R. v. Blais

2007 BCSC 1997 R. v. Blais IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Blais, 2007 BCSC 1997 Date: 20071207 Docket: X070896 Registry: New Westminster Regina v. Leslie Blais and John Lowman Before: The Honourable Madam Justice Gill Oral Reasons for Judgment December 7, 2007 Counsel for the Crown: E.A. Campbell Counsel for the Accused, L. Blais: J.F. Chouinard Counsel for the Accused Applicant, J. Lowman: R. Davies, Q.C. B.D. Vaze Place of Hearing: New Westminster, B.C. [1] THE COURT: Dr. Lowman, the applicant on this application, has been subpoenaed to give evidence in the Provincial Court in the matter of R. v. Blais. Mr. Blais is charged with an offence contrary to s. 213(1)(c) of the Criminal Code, R.S.C. 1985, c. C‑46. Defence counsel wishes to bring a constitutional challenge and to have the evidence of Dr. Lowman available to him in respect of that challenge. A subpoena was issued; Dr. Lowman seeks to have that subpoena quashed. As the trial resumes on December 11, the matter has an urgency and there is simply not time to give lengthy reasons which set out all of the necessary background. Accordingly, I do the best I can, noting that it is now after 4:00 p.m. on a Friday evening. [2] Dr. Lowman is a Professor of Criminology at Simon Fraser University. He has no connection to this case. It is because his primary area of research concerns prostitution in Canada that the defence wishes to call him as a witness. Dr. Lowman does not wish to testify. His reasons are set out at paras. 26 and following of his affidavit, sworn November 28, 2007, and filed November 29. In particular, paras. 26 through 35 set out his concerns. I would observe that counsel for Mr. Blais does not object to this Court having regard to the affidavit sworn November 28. [3] Several arguments are made on Dr. Lowman's behalf. It is argued that an expert cannot be forced to provide opinion evidence if he or she does not wish to, at least in circumstances where, as here, the expert has no tie to the litigation or the matter in question. It is said that if there are circumstances in which such an expert can be compelled, it is surely at least necessary for Mr. Blais to demonstrate compelling necessity and he has not done so. Reference was also made to the requirements pursuant to s. 698(1) of the Criminal Code. It is argued that both the materiality of the evidence and the likelihood of the witness giving it must be established by the party obtaining the subpoena and it is said that the latter has not been established. Finally, it is argued it is not in the interests of the administration of justice that Dr. Lowman be compelled to testify. [4] Counsel have referred to a number of authorities. I obviously do not have time to go through them. In respect of each argument, counsel for the applicant made reference to authorities which are said to bear upon the issue. [5] The reasons given by the Provincial Court judge are brief. It is clear from those reasons that he did not consider what I will describe as the compellability of experts or the necessity argument which is now advanced on behalf of Dr. Lowman. It is not entirely clear to me whether he considered the question of the likelihood that Dr. Lowman would give material evidence, but it does not appear so. [6] I begin by noting that counsel for Mr. Blais prepared a will-say statement which was before the Provincial Court judge. I am not clear how it could be that a summary of opinion evidence could be provided without input from Dr. Lowman. However, the Provincial Court judge was aware that the contents of the will-say statement were garnered from other sources, particularly from a submission made by Dr. Lowman to a government sub-committee. Dr. Lowman deals with that submission in para. 35. [7] For present purposes, I will assume that for purposes of s. 698(1) of the Criminal Code it is appropriate for the Court to have relied on such a will-say statement or indeed on an invited submission made to a House of Commons sub-committee on solicitation laws. Although I am prepared to do so, I have reservations about doing so as the role of an expert in proceedings before the Court is to be impartial. I do not say that this invited submission is not impartial, but the potential problems seem obvious. [8] As to arguments re compellability and necessity, I say first that I agree with the comments of Justice Cooke made in Seyfang v. G.D. Searle & Co., [1973] 1 All ER 290, and of Justice Clarke who quotes those comments in Application of Forsyth; Re Cordova v. Philips Roxane Laboratories Inc. (1984), 2 N.S.W.L.R. 327. Both justices were of the view that the English courts will not, as a general rule, require an expert to give expert evidence against his wishes in a case where he has no connection with the facts or the history of the matter in issue. [9] It is suggested on behalf of Mr. Blais that the decision of the Court of Appeal in Christensen v. Sinclair, 2002 BCCA 65, (sub nom. Sinclair v. March) 210 D.L.R. (4th) 170, is against the position now advanced on behalf of Dr. Lowman. I do not agree. As is apparent from the reasons for judgment of Dillon J.,the court did not decide the extent of the power in a litigant to compel expert testimony from an unwilling expert who does not otherwise have some tie to the litigation. I would note that Dr. Christensen had performed five operations on the plaintiff and the plaintiff was seeking to examine him pursuant to Rule 28, the doctor having declined to act as an expert. [10] On the issue of necessity, Dr. Lowman has clearly stated in his most recent affidavit that there are several academics who can provide similar evidence. Mr. Chouinard has challenged this, seemingly relying on Dr. Lowman's response to an email some months ago in which he said he did not believe that there is another expert who could be a "stand-alone" witness to provide the evidence that Mr. Chouinard appears to be seeking. But Dr. Lowman does not believe that he could be that stand-alone witness either. Accordingly, necessity was neither considered nor has it been established. [11] In respect of the next point, which is whether it is likely that the witness will give material evidence, Mr. Chouinard says that Dr. Lowman does not have conduct of the case and that it is not for Dr. Lowman or any other witness to determine what evidence is relevant or necessary. With respect, that submission misses the point. It is for Dr. Lowman to explain the basis of his opinion should he testify in any proceeding. Dr. Lowman says that his opinions are based upon 30 years of study. He describes the evidence as being complex and voluminous. If the approach of counsel does not allow Dr. Lowman to adequately present his evidence and the basis of his opinion, I do not even understand how it can be offered or why counsel would want to offer it. Mr. Chouinard said during argument that he did not know whether Dr. Lowman will stand by what is asserted in the will-say statement if he testifies. That alone says a great deal about the problem in the present matter. [12] Accordingly, I accede to the applicant's argument on what I will describe as the second issue. It is not necessary to address the final submission, that being whether or not it is in the interests of justice. In the end result, the subpoena is quashed. "Gill J."