognitive disability. Depending on the circumstances, both the mental illness and related self-induced intoxication may reduce the offender’s moral culpability.

[28] Thus, in Badhesa, this Court recognized that mental illness in the form of depression may reduce moral culpability where it indirectly contributed to the commission of the offence.  This is in contrast to the statement by the sentencing judge under para 17 that “the offender must show a causal link between the illness and the criminal conduct”.  If the judge was referring to a direct causal link, I am respectfully of the view that he erred.  The link here is indirect but real: depression contributing to alcohol abuse and addiction, together contributing to the offence.  In para 16 of his reasons, the judge recognized that a mental health issue was at play “that was exacerbated by her consumption of alcohol and prescription medication”, without considering the causal link between them.

[29] In Badhesa, this Court noted:

[42] When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and a sentence may be reduced because the offender’s moral culpability is attenuated. In these circumstances, general deterrence is a less weighty consideration because a mentally ill offender is not an appropriate medium for making an example to others: R. v. Belcourt, 2010 ABCA 319 at para. 8. Nor does specific deterrence or severe punishment play a significant role in the determination of a fit sentence. The former is meaningless when an offender is out of touch with reality and the latter may be disproportionate to the offender’s degree of responsibility: R. v. Batisse, 2009 ONCA 114 at para. 38.[Emphasis added.]

[30] It follows that the error that the Court found in Badhesa is, in my view, the error the judge made here: in assessing the appellant’s moral culpability, he failed to consider the extent to which her mental illness (depression) contributed to her excessive consumption of alcohol, a 16-year-long relationship.  Instead, while accepting that the appellant’s mental health must have been a contributing factor in the offence, he treated it as both mitigating and aggravating, and then separately treated her consumption of alcohol as a significant aggravating factor, referring to her “conscious decision not to deal with her alcoholism.”  But the ‘consciousness’ of that decision diminishes to the extent that it was fuelled by her mental illness.

[39] The problem then becomes an evidentiary one.  As this Court recognized in Badhesa:

[43] Cases involving mental illness and intoxication in combination are, of course, intensely fact-driven. Detailed and specific medical evidence is essential to a proper understanding of their relationship in a particular case, if any, as well as their impact on the offender’s moral culpability. Generalizations are insufficient: [R. v. Friesen, 2016 MBCA 50] at para. 25. In our view, insofar as possible, taking into account all of the relevant evidence, a sentencing judge should strive to determine the extent to which an offender’s mental illness contributed to the offending conduct, including any contribution to his or her self-induced intoxication: R. v. Ellis, 2013 ONCA 739 at para. 116; Friesen at paras. 22–32.

[43] In my view, while the evidentiary record was less extensive than one might wish (one must bear in mind the resources available to the offender), when taken together with the positions of counsel, it clearly established, on a balance of probabilities, a nexus between the appellant’s long history of depression and her long history of alcohol addiction, and the contribution of both to her behaviour at the time of the offence. In these circumstances, I am satisfied that the judge erred in principle in treating the offender’s mental illness as both mitigating and aggravating, and in treating her addiction as a significantly aggravating factor. In doing so, he failed to grapple with the extent to which her moral culpability was diminished by the relationship between the mental illness and the alcohol abuse.

[44] I am also satisfied that this error in principle had an impact on the sentence imposed. But for the error, the weighing of mitigating factors and aggravating factors would of necessity have been different, and would have led to a different balancing of the paramount sentencing objectives employed by the sentencing judge. As it was, this balancing was based upon a higher level of moral culpability than principle permitted, given the evidence.

[50] Turning to the present case, again having regard to:

 the totality of sentencing objectives,

 an appropriate weighing of the offender’s moral culpability considering the role her mental illness and addiction played in the circumstances of the offence,

 her genuine remorse,

 her post-offence rehabilitation efforts,

 the lack of any record of violent behaviour, and

 the absence of physical injury,

I consider that a proportional sentence would be 20 months, or 605 days, reduced by 495 days being the enhanced credit for pre-sentence time served. The resulting net sentence is 110 days.

The Banishment Term

[52] In deciding to impose the term, the sentencing judge said this:

[24] If I do impose a probation order, the Crown has asked that I consider either banishing Ms. Forner from Osoyoos entirely or place an area restriction on her. Ms. Forner's current residence, as I indicated, is only 120 metres from Ms. Rinas' residence. Banishment conditions are rare. In most cases, it is fundamentally wrong to foist one community's problem onto another. However, such a condition will be fit if it is reasonable and desirable for protecting society and facilitating the reintegration of the offender into the community.

[53] The question is, having recognized that banishment terms are rare and, in most cases, “fundamentally wrong”, did the judge err by concluding that this case falls into the category of rare cases warranting such a term? In my view, he did.

[54] Probation conditions, which are authorized by section 732.1(3)(h) of the Criminal Code, are discretionary.  The discretion is undoubtedly very broad, but it is not unlimited.  In R v Shoker, 2006 SCC 44 at para 13, Charron J described the limits in this way:

R v Patterson (NSSC)

[April 22, 2020] – Expert Evidence - Obligation of Expert to the Court – 2020 NSSC 151 [Justice Jeffrey R. Hunt - Sitting in Summary Conviction Appeal]

AUTHOR’S NOTE: An expert witness must communicate to the Court their understanding that despite being hired by a party to the proceeding, their obligation is to provide unbiased evidence to the court. A failure to do so in this case resulted in an otherwise qualified toxicologist being not qualified to give evidence.  This finding was upheld on appeal. 

Overview

[1] This Summary Conviction Appeal is advanced by the Crown. The selfrepresented accused was acquitted of a breathalyzer driving offence when an omitted question, in an otherwise routine qualification voir dire, resulted in the Court’s refusal to qualify the proposed toxicology expert. Without the evidence of the expert, an acquittal followed as a matter of course.

[2] The omitted question pertained to whether the proposed expert witness recognized their overarching duty to be fair and unbiased in their evidence. The Supreme Court of Canada has mandated the consideration of this question when qualifying a proposed expert.

Pertinent Facts

[8] After midnight on the morning of Saturday, April 1, 2017, Cst. Pitts, of the New Glasgow Police Department, says he saw the accused experiencing balance issues while exiting his poorly parked vehicle. The officer remained within sight of the accused and witnessed the accused staggering towards a pizza establishment. He continued his observations. A short time later, Cst. Pitts saw the accused enter his vehicle and drive away. The officer activated his lights and pulled the vehicle over. Upon approach, Cst. Pitts found the Accused eating a slice of pizza. He says the initial food smells soon gave way to the odor of alcohol which he believed was coming from the Accused, the sole occupant of the vehicle.

[9] At 1:08 p.m., the Officer provided a demand for a roadside screen for alcohol.... Counsel of choice was difficult to locate, with many unsuccessful attempts being made. After finally speaking with Counsel, the Accused provided two breath samples in the INTOX EC/IR II, one at 0358 hours and one at 0419 hours. Both samples had the same result: 90 milligrams of alcohol in 100 millilitres of blood.

[12] Officers Pitts and Chisholm were called as witnesses and provided testimony relating to the events of April 1, 2017. Ms. Christine Frenette, an alcohol specialist with the National Forensic Laboratory Services in Ottawa, was the next witness for the prosecution. Her testimony was necessary to provide “extrapolation evidence” as the breath samples were taken outside the 2-hour presumptive period in the Criminal Code.

[22] In all respects, her demeanour and manner of giving evidence appeared to be a model of what would be expected from an expert advanced in these circumstances.

[25] In the Defence submission, the Defendant, who is a practicing barrister, immediately came to what would soon reveal itself as the truly contentious issue (Appeal Book, Vol 2, pg. 132- line 6):

Patterson: Yes, Your Honour. I guess my submission would be, Your Honour, it’s not what we heard from Ms. Frenette that might call into question whether she ought to be qualified, but what we didn’t hear. It’s my understanding that the witness should be able to inform the Court that they are prepared to give -- to be of assistance to the Court and to give an independent, impartial, non partisan opinion to the Court and that they are aware of that duty, that they understand it, and that they’re willing and able to carry it out, and that that should come from the witness as part of the Crown’s case on the qualification voir dire. And we didn’t hear any evidence on that or to that effect. And I think that goes to the quantification of the witness, and it goes to the gatekeeper function of the Court to be satisfied that the witness is prepared to discharge their duties in that fashion and, as I said, understands it, acknowledges it, and the Court is satisfied that they do and that they’re prepared to do that. We just haven’t heard that, so, I would suggest that the witness ought not be qualified, Your Honour.

[31] This brought the trial Judge to his concluding remarks on the voir dire (Appeal Book, Vol 2, pg. 140 line 11): ...

I simply find that there is not sufficient evidence before the Court that would allow the Court to draw an inference, based on what I’ve heard so far, that Mr. Frenette recognizes the obligation of giving to – of rendering to the Court independent and impartial evidence. She wasn’t asked whether she understood that role or duty. I know, for example, that in qualification voir dires, it’s not uncommon for witnesses to be asked about memberships in professional bodies and whether those professional bodies impose an obligation upon their membership to ensure that, if they are called upon to fulfill a forensic duty, that they recognize a professional responsibility to provide independent and impartial evidence – impartial advice to the Court.

So, applying the criteria in Mohan, particularly what I consider to be that foundational criterion that the witness understands the obligation to render to the Court independent and impartial advice, I am not satisfied, and therefore, the Court finds that the witness has not been properly qualified and the Court declines to qualify the witness in the proposed field.

The Principles

[44]         Cromwell, J, in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182 provided a reformulation and restatement of the rules pertaining to the admission of expert evidence, building on the earlier jurisprudence in R. v. Mohan,1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 and R. v. Abbey, 2009 ONCA 624.

[45] He clarified the two-stage approach, the first focused on threshold requirements of admissibility; the second stage relating to the trial Judge's discretionary gatekeeper role. Each stage has a specific set of criteria.

[46] The test has been summarized as follows:

(1) The proposed expert evidence meets the threshold requirements of admissibility, which are:

a. The evidence must be logically relevant;

b. The evidence must be necessary to assist the trier of fact;

c. It must not be subject to any other exclusionary rule;

d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the Court to provide evidence that is impartial, independent and unbiased:

e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose,

(2) The trial Judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:

a. Legal relevance,

b. Necessity,

c. Reliability, and

d. Absence of bias.

[47] In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded, the analysis goes no further.

[48] If it does meet the threshold requirements, the trial Judge then has a gatekeeper function. The trial Judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial Judge is so satisfied, then the expert evidence may be admitted; if the trial Judge is not so satisfied, the evidence is excluded even though it passed the threshold requirements.

[49] In the case under appeal, the analysis proceeded only as far as the threshold analysis, failing at the fourth element, which, as we shall review shortly, had been described by Cromwell J, as a not particularly onerous element of the test.

[50] Many elements of the multi-part test in White Burgess have been the subject of repeated analysis by trial and appeal Courts since the decision was rendered in 2015. The point on which this case turns has received relatively less attention and commentary. This makes sense given the Supreme Court’s own thoughts on the relatively low bar this particular component was assumed to represent.

[51] In addressing this point, Cromwell, J. wrote as follows:...

47 Imposing this additional threshold requirement is not intended to and should not result in trials becoming longer or more complex. As Prof. Paciocco aptly observed, "if inquiries about bias or partiality become routine during Mohan voir dires, trial testimony will become nothing more than an inefficient reprise of the admissibility hearing": "Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts" (2009), 34 Queen's L.J. 565 ("Jukebox"), at p. 597. While I would not go so far as to hold that the expert's independence and impartiality should be presumed absent challenge, my view is that absent such challenge, the expert's attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met.

49 This threshold requirement is not particularly onerous, and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. The trial Judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the Court…

[57] R. v. McManus makes clear (see para 72) that when a realistic concern is raised, even after an attestation of lack of bias by the witness, the onus returns to the moving party to rebut this concern on a balance of probabilities.  Failing this, the fourth Mohan element for admissibility, as expanded on in WBLI, will not be satisfied.

Principles Applied

[92] The trial Judge extensively reviewed the record and concluded the record did not allow him to draw the inference that the witness understood and accepted her duty to the Court. Earlier in this decision I have excerpted his reasons in this regard. They touch on each element of the test. He did weigh the prior instances of qualification. He was concerned about delegating his gatekeeping role to the prior Judges who had qualified the witness previously. This is not an unreasonable consideration. Every instance of qualification must stand on its own record.

[93] It is accurate that this record does contain evidence that could have allowed the trial Judge to draw the inference required to meet the minimal standard described by Justice Cromwell in WBLI.

[96] The proposed expert was objectively a highly experienced specialist who had been qualified on multiple occasions in the past and had never been rejected for qualification. However, as noted above, it would be a mistake to allow this factor to displace the gatekeeping role of the trial Judge.

[100] If the Court articulates and applies the correct test, then an exercise of discretion within the application of that test is not to be disturbed unless clearly unreasonable or contaminated by error in principle. I cannot conclude this is the case. The outcome reached by the trial Judge was not clearly unreasonable in the circumstances.

Conclusions

[101] The following is a summary of the Court’s conclusions:

1. A party seeking to qualify an expert witness must recognize that it is an error not to directly address the issue of whether the witness recognizes and accepts her duty to the Court to be independent, impartial and free of bias. The consideration of this factor in the voir dire is mandated by the Supreme Court of Canada and is as important as asking questions about the proposed expert’s past education or work history....

4. In all cases, however, the best practice is to address the issue directly in the qualification voir dire. This is what the Crown failed to do in this case.

5. Where the question is not asked directly in the voir dire, the party seeking to qualify the expert can still seek to have the trial Judge draw an inference from the evidence that is in the record. In such an instance, the party is at risk the trial Judge will conclude the record is deficient and does not support the necessary inference.

6. This was the case in the matter under appeal. The trial Judge properly articulated the test and reviewed the evidence. He concluded the record did not allow him to draw the necessary inference.

8. While there was evidence to support the necessary inference, this is not the end of the matter. A trial Judge’s conclusions with respect to the qualification of an expert witness is granted deference. If the Court articulates and applies the correct test, then an exercise of discretion within the application of that test is not to be disturbed unless clearly unreasonable or contaminated by error in principle.