2011 MBPC 55, 2011 MBPC 55

Citation # 2011 MBPC 55 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Katherine Dojack, for the Crown ) - and - ) ) Vernon David Bruce ) Darren Sawchuk, for the Accused ) ) Judgment delivered: ) July 18, 2011 CARLSON, P.J. Introduction [ 1 ] On May 24, 2011, Vernon Bruce entered a guilty plea to a charge that on April 5, 2010, in Winnipeg, Manitoba, he operated a motor vehicle while his ability to do so was impaired by alcohol. The Crown proceeded by way of “subsequent offence”, given Mr. Bruce’s prior related record. [ 2 ] Mr.

Bruce applied for a curative discharge pursuant to section 255(5) of the Criminal Code . The Crown is opposed to Mr. Bruce receiving a curative discharge, and seeks a jail sentence. [ 3 ] The hearing of the curative discharge application began on May 24, 2011. Mr. Bruce testified. Mr. Rob Bailey, a production manager at Standard Aero Limited, where Mr. Bruce is employed, also testified. Defence counsel then called Mr. Bob Thomas to testify. Mr. Thomas is employed as a keyworker and assessment worker by The Behavioural Health Foundation (“BHF”). Once Mr.

Thomas was on the stand, defence counsel informed the Court that he was seeking to have Mr. Thomas qualified as an expert witness, so that he may give opinion evidence as to : 1. What an “alcoholic” is; 2. Whether Mr. Bruce is an alcoholic; and 3. Treatment of alcohol addiction. [ 4 ] The Crown attorney advised that, while she had been provided in advance with two documents authored by Mr. Thomas, she had not been provided with any prior notice of defence counsel’s intent to seek to have Mr.

Thomas qualified as an expert, much less the formal notice required by s. 657.3(3) of the Criminal Code . [ 5 ] The Crown attorney requested, and was granted, an adjournment, to June 22, 2011, to consider her position as to the issue of Mr. Thomas being qualified to give expert evidence. [ 6 ] The hearing resumed on June 22, 2011. At that time, the Crown attorney advised that she opposed Mr.

Thomas being qualified as an expert witness, and pointed out that she still had not been given proper notice by defence counsel as required by s. 657.3(3) of the Criminal Code . [ 7 ] A voir dire was entered into to address Mr. Thomas’ qualifications, and for the Court to determine whether Mr. Thomas would be qualified to give expert evidence. Mr. Thomas was examined in chief and was cross-examined. [ 8 ] At the end of Mr. Thomas’ evidence on the voir dire , defence counsel asked that Mr. Thomas be qualified as an expert to give opinion evidence with respect to: 1.

The assessment of the issue of abuse of alcohol by an individual; and, 2. The provision of treatment of a non-medical nature relative to alcohol abuse.

The issues on the v oir dire [ 9 ] The Court must decide the following issues: 1. Did defence counsel provide proper notice to the Crown of his intention to call Mr. Thomas as an expert witness as required by s. 657.3(3) of the Criminal Code ? 2. If not, what is the effect of that, if any, on defence counsel’s application to qualify Mr. Thomas as an expert? 3. Is Mr. Thomas qualified as an expert to give opinion evidence as proposed by defence counsel? The evidence on the voir dire [ 10 ] Two documents relative to Mr. Thomas’ proposed evidence were entered as exhibits in the voir dire . These are: 1.

A letter to defence counsel dated May 19, 2011 from Mr. Thomas setting out his education, training, and employment duties with BHF. This was marked as Exhibit 1 in the voir dire; and 2. An undated Discharge Report of BHF, for Mr. Bruce, signed by Mr. Thomas. This was marked as Exhibit 2 in the voir dire . [ 11 ] Mr. Thomas’ evidence on direct examination may be summarized as follows:

a) BHF is a long-term residential treatment facility for persons with drug and alcohol addictions.

b) Mr. Thomas himself entered BHF as a resident in July 2002 and was there for 15 months as a resident, due to his own substance addiction, dealing with lifestyle and behavioural issues. After 15 months, he went into transitional housing and continued to do programming at BHF. Once he felt he had his life back on track, he exited the BHF program.

c) Mr. Thomas began working as an employee of BHF after he exited the program. He started part time and then worked as a “keyworker”. He has continued to work as a keyworker but, since 2003, has also worked as an assessment worker.

d) Mr. Thomas says in the document marked as Exhibit 1 as follows: “My duties include ensuring that basic needs are supplied to residents, providing individual and group counselling and education to residents in regards to their addictions. Other tasks and duties are listed in the job descriptions I have provided.” No other document containing job descriptions was provided to the Court.

e) As a keyworker, Mr. Thomas counsels clients at BHF. He estimates he has counselled approximately 30 people per year. This counselling is done while the client is resident at BHF and may continue once that client exits the program, if requested by the client.

f) Once a client has been admitted to the BHF program, based on an intake worker’s determination that the client meets the BHF criteria for admission, Mr. Thomas begins his role as an assessment worker. The assessment process focuses on how drugs and/or alcohol has impacted the client’s life. Mr. Thomas estimates that he has done approximately 20 to 25 assessments each year since 2003.

g) The assessment Mr. Thomas does with respect to a client is then used to formulate a treatment plan for that client.

h) Mr. Thomas says that the time he spent at BHF gave him the experience required to help recognize the triggers and other factors that lead to negative behaviours. It is the experience that assists him in his work as an employee of BHF in helping other clients reach their treatment objectives.

i) Mr. Thomas has a grade 12 education. He participated in a number of sessions while a resident at BHF, and has incorporated what he learned in the sessions into his work with his clients. A list of those sessions is contained in Exhibit 1. He has also taken some sessions through the Addictions Foundation of Manitoba and the Mental Health Association. Mr. Thomas regularly facilitates seminars at BHF called “Taking Responsibility”, “Family Violence Education”, “Peer Group Sessions” and “New Member Rap Sessions”.

j) Mr. Bruce was admitted to BHF as a condition of his judicial interim release from custody on pending impaired driving charges.

k) Mr. Thomas did an assessment with respect to Mr. Bruce’s situation during Mr. Bruce’s first seven days at BHF.

l) Mr. Thomas provided counselling to Mr. Bruce while he was in BHF, and has had weekly outreach sessions with Mr. Bruce since Mr. Bruce exited BHF on October 27, 2010. These sessions have addressed all areas of Mr. Bruce’s lifestyle including, as Mr. Thomas says in Exhibit 1: “…home life, relationships with family, stress and anger management, budgeting, high risk situations and triggers, taking ownership for his actions and employment”. [ 12 ] On cross examination, the following was established:

a) Mr. Thomas has never been qualified as an expert in court proceedings, though he has once before testified in court about his

dealings with a particular client at BHF.

b) He does not have any post secondary education.

c) Mr. Thomas has not authored any writings on alcohol addiction, done any research on alcohol addiction, done any certification course on addictions, nor does he hold any membership in any professional society.

d) Mr. Thomas is not familiar with medical literature about the treatment of alcohol addiction.

e) He does not have any medical background.

f) He does not have any special training in the assessment of the need for curative treatment.

g) He does not have any training in diagnosing alcoholism.

h) Mr. Thomas was asked about his understanding of Alcoholics Anonymous’ (“AA”) view of alcoholism as compared to the BHF view. He advised that AA treats alcoholism as a disease, whereas BHF treats alcoholism as a behaviour. He accepts the BHF model. He was then asked whether he is aware how the BHF view is different than, or the same as, the medical model. His response was that he does not know anything about the medical model. Issue #1: Was proper notice given under s. 657.3(3) ? [ 13 ] The requirements for counsel who intends to call a witness to give expert opinion evidence are set out in s. 657.3 of the Criminal Code . [ 14 ]

Section 657.3(3)(

a) provides that: “ a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by (

i) the name of the proposed witness, (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and (iii) a statement of the qualifications of the proposed witness as an expert.” [ 15 ] Further, s. 657.3(3)(

c) provides that: “in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b)”. [ 16 ] The material referred to in paragraph (

b) is: “(

i) a copy of the report, if any, prepared by the proposed witness for the case, and (ii) if no report is prepared, a

summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based.” [ 17 ] The requirements of s. 657.3(3)(

a) were not complied with by defence counsel in this case. Notice was not given to the Crown that Mr. Thomas would be proffered as an expert witness until Mr. Thomas was on the stand, and after the Crown attorney had already presented her submissions relative to sentence. Further, neither of the two documents marked as exhibits on the voir dire , which were the only documents provided to the Crown counsel prior the hearing relative to Mr. Thomas, constitute either a report or a

summary of the opinion anticipated to be given by Mr. Thomas and the grounds on which it is based. [ 18 ] Due to the lack of notice as required by s. 657.3(3), the Crown was granted an adjournment. [ 19 ] When the hearing resumed on June 22, 2011, and before beginning her cross examination of Mr. Thomas, the Crown attorney argued that she still did not have proper notice under s. 657.3(3). [ 20 ] Indeed, although the adjournment to June 22 addressed the lack of notice that Mr. Thomas was going to be called as an expert, notice was still deficient in two ways when the hearing resumed. First, neither report nor

summary of Mr. Thomas’ anticipated evidence, as required, had been provided. Further, the areas of Mr. Thomas’ expertise in which defence counsel requested the Court qualify him to give opinion evidence were described differently by defence counsel in argument than they were at the start of the voir dire , before Mr. Thomas’ evidence. [ 21 ] I find that notice indeed was not provided by defence counsel as required by s. 657.3(3). [ 22 ] The Court requested that the Crown attorney proceed with her cross-examination of Mr. Thomas and deal with her concerns about lack of notice in argument on the voir dire . Issue #2: What is the effect of non-compliance with s. 657.3(3) in this case? [ 23 ]

Section 657.3(4) gives the Court jurisdiction, where there is non-compliance with the requirements of s. 657.3(3), to order compliance with its requirements, an adjournment or the calling of other witnesses. It is a

section that facilitates, procedurally, the

Court’s management of proceedings relative to proposed expert testimony. [24] The admissibility of expert evidence does not hinge on compliance with the notice requirements. The notice requirements areto ensure that all counsel have sufficient opportunity to be prepared to assess and potentially challenge a proposed expert’s qualificationsand the opinion evidence that expert is anticipated to give. [25] Non-compliance by defence counsel with the procedural requirements of s. 657.3(3) would not preclude Mr.

Thomas fromtestifying as an expert, if he is qualified as such. [26] In this case, the remedy to address the non-compliance with the notice requirements was the adjournment granted to the Crownon the first day of the hearing. [27] The Court appreciates the Crown’s concerns that there was still non-compliance with the notice requirements when the hearingresumed. Given the Court’s decision on the ultimate issue as to whether or not Mr. Thomas will be qualified to give expert evidence, it isnot necessary for the Court to address the continued non-compliance.

If the Court were inclined toward a different decision on theultimate issue of qualification of Mr. Thomas as an expert, the Court would have re-convened the proceedings before making a decisionand invited Crown counsel to advise if there were a procedural remedy sought to ensure the opportunity to be fully prepared to addressthe proposed expertise articulated by defence counsel during his submissions. [28] Ultimately, the fact that proper notice was not given does not affect the Court’s decision as to whether or not Mr. Thomas isqualified to give expert evidence. Issue #3: Is Mr.

Thomas qualified as an expert to give opinion evidence as to: (

i) the assessment of the issue of abuse of alcohol by an individual; and/or (ii) the provision of treatment of a non-medical nature relative to alcohol abuse? [29] In order to be admissible, expert evidence, since it is opinion evidence (and therefore otherwise inadmissible as being hearsay)must meet four criteria, as set out by the Supreme Court of Canada, in R. v. Mohan (SCC), [1994] 2 S.C.R. 9.

Theevidence, to be admissible, must be: • relevant; • necessary in assisting the trier of fact; • not precluded from admissibility by any exclusionary rule; and • given by a properly qualified expert. [30] The Crown accepts evidence to be given by Mr. Thomas is relevant and would not be precluded by any exclusionary rule. [31] The Crown disputes that Mr. Thomas’ opinion evidence is necessary. [32] The issue on the voir dire in this case relates to whether Mr. Thomas is a properly qualified expert. [33] In R. v.

Mohan, a “properly qualified expert” is described as a witness “…who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or sheundertakes to testify.” (para. 27) [34] How strict a test is this? In R. v. Marquard (SCC), [1993] 4 S.C.R. 223, the Supreme Court of Canada statedthat the only requirement for the admission of expert opinion is that the “expert witness possess special knowledge and experience going beyond that of the trier of fact”: R. v.

Beland, (SCC),[1987] 2 S.C.R. 398 at p. 415, and that “Deficiencies in the expertise go to weight, not admissibility” (para 35). [35] On the other hand, in R. v. J.-L.J., 2000 SCC 51 , [2000] 2 S.C.R. 600 (S.C.C.) Binnie J. states at p. 613: “the Court has emphasized that the trial judge should take seriously the role of “gatekeeper’’. The admissibility of the expert evidenceshould be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the endof the day to weight rather than admissibility”. [36] These comments in R. v. Marquard and in R. v.

J.-L.J. would seem to be at odds in terms of how strictly the admissibility ofproposed expert evidence is to be monitored. In R. v. Thomas [2006] O.J. No. 153, the Ontario Superior Court of Justice considered thispoint, and suggested that the direction of Binnie, J. in R v J.-L.J. remains clear and that the comments in R. v. Marquard derived from thespecific facts of that case. In R. v. Marquard, the proposed experts did not lack special knowledge.

Instead, they all had some specialknowledge but were qualified by the trial judge more narrowly than their actual areas of expertise or the scope of their evidence. [37] In my view, if I find that Mr. Thomas does have special or peculiar knowledge in the area of alcohol abuse assessment and/ornon-medical alcohol abuse treatment, he should be qualified as an expert. If I find that he does not, then he should not be qualified as anexpert, and should be restricted to giving non-opinion evidence on the s. 255(5) curative discharge hearing. [38] It is fair to say that Mr.

Thomas’ purported special or peculiar knowledge is based on his own experiences with his addictionand treatment for that addiction, the programming he went through at BHF, his ongoing work with clients at BHF, and seminars and

workshops provided by BHF to educate staff on addictions treatment. He does not have any formal education or academic training in thearea of addiction or addictions treatment. [39] In R. v.

Thomas, the Court said that although how a witness acquires “special” or “peculiar” knowledge does not matter, whenassessing the qualifications of a proposed expert, judges generally consider factors such as professional qualifications, actual experience,participation or membership in professional associations, nature and extent of publications, involvement in courses in the area, andefforts to keep current with literature in the field. [40] Defence counsel provided a number of cases in which evidence in support of a curative discharge application was provided byan addictions counsellor. [41] In R. v.

Soosay, (2001) 2001 ABCA 287 , 160 C.C.C. (3d) 437, the Alberta Court of Appeal considered the evidenceof a counsellor with a Youth Justice Committee who had been working with the offender. He was not put forward as an expert witness,but the court in any event noted that he “…is not an expert qualified to give opinion evidence regarding the abuse of alcohol by theRespondent and the likely success of treatment in this case”.

The Court said that the counsellor’s evidence did not even qualify as“medical or other evidence” under s. 255(5), but did say that an alcohol or drug abuse counsellor with training and experience treatingalcoholics might be qualified to give evidence that would qualify as “other evidence” under s. 255(5). [42] In R. v.

Beaulieu (NWT SC), 53 C.C.C. (2d) 342 (NWT SC), evidence on a curative discharge applicationwas provided by the Chief of the Alcohol and Drug Program, Department of Health and Social Services, Government of the NorthwestTerritories; by the Executive Director of Northern Addiction Services in Yellowknife; by a senior social worker employed at theYellowknife Correctional Centre; and by a medical doctor. None of these persons were proposed as expert witnesses. Their evidence wasproposed as “medical or other evidence” on a s. 255(5) application. [43] In R. v.

Ahenakew 2005 SKCA 93 , [2006] 4 W.W.R. 27 the Saskatchewan Court of Appeal considered the evidenceof two addictions counsellors. One of them was a certified addictions counsellor. The other did not have formal credentials but hadexperience in counselling alcohol-addicted persons back into the l960s. She had served as director of a treatment center, and sat on thenational board of an alcohol and drug treatment center.

The Court of Appeal considered that the evidence of these two individuals, alongwith the offender’s evidence constituted “some’ evidence of a need for a curative treatment and upheld the trial judge’s decision toimpose a curative discharge.

Importantly, although there is talk of expertise in the decision, neither of the addictions counsellors wereactually qualified as “experts”. [44] It is important to note that the evidence of addictions counsellors in all three of the foregoing cases was proffered as “other”evidence in the substantive s. 255(5) hearing to determine whether the offender had met the test set out in that section. In none of thosecases did the Court qualify those counsellors as expert witnesses. [45] In R. v.

Gray [2004] A.W.L.D. 611, the Alberta Provincial Court qualified as an expert, a witness who had been an addictionscounsellor for over 30 years. The decision does not suggest that qualification of the witness as an expert was challenged by the Crown. [46] In R. v. Kalyniak [1996] A.W.L.D. 506, the Alberta Provincial Court qualified an addictions counsellor as an expert to give anopinion as to exactly the two areas that defence counsel now seeks to have Mr.Thomas testify about. The witness was cross-examined onher qualifications but it is not clear if the Crown opposed her being qualified as an expert witness.

The witness was an addictionscounsellor with the Alcohol and Drug Abuse Clinic.

The decision does not give information about her formal education or training ifany. [47] Although the requirement for “special” or “peculiar” knowledge going beyond that of the Court may suggest that anyone doinga particular type of work, for a period of time, with a certain segment of the public, may seem to set a relatively low bar for someone tobe considered an “expert”, in fact when cases in which a proposed expert’s qualifications are challenged by the Crown are considered, itbecomes apparent that the test is, in fact, a relatively strict one. In R v.

Thomas, for example, a highly trained nurse with many years ofexperience conducting physical examinations of victims of sexual assaults was found not to be qualified to give expert evidence on theissue of whether, in a particular case, injuries sustained by a victim were more consistent with non-consensual or consensual sexualintercourse.

Clearly, the “special” or “peculiar” knowledge must be relative to exactly the area of expertise proposed. [48] It may well be that there are people who do addictions assessments and/or counsel addicts that can be qualified as “expert”witnesses, and can properly give opinion evidence about addiction and treatment. In this case, I must consider Mr. Thomas only, andwhether he is an “expert” in the assessment of alcohol abuse and in the provision of non-medical treatment for alcohol abuse. [49] Mr. Thomas has no formal training or education as an assessor or as a counsellor.

He does not have any sort of certification ineither area. His proposed expertise is based on his own past addiction and continued success in managing that addiction, attending thesessions at BHF first as a participant and then as a facilitator, and then the “hands on” work of doing many assessments of new residentsat BHF and counselling many clients at, and after they leave, BHF. [50] Mr. Thomas gave evidence about what he does with his clients.

He said that he talks to them about anger and living a healthylifestyle; that he acts as a positive support; and that to be effective in his job, it is necessary to develop a rapport and trust with hisclients. He did explain that the BHF approach to substance abuse is that addiction is based on learned behaviour that has to be changed. However, there was no evidence led, or contained in the documents filed, about actual treatment – how the counselling he does works astreatment of alcohol abuse or what he does to help someone change his learned behaviours.

There was not any explanation about howthe counselling can act as curative treatment. In fact when asked about how the BHF model of treatment is different than the medicalmodel, Mr. Thomas was quite candid that he did not know. [51] In terms of the assessment of alcohol abuse, Mr. Thomas has done many assessments of persons who have entered the BHFprogram. There was evidence about the kind of information he collects from someone applying to BHF, but no evidence about any sortof analysis that is done on that information to make the assessment that someone has an addiction.

[ 52 ] I am not satisfied that Mr. Thomas, based on the documents filed and the evidence given about his qualifications, is an expert in the area of assessment of alcohol abuse or in the provision of non medical treatment for alcohol abuse. He candidly and specifically said on cross-examination that he does not have any training in diagnosing alcoholism nor in assessing the need for curative treatment. The fact Mr.

Thomas has been doing assessments and providing counselling to further the work of BHF, based on his own life experiences and his work with other BHF clients, just, in the Court’s view, does not make him an expert in the areas proposed. Decision [ 53 ] In all the circumstances, the Court is not prepared to qualify Mr. Thomas as an expert witness, and defence counsel’s application to so qualify Mr. Thomas is denied. [ 54 ] Mr. Thomas may of course, give evidence about the work he has done with Mr. Bruce. Any such evidence will be considered as “other evidence” on the s. 255(5) application.

Original signed by: CATHERINE CARLSON, P.J.