R. v. Parisien, 2011 ONCJ 354

COURT FILE No.: DATE: Citation: R. v. Parisien , 2011 ONCJ 354 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Joseph R. Parisien Before Justice J. David Wake Reasons released on June 28, 2011 L. Miles....................................................................................................................... for the Crown C. J. Penney................................................................................. for the accused Joseph R. Parisien Wake, J.D.: [ 1 ] The accused was charged with possession and distribution of child pornography.

During the course of the trial, the Crown sought to qualify Constable Michel Villeneuve of the Ottawa Police Service Internet and Child Exploitation (ICE) and High Tech Crime Unit to provide expert opinion evidence “in complete forensics, specifically in the forensic examination of computer and data recovery.” [ 2 ] Mr. Penney, counsel for the accused, submitted that Constable Villeneuve did not have the requisite independence to be qualified as an expert in this trial.

I conducted a voir dire on the issue and, at the conclusion of that voir dire on March 3, 2011, I ruled that Constable Villeneuve could provide an expert opinion at this trial and that the issue of his independence would go to the weight of that opinion. I provided brief reasons for that ruling so that the accused’s Charter application under

section 8 could be heard immediately. I undertook to provide fuller reasons for the ruling on the expert qualifications. These are those reasons. [ 3 ] On March 31, 2011, I delivered my decision dismissing the accused’s

section 8 Charter application. Subsequently, the accused changed his plea to guilty and he is to be sentenced today which renders these reasons moot, however since the issue concerning the expert’s qualifications was fully litigated and since counsel have graciously suggested that the full reasons for my ruling might be of some interest, although no longer necessary to complete this litigation, I have prepared them to be released prior to sentencing. Evidence at the voir dire [ 4 ] Mr.

Penney conceded at the outset of the voir dire that Constable Villeneuve had the requisite experience, training and education regarding the factual issues anticipated to arise at trial. [ 5 ] Mr. Penney submitted that there were 10 reasons why Constable Villeneuve was not above “the exigencies of litigation” see: Ikarian Reefer [1993] 2 Lloyd’s Ref. 68.

i) By the end of cross-examination, Constable Villeneuve admitted that when he sat down to conduct his analyses and write his report, he had already formed the opinion that the accused was guilty. ii) Related to (

i) is the fact that the stated “Analysis Method” adopted by Constable Villeneuve in the report was “to locate and present evidence to support the aforementioned charges”, which he acknowledged in cross-examination to be opposite to the scientific method. iii) Constable Villeneuve was also the arresting officer, although the arrest was made at the direction of Detective Danielle Montgomery. iv) Constable Villeneuve had to make a number of decisions on what data to extract therefore the special concern for confirmation bias was present.

v) The working relationship between Constable Villeneuve and the Investigating Officer, Detective Montgomery, gave rise to an appearance of impartiality since they work in the same small unit with a team of 7 to 9 members and they work closely together. Both attended the accused’s father’s house to obtain the consent to search the accused’s computer and Constable Villeneuve performed a preliminary search of the computer at the house after the consent was obtained which led to child pornography being found and the computer being seized.

vi) Some of the communications between Detective Montgomery and Constable Villeneuve have already been found to be work product privilege and would lead a reasonable observer to conclude that Constable Villeneuve was “working for the Crown”.

In fact, see (ix) below where Constable Villeneuve makes the remarkable admission in evidence that he saw himself as part of the prosecution team and that he worked for the Crown. vii) Not all of the communications between Constable Villeneuve and Detective Montgomery were recorded and thus not available for independent review, as urged by the Kaufman Report in Recommendations 13 and 14. viii) When speaking to the accused’s counsel on February 24, 2011 and again in evidence regarding his neutrality, he said it was not for him to say. ix) See (vi) above.

x) Constable Villeneuve has no training concerning the importance of his independence when being proposed as an expert witness. [ 6 ] I accept that the concerns raised by Mr. Penney in the 10 points above are founded in the evidence of Constable Villeneuve. Analysis [ 7 ] Ms. Miles for the Crown has submitted a number of cases where police officers have been accepted as expert witnesses but this misses the point raised by Mr. Penney.

The fact is that given the nature of the material involved and the legal restrictions to its access, the number of persons who could be called to give expert evidence is extremely small and it is not remarkable that a police officer should be proffered. Mr. Penney’s objection is to this police officer due to his close involvement with the team investigating this particular offence and this officer’s failure to appreciate the independent role an expert is expected to perform in offering an opinion to the Court. [ 8 ] Mr. Penney cites the following passage from Wein, J. in R. v. Docherty , [2010] O.J.

No. 4630 (Ont.S.C.J.) to emphasize the importance of both bias and its appearance: The rules permitting the introduction of opinion testimony are clearly predicated on impartiality. The independence and objectivity of a professional opinion requires the absence of bias. Confidence in the decisions based in whole or in part on expert testimony, required that there be no appearance of bias.

It has been held that while a tangential vested interest in the outcome of proceedings by way of payment, or continuing associations with either the Crown or defence, do not necessarily require exclusion of such a witness, the ethical limits under which an expert testifies must be adhered to or the confidence of the public in allowing expert testimony will inevitably be undermined. [ 9 ] Recently, Professor David Paciocco delved into the issue of expert bias and argued that the Mohan test does not address bias directly enough. see “Unplugging Jukebox testimony in an adversarial System: Strategies for Changing the Tune on Partial Experts” (2009), 34 Queen’s L.J. 565-610. [ 10 ] Professor Paciocco reviews “how bias, partiality and influence can taint expert testimony.” Many of the areas covered in the

article are included in the 10 points raised by Mr. Penney: the relationship of the litigant and the expert, adversarial bias which includes not only selection bias but also association bias – the latter being particularly relevant in this case. Confirmation bias is what Professor Paciocco terms the “most insidious manifestation of adversarial bias.” The example of disgraced paediatric forensic pathologist Dr. Charles Smith who misperceived his role as being an advocate for the Crown is a ready example of the dangers of adversarial bias. Unfortunately, Dr.

Smith is not alone in his misunderstanding of the expert’s role – Constable Villeneuve clearly does not understand his duty to the Court to act as an impartial advisor. [ 11 ] Professor Paciocco reviews the current state of Canadian law on the question of whether biased expert evidence should be admitted or excluded and concludes at paragraph 47 that: Most judges who identify problems of bias do not exclude expert witnesses; instead, they simply consider partiality or influence to affect the weight of the evidence, leading them in some cases to reject the evidence entirely. [ 12 ] In determining what the standard of exclusion should be in a Mohan voir dire , he argues at paragraph 51 that: When it comes to expert witnesses, apprehended bias can be taken into account by discounting the weight their testimony receives even where it has been admitted, it would not be prudent to exclude expert evidence based solely on mere apprehension of bias.

Concerns about bias are common enough in litigation that a reasonable apprehension test would invite overkill. In most cases it would be better to hear the evidence and evaluate its totality, rather than to overreact by rejecting what could prove to be important and safe testimony. [ 13 ] This is the approach I propose to take in relation to Constable Villeneuve. I remain alert to the considerable difficulties his evidence at the voir dire presents due to his role in the ICE team and his failure to appreciate the proper role of an expert to the Court.

Nevertheless, I am comforted by the fact that I find him to be an honest witness. He made ready admissions in cross examination and was entirely transparent in the course of his evidence. In addition, his role in the investigation was restricted to the technical support aspects of evidence gathering.

The 166 page report he produced was largely a recitation of what steps he took to select and retrieve data from the accused’s computer and where he found that data, including a June 3, 2008 chat between an undercover officer and the accused which was found within the saved Google Hello chats on the accused’s computer. The examination of the hard drive, as Ms. Miles put it, did not affect the data on the hard drive even if different examiners approached the task of extracting it differently.

The only expert opinion advanced was that viewers of child pornography are collectors and take care to secure their collection which would explain the complex password used on the accused’s computer and would explain why files and programs were removed from the computer prior to

the accused leaving for Korea. He also ventured an opinion that the accused would have been responsible for the child pornography on the computer and not a virus because of the obscure location where it was found.

These opinions are all capable of being challenged and tested and any alternative theories could be presented so that his evidence can be stacked up against the totality of the evidence, including the element of bias which may have played a role in the development of his opinions. [ 14 ] For these reasons, I was prepared to admit Constable Villeneuve’s evidence as expert testimony and be mindful of the bias concerns in assessing the weight of that evidence. Postscript [ 15 ] Since making this ruling during the trial the accused has changed his plea and appears before me for sentencing.

This serves to validate Professor Paciocco’s statement that “in most cases it would be better to hear the evidence and evaluate it in its totality, rather than to overreact by rejecting what could prove to be important and safe testimony.” However, the fact that no fewer than 10 reasons were advanced as part of a creditable argument that Constable Villeneuve was not “above the exigencies of the litigation” demonstrates how close this “important and safe testimony” was to being excluded as a result of a police officer who is part of the ICE team being proffered as an expert witness, particularly when he did not understand the role of the expert. [ 16 ] I was also concerned by the approach of Constable Villeneuve and, indeed, the Ottawa Police Service to the approach taken to the timing of his expert forensic report.

It is his position that he does not begin to prepare the report until he is served with a subpoena which invariably does not take place in this jurisdiction until close to the trial date. Constable Villeneuve, who was aware of the provisions of

section 657.3 of the Criminal Code was unable to deliver his 166 page report until a few days before a trial which had been set for 5 days. The defence was entitled to an adjournment prior to cross-examining the expert and the subsequent delay would arguably have been attributed to the Crown. As it turned out the week was consumed by other motions and the Charter application so the trial would have had to have been adjourned anyway but the situation does expose yet another impediment to the effective prosecution of child pornography charges on the merits. Let this serve as a warning shot across the bow. Released: June 28, 2011 ___________________________ Justice J. David Wake