



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Natsis, 2018 ONCA 425

DATE: 20180507

DOCKET: C61328

van Rensburg, Pardu and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christy Natsis

Appellant

Marie Henein and Matthew Gourlay, for the appellant

Jamie Klukach and Luke Schwalm, for the respondent

Heard: November 14, 2017

On appeal from the conviction entered on May 29, 2015 by
    Justice Neil L. Kozloff of the Ontario Court of Justice, with admissibility
    ruling reasons reported at 2014 ONCJ 532 and reasons for judgment unreported.

Pardu J.A.:

[1]

The appellant was convicted of impaired driving
    causing death and dangerous driving causing death pursuant to ss. 255(3) and
    249(4) of the
Criminal Code
, R.S.C. 1985, c. C-46. The trial judge found
    that she crossed the
centre
line of a highway and
    crashed head on into an oncoming vehicle, killing the other driver, Bryan Casey.
    The appellant was sentenced to five years imprisonment.

[2]

The appellant appeals her conviction and submits
    the trial judge erred in two respects:

(a)

by admitting the expert opinion evidence of a
    police accident reconstruction officer who was unable or unwilling to provide
    the court with fair, objective, and non-partisan evidence; and

(b)

by refusing to exclude that expert evidence
    because the Crown failed to preserve and disclose the experts draft reports.

[3]

I would dismiss the
    appeal for the reasons that follow.

Factual background

[4]

The appellant was drinking alcohol at a bar at
    around 6:00 p.m. on the evening of March 31, 2011. She left the bar, got into
    her vehicle, and drove westbound along Highway 17.

[5]

The appellant crashed head on into the victims vehicle
    shortly before 8:00 p.m. on Highway 17. The victim was driving eastbound. Ontario
    Provincial Police (OPP) officers and traffic accident reconstruction experts
    were called to the scene.

[6]

Constable Kelly, an OPP officer, arrived on the
    scene at 11:51 p.m. on March 31, 2011. He was a Level III Technical Collision
    Investigator. He examined the scene by making observations and taking
    measurements. He also supervised another officer, McNish, who took photographs.
    Notably, Kelly observed a deep gouge in the eastbound lane that was closer to
    the shoulder than the centre line. Kelly noted that the debris field was more
    concentrated in the eastbound rather than the westbound lane.

[7]

Kelly re-examined both vehicles after they were
    towed away from the scene. At that time, Kelly noticed that the undercarriage
    of the victims vehicle was significantly damaged and bent while the
    appellants car did not suffer similar damage. Kelly came to the conclusion
    that the victims vehicle caused the gouge in the road and that the location of
    the gouge indicated where the collision occurred. Kelly testified that in his
    opinion the appellants vehicle crossed the centre line and crashed head on
    into the victims vehicle; the appellants position at trial was that the victim
    crossed into her lane and caused the accident.

Should the expert opinion evidence have been excluded because
    of bias?

[8]

The appellant submits that the trial judge erred
    in admitting Kellys expert opinion evidence. The appellant submits that Kellys
    evidence was so tainted by bias that his evidence should have been excluded.

[9]

The Supreme Courts decision in
White
    Burgess Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182
is the
    governing authority dealing with the effect of bias on the treatment of expert
    evidence
.

Although the
    admissibility decision in this case preceded
White Burgess
, the trial
    judge nevertheless applied the same test, based on Professor Pacioccos work (as
    he then was), that was later adopted by the Supreme Court in
White Burgess
.

[10]

It is common ground that the trial judge
    articulated the correct test; the appellant submits that he erred in applying
    that test.

[11]

I extract the following principles concerning
    the admissibility of expert evidence from
White Burgess
, at paras. 46-54:

(a)

Expert witnesses have a duty to assist the court
    that overrides their obligation to the party calling them. If the witness is
    unable or unwilling to fulfill that duty, their evidence should be excluded.

(b)

An experts attestation or testimony recognizing
    and accepting their duty to the court will generally suffice to meet the
    threshold for admissibility as it relates to bias.

(c)

The burden rests on the party opposing the admission
    of the evidence to show that there is a realistic concern that the experts
    evidence should not be received because the expert is unable or unwilling to
    comply with their duty to the court.

(d)

If the opposing party establishes that there is a
    realistic concern, then the party proposing to call the evidence must establish
    that the expert is able and willing to comply with their duty to the court on a
    balance of probabilities. If this is not done the evidence, or those parts of
    it that are tainted by a lack of independence or impartiality should be
    excluded.

(e)

Even if the evidence satisfies the threshold
    admissibility inquiry, any concern about the experts impartiality and
    independence is still a relevant factor in weighing the
R. v.

Mohan
,
    [1994] 2 S.C.R. 9 factors for admissibility  such as relevance, necessity,
    reliability, and absence of bias. Bias remains a factor to be considered in
    determining whether the potential helpfulness of the evidence is outweighed by
    the risk of the dangers associated with that expert evidence.

(f)

Expert evidence will rarely be excluded for
    bias; anything less than clear unwillingness or inability to provide the court
    with fair, objective, and non-partisan evidence should not result in exclusion.
    Rather, bias must be taken into account in the overall weighing of the costs
    and benefits of receiving the evidence. Context is important. Both the extent
    of the experts alleged bias and the nature of the proposed evidence are
    relevant.

The trial judges decision

[12]

The Crown proffered Kelly as an expert in a
    number of areas related to accident reconstruction:

a.

Collision
    Investigation and Analysis, including


i.

Gouges, scrapes, and scratches on roads,


ii.

Motor Vehicle Collision Debris Fields,


iii.

The Evaluation of Motor Vehicles involved in
    Collisions,


iv.

The Interpretation of Tire Marks at Collision
    Scenes,


v.

Speed Calculations and Distance Calculations,


vi.

Co-Efficient of Friction Measurement Using the
    Vericom VC-3000 accelerometer, and


vii.

Measurement of Collision Scenes, including the use
    of levels and the Sokkia SRX5 Total Station;

b.

The Interpretation of Airbag Control Module Data, alternatively
    known as Restraint Control Module Data or Event Data Recorders; and

c.

Perception Reaction time.

[13]

The trial judge restricted the scope of Kellys opinion
    evidence, at paras. 195-96 of his admissibility reasons, to analyses and
    opinions based directly upon his personal observations, calculations and
    measurements as documented by his field notes and in the photographs taken by
    him or at his direction. The trial judge stated, specifically, I will admit
    portions of his collision investigation and analysis, namely the
    identification, location, and significance of gouges, scrapes, and scratches on
    roads, the identification, location, and significance of motor vehicle
    collision debris fields, and the evaluation of motor vehicles involved in collisions.
    He also allowed Kelly to testify about speed calculations, though that evidence
    was largely redundant because of information downloaded from the vehicles data
    recording systems.

[14]

The trial judge concluded that there was a
    realistic concern that Kelly was biased, but he was not satisfied that it was
    probable that Kelly would be unable to present independently and impartially,
    those portions of his expert testimony that otherwise satisfied the
Mohan
prerequisites.

Analysis

[15]

On appeal, the appellant reiterates the arguments made to the
    trial judge. The appellant argues that Kellys evidence was so tainted by bias
    that it ought to have been excluded.

[16]

I begin with the observation that, absent an
    error in principle or an unreasonable ruling, a trial judges decision as to
    the admissibility of expert evidence is entitled to deference:
R. v. Shafia
,
    2016 ONCA 812, 341 C.C.C. (3d) 354, at paras. 230 and 234; and
R. v.
    McManus
, 2017 ONCA 188, at para. 68.

[17]

The trial judge dealt with all 29 aspects of
    Kellys conduct alleged by the appellant to show Kellys bias. Summarized, the
    appellant submits that Kelly saw himself, to some extent, as part of the
    investigative team rather than an independent expert. He selectively omitted from
    his report evidence that was favourable to the appellant, such as statements by
    a witness that she did not think the appellant was drunk and the appellants
    statement at the accident scene that the victims vehicle crossed into her
    lane. Kelly also proposed to testify about vehicle electronic data records  a
    field outside his areas of expertise. Finally, Kelly concluded very quickly
    after arriving at the accident scene that the appellants vehicle had crossed
    the centre line and hit the victims vehicle head on.

[18]

The trial judge made the following observations
    about Kellys evidence at paras. 181-83 of his admissibility reasons:

With that said, the evidentiary record as a
    whole suggests that Kelly (a) was unaware of, (b) did not fully appreciate, or
    (c) at worst, was prepared to contravene one of the fundamental requirements of
    an expert witness, namely that he be independent, unbiased and impartial.

I do not believe or even suspect that Kelly
    did so out of any malice. Kelly testified that he
believed
he was independent, impartial and unbiased, and I have no reason to
    disbelieve him. He simply did not know any better.

The evidentiary
    record also suggests that Kelly (a) was unaware of, (b) did not fully
    appreciate, or (c) at worst, was prepared to contravene (another) one of the
    fundamental requirements of an expert witness, namely that the expert must be
    qualified to offer an opinion and must possess special knowledge and
    experience in relation to the matters in issue.

[Emphasis in original.]

[19]

The principles underlying the traffic accident
    reconstruction evidence admitted in this case do not amount to novel scientific
    evidence. There was no challenge to the following principles:

(a)

When two vehicles collide head on, the
    undercarriages are forced downward into the road surface, causing scrapes and
    gouges in the road at the point of impact.

(b)

The gouges tend to be deepest at the point of
    impact

(c)

When two vehicles collide, debris from the
    vehicles will be compressed between them. As the vehicles separate a large part
    of the debris will fall at the area where the vehicles separate.

(d)

Damage to the undercarriage of a vehicle can
    indicate which vehicle caused the gouge to the road surface.

[20]

Kellys observations and measurements, and the
    photographs taken at the accident scene, were admissible as factual
    observations whether or not his opinion evidence about the conclusions he drew
    from those observations was admitted.

[21]

There was a deep gouge in the eastbound lane.
    This gouge was closer to the shoulder than the centre line and was caused by
    one of the vehicles involved in the accident. There was significant damage to
    the undercarriage of the victims vehicle but no such similar damage to the
    undercarriage of the appellants vehicle. Kelly therefore concluded that the
    deep gouge was caused by the victims vehicle when it was struck in the
    eastbound lane. Moreover, the debris field cast by the accident was substantially
    in the eastbound lane.

[22]

Despite his many criticisms of Kelly, and his
    conclusion that there was a realistic concern that Kelly might be biased, the
    trial judge concluded that Kelly was able to give his evidence, as
    circumscribed by the trial judge, impartially. The trial judge ultimately held,
    at para. 431 of his reasons for judgment, that Kellys conclusion that the
    accident occurred in the eastbound lane was both logical and evidence-based and
    that he could rely on Kellys evidence which was based on the location of the deep
    gouge, scrapes on the road, and the location of the debris field.

[23]

Here, the trial judge considered the factors that
    suggested bias four times in his analysis: at the threshold bias inquiry; at the
    bias inquiry; at the
Mohan
admissibility inquiry; and also when
    considering the weight to be given to Kellys evidence.

[24]

I see no basis to interfere with the trial judges conclusions
    regarding the admissibility of Kellys evidence. I agree that the degree of
    subjectivity associated with an experts opinion is a relevant factor in
    assessing whether conduct suggesting bias leads to the conclusion that the
    expert will not be able to give evidence independently and impartially.

Should the expert opinion evidence have been
    excluded because the Crown did not keep or disclose draft reports?

[25]

The appellant argued before the trial judge that
    the Crown had failed to
honour
its disclosure
    obligations by failing to maintain and disclose all draft reports, inclusive
    of all additions, deletions, changes, edits, corrections and the documentation
    surrounding them.

[26]

The trial judge rejected the proposition that
    draft reports had to be disclosed at paras. 212-217 and 219-221:

Every change made to an expert
    report while it is a work in progress effectively creates a new draft.
    Hypothetically, a TTCI or Collision Reconstructionist could prepare numerous
    drafts  making all kinds of additions, deletions, edits, corrections and other
    material changes  before submitting a final draft to the peer reviewer.

He may well consult with colleagues in order to develop,
    confirm, or enhance the opinion(s) contained in the draft. As long as he is
    otherwise qualified to offer an opinion and possesses special knowledge and
    experience in relation to the mater in issue, any opinion he does express is
    admissible (subject to the other
Mohan
prerequisites) as his own.

The TTCI or Collision Reconstructionist might then
    prepare numerous drafts  making all kinds of additions, deletions, edits,
    corrections, and other material changes  following receipt of the draft report
    back from the peer reviewer and before submission of his final report to the
    Crown.

Taking the defence position to its logical
    conclusion, the proposed Crown expert would be required to maintain each and
    every one of the drafts that were prepared along the way to the final version
    and turn them over to the Crown for disclosure to the defence. I do not believe
    that is either a sensible or necessary requirement.

That is not, however, the end of the story.

A related question to be addressed is whether a draft
    report prepared by a police officer and submitted to a fellow officer for
    review constitutes relevant evidence.



Even if there is no obligation on the Crown to
    preserve draft reports  or, putting it more narrowly, even if there is no
    obligation on police witnesses expecting to be proffered as expert witnesses to
    (a) preserve all drafts of their reports prepared prior to, and as submitted
    for, peer review, and, as received back with comments (if any) following peer
    review, and, as changed following peer review and before completion of the
    final report; and (b) to turn over all of the drafts referred to above to the
    Crown for disclosure to the defence  the unavailability of the draft report
    prepared and submitted by Kelly to Kern does have negative consequences for the
    Crown. It complicates the Crowns task of satisfying its burden of establishing
    that Kelly is qualified to offer expert opinion evidence because he possesses
    special knowledge and experience in relation to the matters in issue.

In that sense, the draft report submitted by Kelly to
    Kern for peer review  had it been preserved and disclosed  would have been
    relevant evidence in relation to the [fourth]
Mohan
prerequisite.

As noted above, its unavailability is
    one of the reasons why I have excluded significant portions of Kellys
    evidence.

[27]

On appeal, the alleged breach of disclosure
    obligations is narrowed to the failure to produce the final version of Kellys
    report submitted to a more senior officer, Kern, for peer review.

[28]

I agree with the observations of the trial judge
    at para. 220 that had it been preserved and disclosed  [it] would have been
    relevant evidence.

[29]

This document was relevant for two reasons. First,
    it concluded with a finding that the appellant was on her own side of the road
    at the time of the accident. Second, the number of errors in the report cast doubt
    on the authors competence, and the failure of a more senior accident
    investigator to catch the errors cast doubt on his competence.

[30]

The Supreme Court
    of Canada in
R. v. Stinchcombe
, [1991] 3 S.C.R. 326, explicitly contemplates, at para. 18, that
    the Crown will have to disclose material that it cannot put into evidence
    itself, but that the defence may use in cross examination. As noted further in
Stinchcombe
,
    at pp. 345-346, [i]f the information is of some use then it is relevant and
    the determination as to whether it is sufficiently useful to put into evidence
    should be made by the defence and not by the prosecutor.

[31]

Given its relevance, the Crown should have
    disclosed Kellys final version of his report submitted for peer review. This
    document constituted fruits of the investigation in the hands of police: see
R.
    v. Jackson
, 2015 ONCA 832, 128 O.R. (3d) 161, leave to appeal refused,
    [2016] S.C.C.A. No. 38, at paras. 79-82.

[32]

The Crowns failure to disclose the document
    violated the appellants s. 7
Charter
rights. I am not satisfied,
    however, that this could possibly affect the reliability of the resulting
    decision or the fairness of the trial process. In
R. v. Dixon
, [1998]
    1 S.C.R. 244, the Supreme Court noted, at para. 23:

The right to disclosure of all relevant material has a broad
    scope and includes material which may have only marginal value to the ultimate
    issues at trial. It follows that the Crown may fail to disclose information
    which meets the
Stinchcombe
threshold, but which could not possibly
    affect the reliability of the result reached or the overall fairness of the
    trial process. In those circumstances there would be no basis for granting the
    remedy of a new trial under s. 24(1) of the
Charter
, since no harm has
    been suffered by the accused.

[33]

More recently, Juriansz J.A. described the
    consequences of a failure to make disclosure in
R. v. Tossounian
, 2017
    ONCA 618, 354 C.C.C. (3d) 365, at para. 15:

The appellant has the constitutional right to disclosure of all
    material that could reasonably be of use in making full answer and defence of
    the case against her as guaranteed by s. 7 of the
Canadian Charter of
    Rights and Freedoms
. At this stage, in order to be entitled to a remedy
    under s. 24(1) of the
Charter
, the appellant bears the onus of
    establishing two things. First, she must establish on a balance of probability
    that the Crown breached its obligation to make proper disclosure. Second, if
    she does so, she must go on to establish that the Crown's failure to disclose
    impaired her right to make full answer and defence:
R. v. Dixon
,
    [1998] 1 S.C.R. 244, at para 31.

[34]

Here, both Kelly and Kern testified that Kern
    made no substantive changes to Kellys report. Documentation completed by Kern
    at the time of the review confirmed that he only made grammar, verb tense, and
    formatting changes. Kern does not appear to have undertaken an in-depth review
    of Kellys report. For example, Kern missed Kellys misstatement of his final conclusion
    when Kelly said the appellant was in her own lane at the time of the collision.

[35]

Defence counsels meticulous and exhaustive
    cross examination revealed all the weaknesses in Kellys and Kerns evidence.
    The appellant suffered no harm from the failure to disclose Kellys final
    report submitted for peer review. The trial judges limitation of the scope of
    Kellys admissible expert evidence out of concern for his competence was
    sufficient to address any violation of the appellants right to disclosure of
    that report.
The appropriate focus in most cases of
    late or insufficient disclosure under s. 24(1) is the remediation of prejudice
    to the accused and the safeguarding of the integrity of the justice system:
R. v. Bjelland
, 2009 SCC 38, [2009] 2
    S.C.R. 651, at para. 26.

[36]

I am not satisfied that the failure to disclose
    impaired the right to make full answer and defence:
Stinchcombe,
at
    p. 348. No further remedy is appropriate or just pursuant to s. 24(1) of the
Charter
.

[37]

Accordingly, I would dismiss the appeal.

G.
    Pardu J.A.

I
    agree K. van Rensburg J.A.

I
    agree B.W. Miller J.A.

Released: May 07, 2018


