The above title may seem confusing at first. However news media have emphasized the judicial condemnation of the delays in disclosure by the Prosecutor’s office in the Brampton, Ontario court. The Supreme Court of Canada’s judgment in the R. vs. Jordan case placed limits on the amount of delay in taking criminal charges through the courts and this includes the delays in the prosecution’s disclosure of evidence to the defense. Obviously, an accused should be provided with a disclosure of the case against them so that a proper defense of a charge can be prepared. So concerns over the delay of such disclosure are appropriate. But the emphasis of news reports has been only with respect to drug charges at the courthouse in Brampton, Ontario. So how are delays in disclosure treated at other courts in other criminal cases such as Dangerous Driving in motor vehicle collisions? We have first hand knowledge of the double standard that seems to exist.
In testimony recently given at the Welland, Ontario court with respect to a Dangerous Driving charge, Zygmunt M. Gorski attempted to explain his criticisms of the police investigation and the included lack of reasonable disclosure provided by the prosecution. Specifically, disclosure was not provided until the trial had already commenced. When disclosure was eventually provided a day or two after the start of the trial, I was required to review the documentation in an extremely short time of a couple days while also preparing a response report of 29 pages in length. This was at a time when I was also committed to prepare another report on another matter, at the same time frame, unknown that this delay in the criminal trial disclosure would unfold as it did.
The result was that the wording in my report was strongly critical and that wording might have been mellowed had I had an opportunity to review it, but that was not the case. Some adjectives could have been changed or deleted but the core of the criticisms would have remained. The bottom line is that the prosecutor focused on these words to suggest that I was biased toward the police and Justice Ramsey of the Superior Court of Justice agreed with that conclusion.
But the delay in the delivery of the disclosure was not the only matter that required criticism. It was clear from any objective analysis that the charged driver was exceeding the 50-km/h speed limit and travelling in the range of 80 km/h and I confirmed this in my analysis. However police investigators failed to conduct the full and proper analysis that would have confirmed that 80 km/h even though that objective evidence was available for them to use. Instead, police conducted a partial determination of the accused’s post-impact speed of slightly less than 80 km/h and then suggested to the court that the impact speed had to be much higher because of the obvious damage seen on the two vehicles. In my view this was a purposeful act to match the observations of an officer who claimed to have seen the accused’s vehicle travelling well above 150 km/h a few seconds before impact. This attempt to misinform the court was unethical. But there were other issues.
The police reconstructionist lost his measurements of the site and had to return a few days later when some of the crucial evidence was no longer available. This happening was attached in a short phrase in the officer’s copious notes indicating that he had to return to the site to take some additional measurements. At no time could one deduce from his notes that he actually lost all the measurements that he took. Furthermore he never disclosed that crucial post-impact tire marks that were needed to identify a post-impact rate of rotation and therefore confirm how the collision occurred were also lost yet he provided an opinion regarding that rate of rotation.
Furthermore, certain reports were submitted without any indication who authored the reports, without numbered pages or proper titles and certain figures were without references. At a time when I was pressed to prepare my report I had to guess whether the compilation of pages was one, single report authored by one (unknown) analyst or a product of 3 separate reports, also authored by who knows how many other authors. I referred to these reports as “sloppy” and I stand by that comment.
Furthermore, the police reconstructionist should have observed that a post-impact tire mark was a “yaw” mark indicative of a rotating tire that was created just after the impact. In his speed calculations he used a, locked-wheel-skid, deceleration value of 0.7 g over the length of that mark. This cannot be done even by amateur investigators let alone someone who reported that he obtained an ACTAR accreditation as an accident reconstructionist. After viewing the critical response in my original report he then changed that 0.7 g by dividing it by two. An action that would be viewed as remarkably incompetent or worse by anyone familiar with collision reconstruction.
So yes, my words were rightly critical both in my report and on the stand. It was never disclosed why the Judge determined that I was biased toward the police because I could never locate a written copy of his judgment. Did he not understand the technical calculations I performed that indicated that the speed of the accused’s vehicle was nowhere near 150 km/h? Did he not appreciate that you cannot determine the deceleration produced by a yaw mark by dividing the deceleration of a skid mark by two? Did he not recognize that disclosure of the prosecutor’s case was unacceptably late and affected my ability to respond and how I responded? Did he not understand that my role as an expert in these matters is to “wave a red flag” to signal to the court that there were obvious problems in this investigation? I will never know.
What I am left with is a suspicion with respect to the prosecution and the court’s unreasonable actions.
So I return to the issue of the courts’ concern over proper disclosure in drug-related offenses. Clearly the courts feel it is unreasonable to provide late disclosure in such cases as indicated by the Supreme Court of Canada Jordan decision. But why does that concern not translate over to cases of Dangerous Driving in motor vehicle collisions? Do drug dealers have more rights than dangerous drivers? Does that make any sense? If I complained about late disclosure in a drug case would I be deemed as a responsible citizen but because I complained in a Dangerous Driving case I am deemed to be biased? I have no control over how these matters unfold however I remain appalled by these contradictions and mis-representations of my actions.