R v Korca, 2023 ABKB 310

Court of King’s Bench of Alberta Citation: R v Korca, 2023 ABKB 310 Date: 20230524 Docket: 191260496Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Artin Korca Accused _______________________________________________________ Reasons for Decision on Crown Application for Defence Expert Disclosure of the Honourable Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] Artin Korca, the Accused, faces one count of second-degree murder contrary to section 235(1) of the Criminal Code of Canada . His trial, before Judge and jury, is scheduled for three weeks beginning May 29, 2023.

[ 2 ] On May 9, 2023, counsel for the Accused served upon the Crown, pursuant to

section 657.3(3) of the Criminal Code , notice that the Defence may call an expert in forensic psychology and related areas. Attached to the notice is the curriculum vitae of the proposed expert. The notice is dated May 5, 2023 and prior to its receipt on May 9, the Crown did not know that the Defence was considering calling such evidence. [ 3 ] The Crown seeks an order for further particulars of the evidence of the expert pursuant to s 657.3(5)(

b) and, if necessary, an adjournment of the trial pursuant to s 657.3(5)(a). [ 4 ] The Crown brings this application on the following grounds: (

a) the Defence has given late notice of its expert witness; (

b) the Defence has not given any meaningful particulars about the evidence to be given by the expert nor date on which such particulars will be provided; (

c) there is insufficient information about the expert’s opinions and insufficient time remaining before trial to allow the Crown to: (

i) consult a potential rebuttal expert for a second opinion; (ii) obtain a report of that second opinion; (iii) disclose that second opinion to the Defence; (iv) prepare to cross-examine the Defence expert. (

d) In this jury trial, there can be no adjournment sufficiently long enough to allow the Crown enough time to prepare between the receipt of the expert report at the close of the Crown’s case (the latest possible time for release of the report permitted under s 657.3(3)(c)) and before the Defence case). II. Discussion [ 5 ]

Section 657.3(3) of the Criminal Code provides that, for the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses, a party who intends to call an expert witness shall, at least 30 days before the commencement of the trial give notice to the other party of the name, description of the area of expertise and qualifications of the proposed witness. [ 6 ] If the Court is of the opinion that the recipient of the notice has had insufficient time to prepare for the evidence of the proposed expert, s 657.3(5) allows it to do one or more of the following: adjourn the trial; order that further particulars be given of the evidence of the proposed witness; and order the calling or recalling of witnesses. [ 7 ] The trial in this matter is scheduled to begin before a jury on May 29, 2023.

Crown first received notice of the possibility of the Defence calling expert evidence on May 9, 2023. The Defence has failed to comply with s 657.3(3) as it gave notice only 20 days before the commencement of the trial rather than the prescribed minimum of 30 days. [ 8 ] Where a Defence expert witness testified and was cross-examined before an existing report by the Crown’s expert rebuttal witness was provided to the Defence, a new trial was ordered.

As the Defence was unable to address and respond to the Crown expert’s critique of the Defence expert, the accused’s trial was unfair and resulted in a miscarriage of justice: R v Doonanco , 2020 SCC 2 . [ 9 ] Without a copy of the Defence expert’s report or a

summary of his opinion, the Crown argues that it is unable to retain an expert rebuttal witness for a second opinion, obtain a report of that opinion, disclose that report to Defence counsel and prepare to cross- examine the Defence expert. [ 10 ] It bears emphasizing that this is a trial before a jury. Delays caused by adjournments, particularly lengthy adjournments that may be necessitated for the reasons outlined by the Crown, are not possible. Jurors cannot be inconvenienced by lengthy delays. [ 11 ] There are competing interests at play.

On the one hand, an accused is entitled to play their hands close to their vest and require the Crown to first establish a case to meet before being reasonably expected to respond. [ 12 ] On the other hand, the Crown must be allowed to call rebuttal evidence in circumstances where rebuttal evidence is necessary and appropriate. If the need arises to respond to expert evidence, the Crown must have the opportunity to retain an expert in the specific area of expertise that may be necessary to assist the Crown in preparing to cross-examine the Defence expert and to respond to, or rebut, the Defence expert evidence.

There is a practical need in a jury trial for this to be done on a timely basis. [ 13 ] By enacting s 657.3(5), Parliament has given the court some discretion in addressing the competing interests and in minimizing any adverse impact on the rights of an accused, while still ensuring a fair trial for both the Crown and the accused.

In this case, the area of expertise of the proposed expert identified by the Defence, being “forensic psychology”, is simply too broad for the Crown to know in which specific area of expertise it should seek a possible rebuttal witness and to find an expert capable of providing rebuttal evidence in that specific area, should it be necessary. [ 14 ] In the event that the Defence does elect to call its expert, the Defence will be obliged to provide a copy of either that expert’s report, if any, or a

summary of that expert’s opinion no later than the close of the Crown’s case in accordance with s 657.3(3)(c). The Defence will then be entitled to a synopsis of the Crown expert’s opinion and a copy of any prepared report by the Crown expert in advance of its expert’s testimony. This ensures trial fairness for the accused as well: Doonanco .

[ 15 ] This, however, does not solve the Crown’s immediate concern as to the type of expert to retain. It is only fair and just to the parties and the trial process that the Defence provide the Crown with additional particulars regarding the specific area of expertise in which it is anticipated that the Defence expert will testify. The Defence need not disclose, at this time, the opinion itself, the basis of the opinion or the facts upon which the opinion is based.

Knowing the specific area of expertise in which the expert will testify does allow the Crown to seek and retain an expert within that specific area and ensure that expert’s availability at the necessary times. [ 16 ] By no later than the end of the Crown’s case, the Crown expert will have received a copy of the report prepared by that Defence expert or a

summary of their opinion and the grounds on which it is based in accordance with s 657.3(3).

The Crown and its expert will then be in a position to prepare for both the cross-examination of the Defence expert and the rebuttal testimony of the Crown expert. [ 17 ] Accordingly, I direct that the Defence provide additional particulars as to the specific area of expertise within the broad area of “forensic psychology” in which it is anticipated that the Defence expert will testify. [ 18 ] In the event of a dispute as to whether the information provided is sufficient or adequate, I will hear whatever further applications counsel may wish to bring. Heard on the 12 th day of May, 2023.

Dated at the City of Edmonton, Alberta this 24 th day of May, 2023. Eric F. Macklin J.C.K.B.A. Appearances: Anders Quist and Camille Tokar for the Crown Brian Beresh, K.C. for the Accused