2015 QCCA 314, 2015 QCCA 314

Gakmakge c. R. 2015 QCCA 314 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004893-119 (550-01-039484-086) DATE: FEBRUARY 13, 2015 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. KHALID GAKMAKGE APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] The appellant Khalid Gakmakge has raised five grounds (in reality four, as two of them relate to the same subject) in this appeal from the verdict of conviction for second degree murder rendered on March 11, 2011 by a jury of the Superior Court, District of Gatineau, at which the Honourable Mr. Justice Martin Castonguay presided. [ 2 ] The Court has concluded that the first of them, referred to beginning at paragraph [16] below, is well founded.

Accordingly, the appeal will be allowed, the verdict of conviction set aside, and a new trial ordered. [ 3 ] The circumstances leading to the death of the appellant's wife, Lucia Medeiros, just past midnight on December 12, 2008, are relatively clear. What is important is that from the outset, the appellant admitted having caused her death by stabbing her with a large kitchen knife.

He claimed to have done so, however, in self-defence after she first assaulted him with the same knife as he lay in bed sleeping. [ 4 ] The couple had been married for several years, but their matrimonial relationship was not especially stable. In particular, Ms Medeiros' family members were more or less against her marrying him, and contacts between him and the members of her family were few and far between. Ms Medeiros had also developed a prescription drug dependency that had strained their relationship and kept her from work over a period of time.

As for the appellant, he had been involved in a serious automobile accident during the marriage that required long term convalescence and prevented him from working. [ 5 ] At the time of the events giving rise to the charge of second degree murder, Ms Medeiros was employed at a local bank, and the parties were living together in the family residence. [ 6 ] In the early morning hours of Sunday, December 7, Ms Medeiros came home from an office Christmas party that began the previous evening. According to the appellant, she was drunk to a significant extent.

She admitted to him that she had engaged in a sexual relationship after the party was over with someone she did not identify. In fact, this person was a co-worker, and there was a resulting danger for both of them that they would lose their jobs if they established and maintained an amorous relationship. [ 7 ] Ms Medeiros' description of the incident suggested to the appellant that the activity was not consensual, which led him to inquire whether she had been raped, for which he would want to call the police.

Ms Medeiros dissuaded him from doing so, and asserted she had not been raped although she had been drunk at the time. He testified that he then told her that he intended to divorce her, and to assume ownership of the family residence and a cottage they owned, to her exclusion.

He maintained this position with respect to a divorce and related financial matters until her death later that week. [ 8 ] According to the person with whom she did have the sexual relationship after the Christmas party, it was entirely consensual, and occurred after Ms Medeiros had expressed her desire to leave her marriage with the appellant.

In the week following, she slept on two occasions at this individual's home, with whom she continued to have sex, and lied to her family members about where she would be spending the evening on those occasions. [ 9 ] The precise details of the manner in which the appellant caused Ms Medeiros' death are the subject of his testimony and expert evidence from the pathologist who performed an autopsy on December 15, Dr. Caroline Tanguay, as well from Jacinthe Prévost, an employee of the police forensic laboratory with expertise in blood splatters, DNA and crime scene investigation.

[ 10 ] According to the appellant, the victim was at home with him on the evening of Thursday, December 11. He had intended to sleep on the sofa in the living room, but she eventually coaxed him into joining her in bed. He says she eventually initiated sexual activity with him that he initially resisted, but in which he eventually participated, which he says resulted in him ejaculating on her. [1] He then fell asleep beside her. [ 11 ] He was later awakened, he says, by sharp pains in his chest, which were coming from Ms Medeiros assaulting him with the kitchen knife.

He eventually gained control of the knife, and admitted having killed her by stabbing her with the knife. Ms Medeiros evidently staggered to the kitchen from the blood-soaked bed, where she was able to phone 9-1-1 and say that her husband had killed her. Upon the arrival of the police and emergency services personnel, she was found naked in the kitchen, bleeding profusely. She died shortly after their arrival, despite the life-saving measures administered at the scene. [ 12 ] At autopsy, Dr.

Tanguay identified five stab wounds to the chest of the victim, any one of which would have been fatal. [ 13 ] As for the appellant, he was found on one side of the bed, bleeding profusely, with the knife by his side. Upon the arrival of one of the emergency team to his side, he was heard to say words to the effect that "she killed me". He was taken to hospital where his stab wounds and their consequences were appropriately managed.

Later on December 12, he was charged with second degree murder, and he has been detained since then. [ 14 ] The appellant having admitted he caused the death of Ms Medeiros, the only live issue at trial was whether he did so in self- defence (the judge having declined to allow the defence of provocation to go to the jury). [ 15 ] The appellant's theory of the case was described during his testimony, namely, that he responded to Ms Medeiros' assault on him with a knife in order to save his life.

The Crown's theory, on the other hand, was that after he murdered his wife with the knife, he inflicted the stab wounds on himself with a view to committing suicide. [ 16 ] The appellant's first ground of appeal is that the trial judge erred in his adjudication of a motion he presented for a judicial stay of proceedings by failing to order the stay or declare a mistrial.

Essentially, two relevant factors are alleged for present purposes (some of the other purported grounds to obtain a stay being no longer in issue). [ 17 ] The first is that despite the prior notices pursuant to s. 657.3 Cr.C of expert testimony that would be administered, at trial the Crown tried through the testimony of Dr. Tanguay to establish that the wounds found on the victim were not self-inflicted. The obvious purpose of this, the defence argued, would be to have Dr.

Tanguay describe the various features of self-inflicted wounds, and when the time later came, to apply that testimony to the circumstances of the appellant to show his wounds were self-inflicted. This would therefore have the expert introduce testimony through the back door, aimed in reality at challenging the defence of self-defence rather than establishing the victim did not, in effect, commit suicide. [ 18 ] As a result of all of the foregoing, the appellant's trial counsel stated before the jury and filed an admission that the appellant admitted having been responsible for causing the death of his wife.

The trial judge therefore did not permit Dr. Tanguay to testify on the characteristics of self-inflicted wounds. [ 19 ] Next, and most critically, are the allegations in the motion concerning the testimony of Jacinthe Prévost, the relevant extracts of which are as follows: [20] A formal admission that the Petitioner stabbed his wife is on record under P-14; [21] The core issue of this trial is then clearly who stabbed who first, and the sequence of the stabbings is the capital issue to be decided by the Jury; […] [29] The next witness heard by the Crown (after Dr.

Tanguay) was Mrs Jacynthe [sic] Prévost of the Police Forensic Laboratory; [30] She gave evidence as an expert witness in the fields of the study of blood splatters, DNA and crime scene investigation; […] [33] Mrs Jacynthe [sic] Prévost gave evidence for the Crown on the 16 th and 17 th of February 2011; [34] Before finishing his examination in chief, Crown counsel asked for a short recess to prepare the closing questions to the witness; [35] After the suspension, your Honor informed Counsel that the Jury had tendered two questions to the Court relevant to the testimony of this expert witness (J-1); [36] It was agreed between Counsel and your Honor that the Crown would re-question the expert witness in respect to the second question of the Jury; [37] After clearing up that point with the witness (the second Jury question), the following exchange occurred between Crown counsel and the expert witness to conclude her opinions: Crown "Now I would like you to detail the sequence of events in relation to Mr Kakmakge, considering the fact that in the kitchen the knife was found with a majority of blood of the victim, also considering there was blood in the corridor and finally that in the bedroom, on the bed, I mean on the knife, there was majority of blood of the accused" (our underline) Expert "Alors on a un événement qui se produit dans la chambre où la dame est blessée et elle se déplace vers la cuisine.

Nous

avons à un certain moment le couteau qui tombe par terre, et la pointe du couteau est tachée en majorité du sang de la dame. Mais y'a présence du sang de Monsieur aussi, un peu. On sait qu'il est venu dans la cuisine à cause des empreintes et de son sang dans le corridor. Mais on sait que, à la fin de l'événement, lorsque les gens sont aidés, sur le couteau nous, principalement sur la lame, rappelez- vous le shéma que j'ai fait, sur une portion de la lame j'ai pris le sang et c'est le sang majoritaire de Monsieur Gakmakge maintenant, avec des traces minoritaires de Madame.

Donc au moment où le couteau est dans la cuisine, Monsieur était déjà blessé parce que son sang se trouve en minorité sur le couteau.

Mais lorsque l'on le retrouve dans la chambre il est plus blessé parce qu'il y a plus de sang, donc les dernières plaies sont faites après la chute du couteau dans la cuisine " (our underline) [2] ; [38] The witness therefore clearly indicates that, not only can she give a sequence to the stabbings, but that the Petitioner would have stabbed himself lastly, probably in the bedroom; [39] This was the first time that the Petitioner was made aware of the fact that the Prosecution's expert could, and would, give evidence on the core issue of this case; Non disclosure [40] The Crown disclosed a copy of Mrs Jacynthe [sic] Prévost's report to the Defence (see R-4); [41] Nowhere in that report does she, by any means, state an opinion as to her capability of determining the sequence of the stabbings; [42] The conclusion of her report reads as follows: " Résumé Lucia Medeiros a été trouvée nue avec le bas d'un pyjama le long de son corps sur le plancher de la cuisine.

Une

partie de l'agression s'est déroulée dans la chambre à coucher puisque l'on retrouve une mare de son sang sur le drap et des gouttes passives sur le plancher de la chambre. Dans son parcours vers la cuisine elle a pu projeter du sang sur le mur de la salle de bain dans le corridor et a dégoutté sur le plancher de la cuisine. Il est possible qu'elle soit allée jusque derrière la table de la cuisine. Lorsque le couteau tombe par terre dans la cuisine la lame est principalement tachée du sang de la victime Lucia Medeiros. Khalid Gakmakge a été trouvé le couteau à la main couché sur le lit.

Puisque l'on retrouve son sang comme contributeur minoritaire dans la trace de sang laissée par le couteau sur le plancher de la cuisine et son sang sur un mur du corridor, on comprend qu'il était déjà blessé dans la cuisine." [3] [43] Not only does her report not disclose her capacity of forming an opinion on that specific issue but when she testified at the preliminary enquiry she never gave an opinion as to the sequence of the stabbings; [44] To the contrary the only mention she makes in her total testimony at the preliminary enquiry is as follows (see p. 133 of transcripts of the 30 th of September 2009); " ce n'est pas en regardant simplement ce qu'il y a sur la lame qu'on va donner la séquence."; [45] Not only did the State not disclose this capital element of evidence, but when the witness met with the Crown and investigator's to prepare her testimony on the 25th of January 2011, the investigators notes, at the end, read as follows (see R-5): " rien de nouveau"; [46] It should be noted that Mrs Jacynthe [sic] Prévost did not receive any new elements of evidence since she prepared her report on the 14 th of September 2009; […] [51] At the outset of this trial, the Petitioner, with the disclosure furnished by the Crown, had absolutely no "expert" case to meet; [52] On the contrary, Jacynthe [sic] Prévost's report and testimony at the preliminary enquiry gave multiple elements of corroboration to the Defence's theory; [53] Had the Crown disclosed her opinion as to the core issue of this case, Defence counsel would have hired a comparable expert to overview her findings, prepare her cross examination, and testify in the Petitioner's defence; [54] None of this was done because the Petitioner did not have that specific case to meet; [55] Therefore the Petitioner is now put in a position, that because of non disclosure, he is unable to attack the Crown's case on the most crucial and damaging element of the file; [56] Furthermore strategic decisions on the way the Petitioner conducted the totality of these judicial proceedings would have been different; [57] The Petitioner is thus in a position that he is incapable to make a full answer and defence, which is his most fundamental Constitutional right; […] [59] Proceeding in this trial and furnishing the Jury with any amount of instructions will not, by any means, change the prejudice explained in paragraphs 51 to 58 of this present petition, especially considering the "aura" given to expert witnesses by juries; Exclusion of the evidence

[60] If the Crown would have seized the Court, before introducing the evidence, of its intention to go outside the report, the Court could have, as with the pathologist, restrained the evidence to the opinions contained in the report, but the Crown decided to put it to the Jury instead; [61] It is absolutely impossible to erase from the minds of the jurors such damaging evidence, especially knowing their concerns on this specific issue as attested by J-1; [62] Excluding part of her testimony would only fluster the Jury, giving them the impression that we are taking away crucial evidence, and would necessarily discredit the Petitioner's case; [63] Furthermore, as previously stated, the Defence's theory was greatly corroborated by this expert's "original" opinion, it would therefore no longer be corroborated; Adjournment, Mistrial [64] The minimum remedy must constitute a lengthy adjournment to hire a comparable expert, to let him overview the complete file, to re-prepare the cross examination of Mrs Prévost and, finally, to serve the Crown with his opinion and get prepared for trial; [65] Evidently this will take many months considering, as established by Mrs Prévost's testimony in chief, that there are only 2 of these experts in the Province of Quebec (including herself), this causing an immediate mistrial ; [Emphasis in the original.] [ 20 ] In a nutshell, it is argued that in Ms Prévost's expert report that the Crown filed, in her testimony at the preliminary inquiry, and in her preparation to testify at trial with a police investigator shortly prior to trial, she never expressed an opinion based on the blood stains on the knife that the wounds found on the appellant were inflicted after those inflicted on Ms Medeiros, which, if accurate, would give the lie to the defence of self-defence. [ 21 ] Nevertheless, that is precisely what she did at trial in response to a question from Crown counsel arising out of questions from the jury. [ 22 ] Here are the relevant extracts from her expert report that that Crown gave notice of its intention to file as in lieu of her testimony: Le profil génétique Khalid Gakmakge a été obtenu à partir de son échantillon de sang (JP34).

Ce profil correspond au profil obtenu : • Du sang dans le milieu (JP1) et le côté gauche du lit (JP2) • […] • Du sang sur le manche du couteau (JP16C, avec traces) • […] […] Des combinaisons de profils génétiques provenant de deux personnes ont été obtenues à partir des prélèvements de sang dans le motif de couteau sur le plancher de la cuisine (JP12), le sang sur la lame (JP16A), la garde du couteau (JP16B) et le pied droit de Khalid Gakmakge (JP27) ainsi que dans les fractions épithéliales des prélèvements vaginaux (JP22E, JP23E).

Ces combinaisons correspondent à ce que l’on obtiendrait en présence des profils de Khalid Gakmakge (JP34) et de Lucia Medeiros (JP17). Le profil de Lucia Medeiros (JP17) est prédominant dans le contact de sang sur le plancher (JP12) et le profil de Khalid Gakmakge (JP34) est prédominant dans le sang sur la lame du couteau (JP16A) . […] Résumé Lucia Medeiros a été trouvée nue avec le bas d’un pyjama le long de son corps sur le plancher de la cuisine. Une

partie de l’agression s’est déroulée dans la chambre à coucher puisque l’on retrouve une mare de son sang sur le drap et des gouttes passives sur le plancher de la chambre . Dans son parcours vers la cuisine elle a pu projeter du sang sur le mur de salle de bain dans le corridor et a dégoutté sur le plancher de la cuisine. Il est possible qu’elle soit allée jusque derrière la table de cuisine. Lorsque le couteau tombe par terre dans la cuisine la lame est principalement tachée du sang de la victime Lucia Medeiros. Khalid Gakmakge a été trouvé le couteau à la main couché sur le lit .

Puisque l’on retrouve son sang comme contributeur minoritaire dans la trace de sang laissée par le couteau sur le plancher de la cuisine et son sang sur un mur du corridor, on comprend qu’il était déjà blessé dans la cuisine . [Emphasis added.] [ 23 ] Counsel for the appellant pursued the matter at the preliminary inquiry held on September 30 and October 1, 2009. In cross- examining Ms Prévost, he asked her if the predominance of the genetic profile of the appellant on the blade of the knife demonstrated that as between him and Ms Medeiros, he had been the last of the two to be stabbed.

She first answered that it all depended on the way the blood was applied on to the blade. She then continued her answer and eventually concluded that she was unable to answer the question: "The sequence cannot be given by simply looking at what's on the blade." [ 24 ] Ms Prévost testified at trial over a three day span. On the second day, after an examination by Crown counsel, she provided a

summary of her opinion that was consistent with her expert report. During a morning adjournment, the trial judge received two questions

from the jurors, the answer to the first of which has given rise to this ground of appeal. The question from the jury asked whether she had specified "whose blood was on the knife first?". This question directly addressed the issue of sequence. [ 25 ] It was agreed to postpone this first question being asked to her until after cross-examination had been completed, as she was still testifying in chief for the Crown. Instead, Crown counsel asked her the second question, relating to a blood stain left by an imprint of the knife falling on the kitchen floor. Her answer was consistent with her written report.

Then came a follow-up question from Crown counsel, on the issue of sequence, and Ms Prévost's answer: Now, I would like you to detail the sequence of events in relation to Mr. Gakmakge , considering the fact that, in the kitchen, the knife was found with a majority of blood of the victim. Also considering that there was blood in the corridor and, finally, that in the bedroom, on the bed – I mean on the knife – there was a majority of blood of the accused. [Emphasis added.] [ 26 ] Here is her answer, as translated into English by the interpreter carrying out consecutive

interpretation throughout the trial of French-speaking witnesses: So we have an event that occurs in the bedroom where the lady is injured and moves towards the kitchen. We had, at one point, the knife that falls to the floor. And the pointy end of the knife is sullied with mostly the blood of the lady. There is nonetheless the presence of the blood on the man. In a small, smaller quantity. We know that he came into the kitchen because of his footprints and also of his blood in the corridor.

So, but we know that in the end, when the people came to help, we know that on the…on the knife , on the blade – remember the drawing that I made regarding this…So on a portion of the knife, I took a sampling there, and it is, in majority, the blood of Mr. Gakmakge that was found in that area of the knife. Minority traces of the woman. So at the time the knife was in the kitchen, Mister, the man, was already injured because his blood was in minority proportion on the knife. So when we find him in the room, he is a lot more injured.

So the last injuries took place after the sequence of the kitchen . [Emphasis added.] [ 27 ] Counsel for the appellant did not object to the question, or to Ms Prévost's answer. His cross-examination began soon thereafter, during which he sought to establish contradictory answers at the preliminary inquiry. She did acknowledge at one stage that she had not said anything close to the fact that the appellant was stabbed last at the preliminary inquiry. Although she also acknowledged that the conclusion she expressed in the just completed examination in chief is not contained in the

summary of her expert report, she nevertheless affirmed that a more thorough study of her findings allowed her to conclude that the appellant was stabbed last because the majority of the blood found on the knife is from him. [ 28 ] Of final interest is her acknowledgement that the first time she mentioned her conclusion about the sequence of the stabbing was when she testified in chief at trial, and that she had no recollection of having discussed this new conclusion with Crown counsel or the police investigators. [ 29 ] The trial judge dismissed all of the conclusions of the motion in a succinct oral judgment. [ 30 ] He began by noting that the trial was well underway and that 14 witnesses had already been heard.

He then proceeded to set out the appellant's contentions in support of the motion, and in particular that if his counsel had known what Ms Prévost was going to say at trial about the sequence of events, he would have sought to obtain and introduce a contrary opinion. Not being able to do so without the relief claimed in his motion, the appellant argued that he was deprived of a full and complete defence. [ 31 ] The trial judge first rejected submissions on behalf of Mr. Gakmakge that are no longer in issue.

Then, essentially, he concluded that the parameters of Ms Prévost's intended testimony had been previously disclosed. Moreover, her recently impugned testimony did not represent what he referred to as a "180 degree turn", and that "an expert witness cannot be bound by the exact same answers on a given subject time after time". He went on to say that the defence should have reasonably expected from the facts disclosed and the

summary (presumably referring to the written opinion) that her new opinion would emerge at trial. [ 32 ] The first issue to examine is whether this new development emerging from Ms Prévost constitutes a complement to her existing opinion or a new opinion. [ 33 ] Contrary to the trial judge's determination, the Court concludes that it was in reality a new opinion. Simply stating that it flows from the facts, or that it is not incompatible with the existing opinion, inaccurately characterizes its nature.

So too is the trial judge's assertion that the defence should have reasonably expected it to emerge during the trial. [ 34 ] In effect, the core issue of the trial was which of the two spouses was the last to be stabbed. If the jury concluded it was the appellant, he committed murder, if on the other hand it was Ms Medeiros, the defence of self-defence could properly apply. [ 35 ] The answer Ms Prévost gave for the first time at trial was one that was intimately related to the issue of whether the appellant's wounds were self-inflicted.

Despite her testimony at the preliminary inquiry, she indicated at trial when cross-examined that she had since "prepared herself more" and that she thus entertained "a strong hunch" for having "read this in depth" that the sequence of events was as she had just described at trial, namely that it was "very unlikely" that the blood stains of the appellant on the knife were from contamination from the appellant’s hands or wounds, but rather came from the knife actually impaling the appellant. [ 36 ] At trial, the appellant was critical of Crown counsel for not having given notice to the defence of this new opinion, which it argued was in breach of the duty of disclosure lying on the Crown.

Ms Prévost had acknowledged when testifying, however, that she had not discussed her new view of things with the Crown, thus leading the Crown to answer that it could not disclose what it did not know, a point that it emphasizes in its factum in this Court. It is further worth noting that there is no valid suggestion here of the Crown practising wilful blindness to avoid finding out about something it would have to disclose. As Rosenberg, J.A. observed on behalf of the Ontario Court of Appeal in R. v. Horan , [4] the Crown's duty of disclosure is not to be measured on a standard of clairvoyance.

[ 37 ] In such circumstances, it is inconceivable that the appellant's counsel should have anticipated such a revised opinion from Ms Prévost when the Crown itself was unaware of it, a fact that is buttressed by the affirmation of the police investigator who interviewed Ms Prévost for three hours and twenty minutes shortly before trial to review her testimony that there was "rien de nouveau" to report. [5] In other words, defence counsel's obligation to anticipate evidence should not be measured on a standard of clairvoyance either. [ 38 ] With respect, the testimony at trial on the subject of sequence is more than simply not giving the "exact" same answer.

At the preliminary inquiry, Ms Prévost said she was unable to express an opinion on sequence for the reasons she gave, and at trial, she found herself able to give an opinion on that issue without any new facts that were unavailable when she expressed her inability. [ 39 ] What was at stake here was much more than a mere issue of the jury assessing the credibility of Ms Prévost's previous testimony at the preliminary inquiry and comparing it to her different testimony at trial. This is a significant change that can be properly be characterized, to use the judge's words, as a "180 degree turn".

As the appellant argues, it was fundamental for the defence to know what case it had to meet. When the trial started, that did not include having to face a blood splatter expert with an opinion on the issue of the sequence of events as to when the wounds on the appellant were inflicted in comparison to when the fatal wounds were inflicted on the Ms Medeiros. [ 40 ] The appellant was right to argue that in principle he should have been given sufficient time to engage an expert, at a minimum to assist him in cross-examining Ms Prévost, and at best to prepare a contrary opinion.

Such an option would have been available at a judge alone trial that, unlike a jury trial, can be adjourned for an extended period of time. Given the impossibility of adjourning the jury trial for the time that would have been required, the appellant's subsidiary conclusion to have the trial judge order a mistrial should have been granted. In this regard, the Crown brought the Court’s attention to a recent judgment, Tremblay v.

R. [6] That case is wholly inapplicable to the present one, namely because in Tremblay there was Crown disclosure (which is not in issue here) and the expert opinion never changed (although the expert who gave it did change). [ 41 ] Obviously, we cannot know with certainty what impact Ms Prévost's new testimony had on the jury, but it cannot be considered as trifling, as it confirmed the Crown's theory of the case. [ 42 ] Another troubling factor is that Ms Prévost is a professional expert witness with 14 years of experience who is often called upon by the Crown to testify in cases of this nature.

It is surprising to say the least that she did not disclose her different view of the core issue to Crown counsel or to the police investigator who interviewed her before trial. The sudden nature of her new testimony is also worrisome. [ 43 ] In words that are worth recalling in the context of this case where an expert witness for the Crown significantly delayed disclosure of a change of critically important testimony, Major, J. said the following for a majority of the Supreme Court of Canada in R. v.

D.D. : [7] 52 Historically, there existed two modes of utilizing such expert knowledge as was available: first, to select jurors who by experience were best suited to deal with the facts before them, and second, to call experts as friends of the court rather than as witnesses for one side or the other. (See Learned Hand, “Historical and Practical Considerations Regarding Expert Testimony” (1901), 15 Harv. L. Rev. 40.) In this manner, the neutrality of the experts was assured. This notion has long disappeared and now the “professional expert witness” has emerged.

Although not biased in a dishonest sense, these witnesses frequently move from the impartiality generally associated with professionals to advocates in the case.

In some notable instances, it has been recognized that this lack of independence and impartiality can contribute to miscarriages of justice . (See, e.g . , The Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), at p. 172.) 52 Par le passé, il existait deux façons d’utiliser les connaissances d’expert disponibles: premièrement, en choisissant des jurés qui, en raison de leur expérience, étaient les plus aptes à examiner les faits dont ils étaient saisis; deuxièmement, en faisant entendre les experts à

titre d’amis de la cour plutôt qu’à

titre de témoins d’une

partie ou de l’autre. (Voir Learned Hand, «Historical and Practical Considerations Regarding Expert Testimony» (1901), 15 Harv. L. Rev . 40.) De cette manière, la neutralité des experts était assurée. Cette notion est disparue depuis longtemps et le «témoin expert professionnel» est apparu. Bien qu’ils n’aient aucun parti-pris dicté par la malhonnêteté, ces témoins passent fréquemment de l’impartialité généralement associée aux professionnels à la défense d’une idée.

Il a été reconnu dans certains cas notoires que ce manque d’indépendance et d’impartialité pouvait contribuer aux erreurs judiciaires . (Voir, p. ex., Commission sur les poursuites contre Guy Paul Morin (le rapport Kaufman) (1998), aux pp. 199 et 200.) [ 44 ] All of this leads the Court to conclude that the judge erred in his disposition of the appellant's motion, and that a new trial is therefore warranted. [ 45 ] In addition, and although not determinative, after Ms Prévost's changed testimony concerning the sequence of events as it related to the presence of blood on the knife blade, she also changed her mind on another subject that fitted nicely with what she had told the jury about the sequence of events. [ 46 ] This change had to do with the results of her analysis of blood stains under the appellant's foot that were found in the kitchen.

She acknowledged during cross-examination that at the preliminary inquiry she had testified that the source of the blood came from both the appellant and Ms Medeiros, but that "Today, I will now say something else", which was that her further recent analysis showed that Ms Medeiros' blood was the only source of the stain, although there was evidence of blood cells from the appellant.

[ 47 ] Ms Prévost further acknowledged that she only intended to disclose her new view of the matter during her testimony at trial, which she had come to for the first time the day before after discussing it with a workplace colleague, Jean Bergeron. That discussion took place in the corridor outside the court room during a recess of the trial when she was already in the midst of testifying. [ 48 ] When she did so, she went to the extent of asking other individuals present to leave her and her colleague alone while they discussed the new theory.

Nevertheless, she conceded that as someone who had testified as an expert on numerous occasions, she "specifically" knew "that you're not to discuss the case after you started testifying." [ 49 ] In light of the foregoing, the Court will not elaborate to great extent on the other grounds of appeal the appellant raised. [ 50 ] In

summary, however, with respect to them:

(1) The judge erred in maintaining an objection as to the potential financial interest of Ms Medeiros' sisters in the outcome of the appellant's trial because of a lawsuit they instituted against him after his arrest; however, this error was harmless in light of the other evidence in the record relating to the enmity between them;

(2) It would not be opportune to comment on the judge's decision not to open the defence of provocation; since that will depend on the evidence at the new trial and the application of the principles discussed in, amongst other cases, R. v. Buzizi [8] and R. v. Gauthier , [9] neither of which had been rendered when the trial took place;

(3) The new trial judge will be free to give different instructions on the defence of self-defence than those of the trial judge in this case that the appellant challenged. FOR THESE REASONS, THE COURT: [ 51 ] ALLOWS the appeal from conviction; [ 52 ] SETS ASIDE the verdict of conviction of second degree murder; [ 53 ] ORDERS that a new trial be held for second degree murder. ALLAN R. HILTON, J.A. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. Mtre Martin Binet For the appellant Mtre Jean Campeau Director of Criminal and Penal Prosecutions For the respondent Date of hearing: February 10, 2015