R. v. Oghieakhe, 2018 MBPC 53

CITATION: R. v. Oghieakhe , 2018 MBPC 53 File No.:___________ E-File Name: 2018-05-18WCPOghieakheE Appeal No. ___________ IN THE PROVINCIAL COURT OF MANITOBA WINNIPEG, MANITOBA BETWEEN HER MAJESTY THE QUEEN and EMMANUEL EDWIN OGHIEAKHE Accused RULING (Voir Dire) Volume 2 (Pages T1 – T9) May 18, 2018 Winnipeg, Manitoba Royal Reporting Services Ltd.

300 - 2010 - 11th Avenue Regina, Saskatchewan S4P 0J3 Phone: 306-352-3234 Fax: 306-757-7788 TABLE OF CONTENTS Description Page May 18, 2018 Afternoon Session T1 Discussion T1 Ruling ( Voir Dire ) T2 Discussion T6 Certificate of Transcript T9 Proceedings taken in the Provincial Court, Winnipeg, Manitoba May 18, 2018 Afternoon Session The Honourable Judge B. Corrin The Provincial Court of Manitoba K. Sweet For the Crown S. Soldier For the Accused E. Dugard Court Clerk Discussion THE COURT: Okay. He doesn't have to sit in any particular place. MS. SOLDIER: All right. Sure.

THE COURT: I see we're on the record -- MS. SOLDIER: Yes. THE COURT: -- so I will address this. So the accused is present in the courtroom. He's invited to sit down, and both counsel are here in order to hear the reasons for thedecision in reference to the voir dire matter. So, Ms. Sweet and Ms. Soldier, for the record, are here. MS. SOLDIER: Yes. Thank you -- MS. SWEET: Thank you. MS. SOLDIER: -- Your Honour. THE COURT: Yeah. It's just -- MS. SWEET: Good -- good afternoon, Your Honour. THE COURT: -- I thought I'd attach some names to it. Okay.

So having said all that, though, we might as well get on with it so that you can go about your business. I'm sure you have otherthings you must do this afternoon. And in order for me to work more efficiently, I'm going to put on some reading glasses. Ruling (Voir Dire) THE COURT: This is a decision with respect to the Crown's application to qualify an RCMP civilianemployee, Ms. Kristie Sanderson (phonetic), as an expert in the field of textile damage assessment and permit Ms. Sanderson to testify assuch at the trial of this matter. The leading case on the admissibility of expert evidence is R. v.

Mohan, M-O-H-A-N, (SCC), [1994] 2 SCR 9, aunanimous decision of the Supreme Court authored by Sopinka. Justice Sopinka said at paragraph 17 that: (as read) Admission of expert evidence depends upon the application of the following four criteria: the first being relevance; the second beingnecessity in assisting the trier of fact; the third being the absence of any exclusionary rule; and, fourthly, a properly qualified expert.

The Supreme Court of Canada in White Burgess v. Abbott -- that's "white", like the colour, B-U-R-G-E-S-S. Abbott is A-B-B-O-T-T --and Haliburton. There’s a lot of parties there. Abbott and Haliburton, H-A-L-I-B-U-R-T-O-N, cited as [2015] SCC 23, has slightlymodified the Mohan test by adding a second independent step, which was referred to as a Court's gatekeeper function.

This step requiresa trial judge to balance the potential benefits and risks of admitting such evidence, the purpose of which is to determine whether theprobative value of such expert evidence outweighs its prejudicial effect, that is to say, whether the evidence in question will have logicalrelevance to the issues in play at the trial. Expert evidence is therefore presumptively inadmissible but can nevertheless be admitted if the four requirements are met.

As Sopinka J.observed at paragraph 18 of Mohan, even where the expert evidence is relevant in that it is so closely related to a fact that it tends toestablish that fact, other considerations enter into the decision as to the admissibility of that evidence. There must be a cost-benefitanalysis to determine whether the value of the expert evidence is outweighed by its cost. The term "cost" refers to the impact the expertevidence may have on the trial process.

As Sopinka said at paragraph 18, Mohan: (as read) Evidence that is otherwise logically relevant may be excluded on this basis if its probative value is overborne by its prejudicial effect, ifit involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on thetrier of fact, particularly a jury, is out of proportion to its reliability. He went on to comment on the danger inherent in expert evidence at paragraph 19, where he observed: (as read) There is a danger that expert evidence will be misused and will distort the fact-finding process.

Dressed up in scientific language whichthe jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by thejury as being virtually infallible and as having more weight than it actually deserves. The second criteria, and considered in detail by Sopinka, was that of whether or not the expert evidence was necessary to assist the trierof fact. After citing the decision of Justice Dickson, as he then was, in R. v.

Abbey, A-B-B-E-Y, (SCC), [1982] 2 SCR24, he -- referring to the assisting of the trier of fact as being a precondition to admissibility of expert evidence, he said at paragraph 22of Mohan as follows: (as read) This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is notquite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard.

What is required is that theopinion be necessary in the sense that it provides information "which is likely to be outside the experience and knowledge of a judge orjury". As quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J.: (as read) The evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. In Kelliher, K-E-L-L-I-H-E-R, v.

Smith, (SCC), [1931] SCR 672, at page 684, this Court, quoting from Beven, B-E-V-E-N, on Negligence, (4th ed. 1928) at p. 141, stated that: (as read) In order for expert evidence to be admissible, the subject-matter of the inquiry must be such that ordinary people are unlikely to form acorrect judgment about it, if unassisted by persons with special knowledge. At paragraphs 23 and 24 of Mohan, Sopinka reiterated his concern about expert evidence having the potential to distort the fact-findingprocess. As well, he expressed a concern that experts not be permitted to usurp the function of the trier of fact.

Sopinka did not want tosee the fact-finding process become a contest of experts, with the trier of fact acting as a referee.

In R v. D.(D.), 2000 SCC 43 , 2000 148 CCC (3d) 41, at paragraph 57, Sopinka adopted a general approach to the principle ofnecessity, as stated by Professor David Paciocco, P-A-C-I-O-C-C-O, as he then was. He's actually now an Ontario Court judge. Pacioccocited the costs associated with expert evidence, as referenced in the gatekeeper's step, and concluded as follows: (as read) When should we place the legal system and the truth at such risk by allowing expert evidence?

Only when lay persons are apt to come toa wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learningof experts. As Mohan tells us, it is not enough that the expert evidence be helpful before we will be prepared to run these risks. That setstoo low a standard. It must be necessary. That's in his textbook. It's entitled Expert Evidence: Where Are We Now? Actually, I don't think that -- I think it's an

article published in1998. It also goes on: Where are we now? Where are we going?, (1998), at pages 16 and 17. It could be a textbook. I'm not sure. In anyevent, I copied that, I admit, from Sopinka. So in light of the circumstances of the case before me, I choose to say very little about the third criteria set forth in Mohan, as there is noexclusionary rule that I am aware of that would preclude the admitting of the expert evidence in our case. I now turn to the fourth criteria. What is meant by the term "properly qualified expert"?

Even persons with considerable experience in agiven area or subject have not been court qualified as experts. The bar to qualify someone as an expert is necessarily quite high. To quotewhat Sopinka said at paragraph 27 in Mohan -- I'm quoting now: (as read) ...the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience inrespect of the matters on which he or she undertakes to testify. This subject was discussed by the Ontario Court of Appeal in R. v.

A.K., (ON CA), 1999 45 O.R. (3d) 641, whereCharron, as he then was, C-H-A-R-R-O-N, said at paragraph 103: (as read) Opinion evidence can only be of assistance to the extent that the witness has acquired special knowledge over the subject-matter that theaverage trier of fact does not already have. If the witness's "special" or "peculiar" knowledge on a subject-matter is minimal, he or sheshould not be qualified as an expert with respect to that subject. As has been pointed out in a number of cases such as Mohan, White Burgess v.

Abbott, opinion evidence should not be too readilyadmitted under the guise of being expert evidence. As I mentioned earlier, this reticence to permit expert evidence is directly related tothe known risks associated with such evidence. Those risks include the very real danger that a trier of fact may effectively cede theirobligation to decide the facts to the expert, thereby allowing the expert to essentially become the fact-finder. I will now turn my mind to my analysis and conclusions. Having considered the voir dire evidence of Ms.

Sanderson in the context of the criteria established by Sopinka in Mohan, all of whichmust be met before the impugned evidence can be admitted, I have no difficulty in finding that the evidence may be relevant to an issuein the trial before me, that issue being whether I can be satisfied beyond a reasonable doubt that the complainant's evidence respectingdamage to her clothing was possibly associated with an assault she claims the accused had perpetrated upon her person.

Giving consideration to the so-called cost-benefit analysis, I conclude that the amount of time involved in adducing the evidence will notbe inordinate. I am also of the view that such evidence is not likely to be misleading in the sense that its effect on me will be out ofproportion to its reliability.

As to the second criteria, necessity, I am of the view that the reputed expert's testimony will most probably be useful to the Court as thereis a distinct risk that I could, if left solely to my own devices, come to a very wrong conclusion about the nature of the fabric damage,that is to say, whether it was torn because of fabric fatigue or because of the application of force.

As to the third criteria, I restate, as previously mentioned, that there is no exclusionary rule preventing the Court from admitting Ms. Sanderson's testimony. I now turn to the last issue, whether Ms. Sanderson is capable of being categorized and declared to be a properly qualified expert in the field of fabric damage assessment. I am satisfied that she has acquired special or peculiar knowledge through a combination of study and experience. The fact that much of her experience is based on her personal observations does not diminish the validity of her alleged special knowledge per se.

She has also studied the subject matter of her purported expertise with other individuals, who appear to have also been exposed to lengthy practical experience in this field. As such, I am of the opinion that she should be qualified to give opinion evidence with respect to the subject matter of her expertise. Of course, as always, it remains for the Court as trier of fact to determine what weight, if any, to attach to same. I must therefore now turn my attention to the gatekeeper phase, which entails a cost-benefit analysis that attaches to the legal relevance of the expert evidence.

In such respect, I reiterate that I believe Ms. Sanderson's evidence will be more probative than prejudicial. This is particularly so because her testimony is quite limited in scope. She will, as her report discloses, only be telling us why she believes that some of the fabric damage she studied was fresh, to use her terminology. She will not be testifying as to who caused such damage. This is a credibility-based issue that the Court alone must decide at the conclusion of the trial. So that is the decision of the Court. The Court has decided to qualify and accept the evidence of Ms.

Sanderson in reference to her subject matter of expertise. And now we must decide how we're going to complete our trial. Discussion MS. SWEET: Yes, Your Honour, I believe I have agreement in this, now that I have the green light to go forward, that Ms. Sanderson will be -- or can testify via video link? THE COURT: Yeah, I think we discussed that -- MS. SWEET: Yeah. MS. SOLDIER: Yeah. THE COURT: -- last time, and there was general concurrence it would be advisable and preferable. MS. SWEET: So that means -- well, there's arrangements to be made. We have to get a courtroom with a video link, those sorts of things.

So what I suggest, Your Honour, is that we put this for now to a day to arrange a continuation date -- THE COURT: Sure. MS. SWEET: -- which works for everybody. THE COURT: That's fine. No problem. MS. SOLDIER: Yes. And I did ask my learned friend with respect to the officer -- because it is -- we do have a Jordan timeline of 18 months as well. So that timeline is not that far away, but we can certainly -- hopefully we'll have some dates --

MS. SWEET: Yes. MS. SOLDIER: -- before then. I wonder if perhaps -- there's a shorter timeline to May 28th, 1:00, in 301, also the week after, June 4th, 1:00, 301. I prefer sooner rather than later, though. MS. SWEET: Certainly. So what was the first one, May -- MS. SOLDIER: May 28th, 1:00, in 301. MS. SWEET: Okay. And in the meantime, I will arrange to have dates sent out which will work with Your Honour's

schedule and counsels'. THE COURT: Sounds good. MS. SWEET: Thank you. MS. SOLDIER: Thank you. THE COURT: See you then. MS. SOLDIER: Good afternoon. THE COURT: Thank you. THE COURT CLERK: Order. All rise. PROCEEDINGS ADJOURNED UNTIL 1:00 PM, MAY 28, 2018 IN THE MATTER OF THE QUEEN v. EMMANUEL EDWIN OGHIEAKHE I, KARI SHORT, Court Transcriber, HEREBY MAKE OATH AND SAY that the foregoing typewritten pages being numbered T One (T1) to T Eight (T8), inclusive, contain a true and correct transcription of the recorded proceedings taken herein to the best of my knowledge, skill and ability.

_______________________________ COURT TRANSCRIBER