Law Times

Law Times • February 8, 2016 Page 7 www.lawtimesnews.com COMMENT Disclosure methods for traffic cases need modernizing BY SHANE O'HERLIHY D o you defend traffic cases? Are you plan- ning to challenge a parking ticket? If you or your clients drive in the City of Toron- to, you may encounter serious inconven- ience. The City of Toronto has recently included language in its Notices of Trial encouraging defendants to seek information on its web site about how to obtain disclo- sure. The web site advises defendants to fill out a Dis- closure Request Form and then to fax or mail it to the appropriate City Prosecutors' Office. Rather ominously, however, the web site makes no reference to the numerous time-consuming steps a de- fendant must take. Acquiring full disclosure in provin- cial offence matters is frustrating and burdensome, es- pecially for poorer and unrepresented people. It repre- sents a gaping problem in the administration of justice in the City of Toronto today, especially when an easier and far less costly system exists. In most provincial offence matters, it is rare for the City Prosecutors' Office to provide full disclosure after the first request has been served. In my experience, one will usually only get the investigating police officer's notes the first time around. More disclosure requests must then be made seeking missing documents from the Crown. As the prosecution is not obliged under the Prov- incial Offences Act to send disclosure materials in the mail, defendants are obliged to collect disclosure — often on multiple occasions for the same case — either by attending the courthouse themselves or by paying their representatives extra money to do so. City pros- ecutors are also wont to say on trial day that it is custom to provide full disclosure only on the day of the trial it- self and to seek trial adjournments as a matter of course on account of a lack of preparedness. Prosecutors also show up to trial knowing the ma- jority of the cases on their docket for the day are lacking sufficient evidence to obtain conviction but also aware that the vast majority of the defendants showing up are either too ignorant or intimidated to do anything about it. Consequently, I argue that the traffic court system as it currently exists in Toronto represents a system- ized violation of all defendants' rights to full and fair disclosure guaranteed by our constitution, and articu- lated by the Supreme Court of Canada in R. v. Stinch- combe and R. v. Morin. As a result, most defendants in traffic court feel stymied by a system that they believe is rigged, causing them to lose hope, give up, and agree to plea deals. The solution to much of this mess is to make dis- closure available online. How difficult can that be? Most disclosure materials in traffic matters involve a combination of handwritten notes, printed police documents, and excerpts from manufacturers' manu- als that can all be easily scanned. Under such a system, Notices of Trial would contain a link to a government web site where accused traffic violators could create a secure and unique online account that would list their disclosure documents. In this account, the user could view and print all relevant disclosure materials in one convenient location. All relevant materials could be scanned and made available to a defendant within 60 days of the alleged traffic offence. A defendant would then have several months to review and consider his or her disclosure documents before trial, which usual- ly takes at least eight months after the offence date to schedule. Now more than ever, citizens are more comfortable handling their bureaucratic obligations and corres- ponding with the government online. For parking and minor moving violations under the Highway Traffic Act, the relevant documents will rarely exceed 10 pages. Instead of having to write and make pot- entially multiple and expensive trips to the court- house, a defendant would have his or her disclosure material readily available on his or her computer screen. If a defendant were to believe that his or her online dis- closure was not sufficient, the same traditional avenues would still exist to request any additional disclosure. More useful Charter motions could also be brought be- fore the first trial date, if the prosecution was found not to be providing adequate disclosure to the user's online account or otherwise. Defendants would not be obliged to opt into this system. More traditionally minded defendants could continue to seek disclosure via mail or fax. If there was improved disclosure, defendants attending traffic court — the majority of whom are unrepresented — would be better informed both of their options and their likely chances of success. There would be more faith in the justice system as a result and less of a need for spurious trial adjournments. Defendants would also be far less likely to be showing up to court blind and without any evidence, which they overwhelmingly do now. The City of Vaughan and other municipal jurisdic- tions in Ontario allow defendants to view disclosure materials for parking matters on a computer screen in the presence of a screening officer before the com- mencement of a subsequent formal dispute process with a hearing officer. As such, a similar system for reviewing disclosure online for minor traffic matters already exists in this province. It is time for the City of Toronto to get with the 21 st century, improve the administration of its traffic court system, save money, and at the same time create more respect for the constitutional rights of its citizens in the process. LT u Shane O'Herlihy practises civil litigation and pro- vincial offences law in Toronto. He can be reached at 416-824-5914 or soherlihy79@gmail.com. u SPEAKER'S CORNER Expert witnesses and access to justice T he recently reported decision of Bruff-Murphy v. Gunawardena, 2016 raises important issues concerning the use of civil jury trials and the role of partisan expert witnesses. The decision arises out of a typical per- sonal injury action. The defendant rear- ended the plaintiff 's vehicle. The plain- tiff complained of various injuries that caused "continuous severe pain." The action was held before a judge and jury. Of course, the defence served the jury notice. Insurers and defence counsel know that juries raise uncertainty and the prospect of a jury trial drives down the quantum of many settlements. It is all part of the game-playing that takes place in personal injury litigation. Following the judge's charge to the jury, defence counsel brought a threshold motion. Under Ontario law, non-pecuni- ary damages are not recoverable in motor vehicle personal injury litigation unless the injured person has died or has sus- tained serious disfigurement or perma- nent serious impairment of an important physical, mental, or psychological func- tion. Ontario Superior Court Justice Paul Kane dismissed the motion, conclud- ing the plaintiff 's impairments satisfied the threshold. That finding allowed the plaintiff to recover general damages for her substantial injuries. Yet the jury came back with a nominal award of $23,500 for general damages and dismissed all other claims. How is it that a plaintiff can be found to have suffered permanent serious impairment of an im- portant function and yet only receive a general damages award of $23,500? This plain- tiff is married, in her thirties, and has three children. She has a long life expectancy. The only reasonable ex- planation I can come up with after reading the judge's rea- sons on the threshold motion revolves around the expert evidence introduced by the defence. One of the defence's two expert wit- nesses was an orthopedic surgeon who testified there was no medical finding to indicate physical impairment, there must be a medical reason to explain pain, pain is a perception, and it is not evi- dence-based medicine. The trial judge rejected this evidence as not being of relevance. More importantly, he criticized the defence choice of a jury trial, stating, "Medical and legal thinking as ref lected in jurisprudence, has moved beyond a belief that 'unless you can see or feel an injury, there is no injury'. Such out- dated hypothesis however may be one of the reasons for the current popularity by defendants as in this case to select trial by jury in the hope the jury might accept this outdated argument." The second defence expert witness was more problematic. This witness, a psych- iatrist, testified that the plaintiff was fak- ing and shouldn't be believed. To put this evidence into perspective, this expert told the court he had conducted about 5,500 independent medical exams since 1989 at approximately $5,500 per assessment. All but "a few dozen" were conducted for defendants. He currently conducts an average of seven to 14 as- sessments for insurers or de- fendants per month. These assessments form a large part of the psychiatrist's practice. These facts alone should have served as a red f lag. In three previously reported cases, findings were made that this witness had "become an advocate for the party calling him," had taken a "partisan approach" or "presented as a notably par- tisan witness." Yet the court felt compelled to accept the witness as an expert and did not al- low the witness to be cross-examined on these prior judicial findings. The judge rejected this expert's evidence as being not credible for purposes of the threshold motion. In doing so, he stated, the witness "failed to honour his obligation and writ- ten undertaking to be fair, objective and non-partisan" and "[T]he vast majority of his report and testimony in chief is not of a psychiatric nature but was presented under the guise of expert medical testi- mony." It seems the defence witnesses had their desired effect on the jury. How else to explain the nominal jury award in a case where the trial judge concluded, "The evidence of the plaintiff as to her in- juries, level of symptoms and limitations are corroborated by her health care pro- viders including some of their testing for veracity. Such evidence is further corrob- orated by her husband and her friends. In such ways, the plaintiff 's credibility is strongly supported." Yes, this is but a single case of injustice. But we are left to speculate on how many deserving plaintiffs have entered into low settlements or suffered low awards due to the evidence of experts of the ilk trotted out by the defence in this case. Where do we go from here? I have two suggestions for considera- tion. First, let's reconsider the use of civil juries for personal injury litigation. Que- bec and the Federal Court of Canada have abolished civil jury trials. England has long since barred the use of juries for per- sonal injury cases. Some states and terri- tories in Australia no longer allow civil jury trials, while others allow civil jury trials but not for motor vehicle litigation. Second, we must do a better job of elim- inating partisan experts from participat- ing at any stage of personal injury cases. Efforts to do away with hired gun experts have failed. The trial judge in the case discussed above declared he would not qualify wit- nesses as experts in the future if they took a similar approach to that taken by the de- fence psychiatrist. That's of small comfort to the plaintiff, Ms. Bruff-McArthur. LT uAlan Shanoff was counsel to Sun Media Corp. for 16 years. He is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@ gmail.com. Social Justice Alan Shanoff

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