Law Times

Page 4 November 6, 2017 • Law Times www.lawtimesnews.com Legal fight after fatal crash involving dentist Alleged bias of police under scrutiny BY SHANNON KARI For Law Times T he Ontario Court of Appeal is being asked to clarify if any evidence by police officers who are testifying as experts can still be admitted if there is a finding the witness has a bias in favour of the prosecution. The issue will be before the court later this month in an ap- peal in a high-profile Ottawa case, where a dentist was sen- tenced to five years in prison af- ter being convicted of impaired driving causing death following a head-on collision in 2011. One of the central grounds in the appeal filed by Dr. Christy Natsis is a decision by the trial judge to admit certain aspects of the evidence of a police collision expert, despite a finding there was a "realistic concern" the wit- ness was biased. Lawyers for Natsis argue in written submissions filed with the Court of Appeal that the trial judge failed to properly ex- ercise his role as a "gatekeeper" and should not have admitted any of the police collision ex- pert's testimony. "A proposed expert who is unable or unwilling to provide "fair, objective and non-partisan assistance" to the court is not a properly qualified expert and should not testify at all," write Marie Henein and Matthew Gourlay of Henein Hutchison LLP, who are acting for Yatsis in the appeal, which is scheduled to be heard Nov. 14. The Supreme Court of Cana- da ruling in 2015 in White Bur gess, which came out after the decision on the expert evidence in Natsis, is cited by the appel- lant as support for its position on the police collision expert. The Supreme Court stated that a trial judge must first decide if a proposed expert's evidence is admissible before determining the weight it may be given. However, if an expert testifies to their independence, the bur- den will shift to the other side to show why the testimony should not be admitted. White Burgess was a com- mercial litigation proceeding although the principles related to expert evidence also apply to criminal cases. It calls for trial judges to take a "robust but bal- anced role" as gatekeepers when deciding whether to admit po- lice expert evidence, write He- nein and Gourlay. In response, the Crown is suggesting that the dentist's law- yers are proposing a different test for experts if they are police officers. "The appellant contends that an appearance of bias should disqualify a proposed police ex- pert from testifying without the necessity of further inquiry to determine whether the expert's ability to testify independently and impartially was actually tainted by bias," state Crown at- torneys Jamie Klukach and Luke Schwalm in written submissions filed with the court. "There is no principled ba- sis to distinguish police experts when applying the ratio of White Burgess," they add. Questions of bias, however, do arise in criminal cases for "institutional" witnesses such as police and others who normally testify for the Crown, suggests Toronto defence lawyer Mark Halfyard. "This is a legitimate problem. Where do we draw the line?" asks Halfyard, who specializes in criminal appeals and is a part- ner at Rusonik O'Connor Rob- bins Ross Gorham & Angelini LLP in Toronto. Drug prosecutions, impaired driving and street gang cases of- ten involve police witnesses tes- tifying as experts. Halfyard agrees that the fact an expert is a police officer does not necessarily show bias. "The closer they are, though, to the investigation before the court, the more likely their evi- dence might be excluded," he suggests. While it is going to be very fact-specific, there may also be grounds to try to have a police testimony excluded if it can be shown the officer is akin to a "professional witness" who comes to similar conclusions as an expert, regardless of the evi- dence in the case, notes Halfyard. The test for admitting expert evidence as set out by the Su- preme Court in White Burgess has been applied by the Court of Appeal in one other case. In a decision earlier this year, in R. v. McManus, it concluded that the trial judge should not have admitted the testimony of an investigating officer in a London, Ont. drug prosecution, who on his own initiative pro- duced an "expert" report related to text messages by the accused after the preliminary hearing. Justice Timothy Lipson re- cently cited White Burgess in declining to accept a retired On- tario Provincial Police officer as a computer expert witness earli- er this fall in the ongoing breach of trust prosecution of two aides to former premier Dalton Mc- Guinty. Lipson said he did not doubt the expertise of the retired offi- cer but that he was too close to the investigative team to fulfil the duty of an impartial expert. Jonathan Rosenthal, a To- ronto defence lawyer, says that, for police or other expert wit- nesses who normally testify for the Crown, there is the issue of unconscious bias, something that was noted by Lipson in his ruling. "For an expert witness to be truly independent, they cannot have any skin in the game," says Rosenthal, whose practice fo- cuses on impaired-driving cases. "When it comes to the police accident reconstructionists, they tend to be straight shooters. The bigger concern, though, is un- conscious bias. You are still a po- lice officer," says Rosenthal. LT NEWS NEWS NEWS Mark Halfyard says questions of bias do arise in criminal cases for 'institutional' witnesses such as police and others who normally testify for the Crown. For an expert witness to be truly independent, they cannot have any skin in the game. Jonathan Rosenthal S.N.King Bookkeeping Services Law office specialist, PCLaw, LSUC audits, payroll, LSUC and tax reports. (905) 409-9109 sueking1234@gmail.com LAW TIMES Marketplace © 2017 Thomson Reuters Canada Limited 00246WZ-87794-NP Manage the issues that are reshaping family law Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 987117BE-65203 $215 Hardcover + ProView eBook July 2017 approx. 1260 pages L7798-7117BE eBook only A06713-17ON-65203 $179 Print only 987117-65203 $179 Annual volumes supplied on standing order subscription Multiple copy discounts available Shipping and handling are extra. 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