R. c. Croxen, 2022 QCCS 5277
[4] At one point during the judicial proceedings, it was announced by the Crown that the pathologist who performed the autopsy of the deceased would not testify at trial and would be replaced by another pathologist. The first pathologist had lost his accreditation to testify as an expert for the forensic laboratory (the Laboratoire de sciences judicaires et médecine légale or LSJML).
[7] In summary, the evidence from the witnesses revealed that the laboratory complies with international standards, and that its practices allow for preservation of its expertise. Thus, if an expert leaves for whatever reason, another expert can take over. Moreover, the witnesses explained the training and supervision program of the experts employed by the laboratory. The pathologist's work in general has been peer-reviewed. Afterward, his accreditation to testify as an expert for the laboratory was withdrawn. The pathologist did not commit any disciplinary fault. The withdrawal of his accreditation was specifically related to his ability to testify in Court and not to his ability to perform autopsies or to give expert opinions. The precise reasons for the withdrawal were recorded in internal documents. Those reasons were disclosed by email in another unrelated court case. The pathologist is now retired. It should be noted that, at no time during their testimony, did the laboratory witnesses object to the production of documents.
III
[8] It was clear, from one end to the other, that the documents related to the pathologist were not covered by the Crown’s duty to disclose evidence under the Stinchcombe regime. The documents were not in possession or control of the Crown and were not part of the fruits of the investigation against the accused. The laboratory is independent from the prosecuting Crown. Therefore, the documents were in the possession of a third party and the O’connor regime was applicable. See: R. v. McNeil, 2009 SCC 3.
[9] The O’connor regime provides for a two-stage test for the production of third-party record.
[10] Firstly, the accused must establish the “likely relevance” of the records sought. There must be a reasonable possibility that the material sought is logically probative of a trial issue or the competence of a witness to testify. This stage has a gate-keeping function. The burden on the accused is substantial, but not onerous. If such relevance is demonstrated, the Court may order the production of said documents for inspection at the second stage.
[11] Secondly, the Court must then balance the competing interests, including any expectation of privacy on the records and the true relevance of the records, to determine whether the documents should be produced to the accused. To resolve the issue, it may be useful to consider whether the record would be disclosed to the accused under the Stinchcombe regime if the record in question had found its way into the Crown prosecutor’s file. If there would be no basis under the Stinchcombe disclosure regime for not disclosing the record to the accused, there can be no principle of sufficient reasoning to arrive at a different conclusion under the O’connor regime for the third-party production. See: R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411; R. v. McNeil, 2009 SCC 3.
[12] In this case, it was undisputed that the internal documents and the email were prone to be relevant pursuant to the first stage test. Upon inspection at the second stage, the Court found that all the documents in question had to be produced to Mr. Croxen.
[13] Since the pathologist was no longer a witness, it is true that the documents were not probative to the competence of a witness to testify in its primary meaning. Besides, the documents did not seem to have any major impact on the expert's opinion with respect to the cause of death. After all, according to the expert’s opinion, the cause of death is quite simple: the victim suffered severe blunt force trauma to the head.
[14] That being said, the standard for disclosure or production remains low. The documents were pursuant to the pathologist’s incapacity to testify effectively because of personal problems. As a result, another pathologist was called to testify at trial. The documents were related to the particular way the Crown's evidence was to be presented to the jury. Hence, said documents were somewhat relevant to the assessment of that evidence. Therefore, the accused should have access to the documents to prepare a complete answer and defence.
[15] The production of the documents involved an invasion of the pathologist's privacy. The parties agreed to a publication ban and to an order to limit the circulation of the information contained in the documents only to the extent necessary for the defence of Mr. Croxen, in accordance with the teachings of R. v. McNeil, 2009 SCC 3.
[16] Mr. Croxen also sought, by way of another application, disclosure of evidence from the second pathologist. He asked for a report or a summary of the nature of his upcoming testimony. This issue has been resolved through discussions between the parties. It is the understanding of the Court that the second pathologist was to testify based on the work of the first pathologist.
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