R. v. Scott

2018 BCSC 1739 R. v. Scott

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Scott, 2018 BCSC 1739 Date: 20180815 Docket: X080205‑1 Registry: New Westminster Regina v. Randy William Scott Before: The Honourable Madam Justice Ker Oral Ruling on Voir Dire Re Admissibility of Proposed Expert Evidence of Dr. Gabor Maté Counsel for the Crown: R. Flannigan T. Iandiorio E. Lehrer Counsel for the Accused: T.E. LaLiberté, Q.C K.B. Wilkinson Place and Date of Trial/Hearing: New Westminster, B.C. July 6, 2018 August 7 & 8, 2018 Place and Date of Judgment: New Westminster, B.C. August 15, 2018 Introduction [1] This Ruling was delivered orally. It has since been edited for publication. The result has not been altered. [2] On this voir dire, the defence seeks to qualify Dr. Gabor Maté, a retired physician with special knowledge and experience in addiction medicine, to give expert opinion evidence as to: i. Randy William Scott's addiction disorders; ii. the origins of addiction rooted in early life trauma, including related conditions of asthma and attention deficit hyperactivity disorder ("ADHD"); iii. the psychological effect of addiction and relapse; and, iv. how these addiction issues relate to other psychiatric conditions specifically addressed by Dr. Kolchak and Dr. Levin. [3] The accused, Randy William Scott, is charged with one count of second degree murder contrary to s. 235(1) of the Criminal Code

("the Code"). There is no issue that Mr. Scott shot and killed Peter Bender in the early morning hours of December 19, 2015. The only issue the Court will be called upon to determine at the conclusion of this trial is whether the Crown has proven beyond a reasonable doubt that Mr. Scott had the requisite intent for second degree murder. [4] Mr. Scott's defence rests on the principles of the "cumulative effect defence", commonly known as the "rolled‑up charge" when referred to in the jurisprudence and raised in the context of a jury trial. The defence had its genesis in the Ontario Court of Appeal decisions in R. v. Clow (1985), 44 C.R. (3d) 228, and R. v. Desveaux (1986), 51 C.R. (3d) 173. [5] The defence in this case has already called a forensic psychiatrist, Dr. Andrew Kolchak, and a clinical psychiatrist, Dr. Alexander Levin, to provide opinion evidence addressing the issue of Mr. Scott's psychiatric conditions and his state of mind at the time of the offence. [6] As I understand the defence position, they will argue that the totality of the evidence adduced establishes the following in respect of Mr. Scott's personal circumstances at the time of the offence: · elements of intoxication; · mental disorder short of not criminally responsible by reason of mental disorder ("NCRMD"); · possible provocation; · despondency over a failed relationship; · addiction and relapse; ·

childhood trauma; and, · suicidal ideation. The defence will argue that these circumstances coalesced on the night of December 18 and the early morning hours of December 19, 2015, to produce a constellation of factors that together had a significant effect on Mr. Scott's mental state and impulse regulation. The defence will argue that as a result, the Crown is unable to establish that Mr. Scott had the requisite intent for murder when he shot Peter Bender four times with a 12‑gauge shotgun at close range while Mr. Bender was seated in his vehicle, parked across the street from the home of his girlfriend, Miranda Thomas. [7] The Crown opposes both the admissibility of Dr. Gabor Maté's proposed evidence and the qualification of Dr. Maté as an expert in this case. The Crown argues that at the threshold stage, he is not a properly qualified expert. At the second gatekeeping step of the analysis, if necessary, the Crown argues that the prejudicial effect of the evidence outweighs its probative value. Therefore, the Crown submits, Dr. Maté ought not to be qualified to give expert evidence and his evidence ought not to be admitted on the trial proper. The Proposed Expert [8] Dr. Gabor Maté is a retired physician. His curriculum vitae ("CV") was filed as Exhibit A on this voir dire and it is appended to this ruling as Appendix A. He started practising medicine in Vancouver in 1979

after graduating from UBC's School of Medicine in 1978. He was a family physician from 1979 to 2000, and the Medical Coordinator of the Palliative Care Unit at Vancouver General Hospital from 1990 to 1997. [9] Over the years, Dr. Maté developed a specialization in the study and treatment of addiction issues, practising in the Downtown Eastside (the "DTES") as a staff physician with the Portland Hotel Society from 1998 to 2011. Contemporaneously, he was a family practice consultant for the Department of Psychiatry at St. Paul's Hospital from 2008 to 2011. He retired from the practice of medicine in 2011. [10] Dr. Maté's credentials, based on his clinical experience, are impressive. His dedication, passion, and advocacy for treating and understanding addiction and childhood trauma issues is laudable. Despite his retirement, Dr. Maté has not removed himself from the study of and research in the field of addiction medicine and childhood trauma. Indeed, he is actively engaged in speaking on the issue including giving many presentations around the world at various conferences. His audiences include institutions of higher learning, medical societies, justice system participants, medical schools, and the like, as evidenced both by the contents of his CV and his viva voce evidence. [11] Dr. Maté is the author of four popular books. Particularly germane to this application is his last

book, In the Realm of Hungry Ghosts: Close Encounters with Addiction (Toronto: A.A. Knopf Canada, 2008) ("Hungry Ghosts"), a best‑selling book on the topic of addictions. Hungry Ghosts was named the "Common Book" of the year in the health faculties of the University of Washington in Seattle. Dr. Maté described the book as a combination of anecdotal episodes from his work with patients in the DTES, whereby he describes their lives including their childhoods. The book includes chapters on brain development and addiction, brain physiology of addiction, legal issues on addiction, harm reduction and treatment, and contains recommendations in terms of legal policy. [12] Dr. Maté is also the author of When the Body Says No: The Cost of Hidden Stress (Toronto: A.A. Knopf Canada, 2003) ("When the Body Says No"), a book on the interrelationship between physical illness and physical and emotional stress. When published, the thesis was considered controversial in the medical field, largely due, in Dr. Maté's view, to the gap in medical training on this topic. He testified that the topic has since started to gain acceptance in mainstream medicine. [13] Although retired from the practice of medicine since 2011, he remains a very busy seminar leader and public speaker in great international demand. As his CV notes under the heading "International Speaker", he "is highly sought after for his

experience on a range of topics, including addictions, stress and childhood development." [14] As I understood from Dr. Maté's evidence, many of these paid speaking engagements are hour‑long to days‑long conferences, workshops, and seminars that include a presentation component as either the keynote speaker, a presenter, or a workshop leader where he addresses the topics in the books he has written. For instance, he has spoken at seminars and conferences about the topic of addictions and his book Hungry Ghosts on at least nine occasions since August 2015, most recently at a conference in Northern Ireland in July 2018. He has undertaken similar speaking engagements on several occasions over the same time period, speaking about the topic of stress, childhood trauma, addictions, and his book, When the Body Says No. [15] Dr. Maté has also presented on at least one occasion to judges through the National Judicial Institute in Whitehorse, Yukon, in February 2015, although his CV does not provide information as to what topic was presented. Most recently in August 2018 while in Melbourne, Australia, he presented to a group of justice system participants who are team members of the Drug Court in Victoria. As well, in November 2017, he participated in a consultation meeting with government officials, addiction workers, and the Honourable Jane Philpott, Minister of Indigenous Services, on

the topic of trauma and substance use and child and family well‑being for Indigenous Canadians. [16] When presenting on the topic of addiction, Dr. Maté generally addresses the following topics: · the development of the human brain; · what constitutes addiction; · the brain physiology of addiction; · the psychology of addiction; · the motivation of the addict; and · how much conscious choice addicts have. He then addresses how to apply this knowledge in the context of treatment, including legal treatment. [17] On June 29, 2018, he was cited as a member of the Order of Canada. His investiture to the Order is yet to occur. The short citation reads: "[f]or his contributions to the fields of addictions and mental health as a physician, author, and advocate." [18] The formal citation put to him by Mr. La Liberté at the conclusion of his direct examination reads: Physician Gabor Maté. Gabor Maté's expertise and compassion have helped bring healing and restore dignity to people with addictions. An author, speaker and expert in addictions in trauma, he is well-known for his belief in the connection between the mind and body health and for his innovative approaches towards treatment. Notably, he worked with patients challenged with drug addiction, mental illness and HIV in Vancouver's Downtown Eastside for over a decade. Through his career, he has been a passionate advocate for social

change in the area of prevention and treatment of addiction. [19] Dr. Maté has never been qualified as an expert witness in court proceedings, although he has provided at least one medical-legal opinion in a capital murder case in the State of Arizona in the United States. Indeed, as I understood it, he has never testified in court as an expert witness on addictions or any other issue. He explained in his direct examination that he refuses most such requests because he does not have the time for it. In cross-examination, he reiterated this point, but added the following: Q And in the cases that -- criminal cases in Canada it appears you have provided opinions for defence counsel. Is that right? A First of all I provided very little evidence. I don't do this kind of stuff for reasons I've already explained. Q Right. You're too busy doing other engagements. A Yeah. And it's also -- to tell you the truth, the courts are wonderful for many things but coming to terms with human psychology, it's not one of their strengths as far as I'm concerned so it's not a process I really want to engage with too often. I was asked in this case by the defence. I looked at the case. I thought, yeah, I'll do it this time. [20] In his evidence, Dr. Maté described himself as a medical thinker. He conceded that he does not do primary or original research, but rather looks at the research and draws his

own conclusions and then writes about it. [21] In cross-examination, Dr. Maté acknowledged that he is not trained as a specialist, and in particular not trained as a pediatrician, neurologist, psychiatrist, psychologist, pulmonologist, or toxicologist. He conceded he has no forensic training and no training on how to conduct a forensic assessment interview. [22] While he respects the work of many psychiatrists and psychologists, he believes that most psychiatrists do not "receive the training that would help them to understand normal human functioning, nor the basis of human development or brain development." [23] He further explained that it was his opinion that most psychiatrists are not trained in some essential aspects of human life or human psychology. He further stated that while neurologists and psychiatrists learn about and have training in brain science (such as the anatomy and physiology of the brain circuits), they do not learn about brain development, its functionality in human beings, and how the brain develops in relation to its environment. [24] He reiterated this point at the recommencement of his evidence on August 7, 2018, when he stated that psychiatrists are not trained on the development of the human brain and environmental influences. Further, he notes that psychiatrists are not trained in the newer biology of addiction, how it arises, and how it is

related to human development. In Dr. Maté's opinion, this is a severe problem or shortcoming in the education of psychiatrists and medical students in general. [25] Similarly, Dr. Maté does not hold a very high opinion of the Diagnostic and Statistical Manual‑IV ("the DSM‑IV"), and has not examined the DSM‑5, as it was issued after his retirement. However, he testified that the British Psychological Society had issued a critique of the DSM‑5 which he shared. [26] Although his books have been the subject of book reviews in some major medical journals, he eventually acknowledged that his books have not been the subject of traditional scientific peer review. [27] When asked in cross-examination if he was passionate about the topic of addiction, Dr. Maté initially responded that he was passionate about a lot of things. He then asked Crown counsel what she meant by passionate, and then stated: Well, I'm interested in it. I study it. I have opinions about it. I have strong opinions about it. That's true. [28] As noted previously, Dr. Maté is no longer licensed to practice medicine, having retired as a physician in 2011. He was cross-examined about whether he was practising medicine in undertaking his assessment of Mr. Scott. Dr. Maté testified that he was not because he was not holding himself out as a practising physician, he did not offer or provide a diagnosis, and he did not

provide treatment or a medical‑legal opinion. It was his evidence that he was merely presenting an assessment about Mr. Scott's state of mind at the time, something he felt he was qualified to do and that did not require him to be a practising physician. [29] Dr. Maté has included in his report, Exhibit C on this voir dire, a variation on the standard certification paragraph for expert opinion reports, stating: I am aware of my duty to assist the court and provide fair, objective and non-partisan evidence. I prepared my opinion in conformity with my duty as an independent expert witness, and if called upon to give oral testimony, I will give that testimony in conformity with my duty. The Proposed Expert Evidence [30] If qualified as an expert, I understand Dr. Maté would provide evidence about the existence of childhood trauma as being one of the factors in the development of addiction disorders. Further, that family stressors can be contributing environmental and social causes leading to sensitive children developing asthma and/or ADHD. Finally, that childhood trauma can have a negative impact on brain development such that individuals who have experienced childhood trauma and developed addiction disorders have poor impulse regulation. [31] In effect, the defence seeks to tender Dr. Maté's opinion evidence to explain the impact of childhood trauma, addiction, and relapse

issues on the other psychiatric conditions that Mr. Scott is said to have, based on what the two defence psychiatrists have testified about. The inference to be advanced is that, given Mr. Scott's account of his childhood history, addictions, relapse, and related matters, his impulse regulation was severely compromised when he shot Mr. Bender in the early morning hours of December 19, 2015; as such, he did not have the requisite intent for murder. [32] Dr. Maté testified that the human brain is a social product, not determined simply by genetics, but influenced by environmental factors as well. He explained that there are certain necessary conditions for the healthy development of the brain which include healthy, nurturing relationships with responsive, emotionally available adults. Dr. Maté elaborated on this point by explaining that if childhood conditions are not optimal, then the development of certain brain circuits - the neurophysiology of it - including the connections and coherence of certain brain circuits can be negatively affected. Thus, childhood stress and trauma are important contributors to brain dysfunction and can manifest as addictions, amongst other disorders. He also explained that when you look at the "addicted brain", there are certain brain circuits that have been shown to be less functional in addicts as compared to non‑addicts. [33] Dr. Maté explained

that trauma is not what happens to an individual, but rather the individual's internal response to external events. These events can be negative experiences or the absence of positive experiences. In Dr. Maté's view, stress on parents is a source of childhood trauma. [34] Dr. Maté explained that the brains of addicts have been negatively impacted by early childhood experiences, such as trauma and stress. He notes that the brain continues to be negatively impacted by the addiction itself through the substances consumed (e.g., alcohol or drugs) or through the behaviour engaged in (e.g., gambling, shopping, viewing pornography). [35] Dr. Maté testified that addiction is a disorder of impulse regulation, and so the more an addict is an addict, the less impulse regulation they have. Addiction is categorized as a chronic primary brain disease. When an addict relapses, the stress regulation circuitry of the brain does not work and the addict is more likely to turn to the addictive substance or behaviour to soothe themselves of the stress. Thus the impact of relapse is a deep source of shame, upset, and further loss of self‑esteem. [36] Dr. Maté also explained that large‑scale studies have shown that illness in individuals is related to economic and social factors. Accordingly, if an individual experiences great adversity in childhood, the risk that he or she suffers from addiction,

depression, psychosis, ADHD, asthma, criminality, autoimmune disease, or cancer rises exponentially. Dr. Maté explained that stress and childhood trauma are not the only causes of these conditions, but they significantly increase the risk of developing these conditions. However, it is not a one‑to‑one relationship, given the presence of a variety of mitigating circumstances that moderate the impact of stress and childhood trauma. [37] Dr. Maté prepared a report for the defence dated May 25, 2018. The first paragraph of the report outlines the scope of Dr. Maté's engagement on this file: The following is in response to your request for an assessment of Mr. Scott concerning the homicide of which he is accused of. Your particular interest was in eliciting my evaluation of this defendant's state of mind at the time of the offense (sic) The issue, as I understand it, is that of intentionality. [38] In cross-examination, Dr. Maté was asked to explain his understanding of the intention for murder: Q And, sir, what is your understanding of what the intention for murder is? A Did he intend to kill somebody? Did he go to that home in order to murder somebody else? Did he harbour thoughts of revenge and rancor and malice towards the -- towards the victim? Was he conscious -- in a state of conscious and capable decision-making when he committed the act. This is what I mean by

intentionality. Q Anything else, sir? A I think that sums it up. Q That sums it up? A For me, yeah. Q In terms of what your understanding is of the intention to commit murder? A Yeah. Did he have thoughts of killing somebody when he went there or beforehand. THE COURT: Sorry, you're saying something before "thoughts." I can't hear what you said. A Sorry. THE COURT: You said something before "thoughts" and I can't -- I didn't hear what you said. A Did he have thoughts of killing somebody -- THE COURT: Oh, thank you. A -- before he went to the scene. And when he was at the scene was he in a state of being capable of forming a conscious intention. MS. IANDIORIO: Q To kill someone. A To kill someone, yeah. [39] Dr. Maté outlined in his report and testified that he concurred with the conclusions reached by the two defence psychiatrists, Drs. Kolchak and Levin. However, Dr. Maté was of the view that the two psychiatrists failed to explore issues of childhood trauma and other aspects of Mr. Scott's addiction disorder. [40] Dr. Maté's opinion is succinctly contained in the introductory summary and the conclusory paragraphs of his report: In brief, my opinion, to be explained below, is that Mr. Scott likely had no conscious intention to perpetrate the killing. Owing to factors of a., childhood trauma and its impact on brain development; b., long term addictive history and its impact on

brain functioning; c., a state of emotional imbalance in the weeks prior to the event; d., alcohol intoxication on the night of the killing; and e., an acute re-exacerbation of an old emotional wound, he was likely triggered into a mental state in which conscious intention was out of the question. [emphasis in original[ . . . To reiterate, I entirely support the opinions of the psychiatrists Kolchak and Levin. To their careful analysis of Mr. Scott's mental health, addiction history and pre-incident emotional state, I add the crucial impact of childhood trauma. Owing to these factors and under the disinhibiting effect of alcohol, I find it very likely that Mr. Scott acted in a tragically impulsive manner, literally "having taken leave" of his ["]senses" without malice aforethought, without any conscious intention to kill, and without any capacity to stop himself when the murderous and dissociative rage took over his mental functioning. Had he not found the sadly unfortunate Mr. Bender parked outside Ms. Thomas' home that night, it is clear that if any death had occurred, it would have been his own. [41] Insofar as Mr. Scott's statement that he went into a trance (when he arrived at Ms. Thomas' residence and came out of it after he shot Mr. Bender and left the area in his car), Dr. Maté explained in his report that: In fact, Mr. Scott is describing a well-known psychological

dynamic, best seen as a form of dissociative state. It is an outcome of trauma. To quote Dr. van der Kolk, "Neuroimaging studies of human beings in highly emotional states reveal that intense fear, sadness and anger all increase the activation of subcortical regions involved in emotions and significantly reduce activity if [sic] various areas of the frontal lobe, particularly of the mid-frontal cortex. When that occurs, the inhibitory capacities of the frontal lobe break down and people 'take leave of their senses.'" This was precisely Mr. Scott's state of mind just prior to and at the time he killed Mr. Bender. [emphasis in original[ [42] Thus it appears that if Dr. Maté is qualified as an expert and permitted to testify, the defence will seek to have him explain how childhood trauma and addictions negatively impact the human brain, such that there is compromised impulse regulation. He will further opine on the role of addictions relapse and, if permitted, intoxication and "old emotional wounds" that all coalesced in Mr. Scott on December 18 and 19, 2015. From there, the Court will be asked to infer that this particular constellation of factors compromised Mr. Scott's mental state at the time of the offence, such that he did not have the requisite intent for murder - the ultimate issue in this case. [43] Dr. Maté's opinion appears to rest in part on his adherence to the theory

that childhood trauma compromises brain development and that based on Mr. Scott's accounts of his childhood, he has experienced childhood trauma. His addictions to alcohol and gambling are indicia of childhood trauma and they likely have negatively impacted his brain development and functioning, particularly impulse regulation. [44] When coupled with Mr. Scott's self‑reported: i. emotional despondency over the loss of the relationship with Ms. Thomas, ii. relapse into gambling, iii. consumption of alcohol on the night of the events, and iv. active suicidal ideation in the week or two prior to the offence, it is the opinion of Dr. Maté that Mr. Scott was acting in a dissociative state and that he was likely triggered into a mental state in which conscious intention was out of the question at the time he shot and killed Mr. Bender. [45] It is important to note at this juncture that the only sources of information Dr. Maté relied upon in conducting this assessment and reaching this opinion were Mr. Scott's self-report in the May 14, 2018 interview, his review of the reports prepared by Drs. Kolchak and Levin, and the notes of Mr. Scott's counsellor, Ms. Thiessen. Dr. Maté did not review the text messages exchanged between Mr. Scott and Ms. Thomas or between Mr. Scott and Mr. Bender in the early morning hours of December 19, 2015 (Ex. #1, Appendix E, on the trial proper). It also

does not appear that he reviewed any other disclosure materials such as n Mr. Scott's medical records from his family physician or the report prepared by Dr. MacInnes in December 2015 for Mr. Scott's ICBC case. [46] During his evidence on July 6, 2018, Dr. Maté agreed his report was a medical‑legal report. However, when he continued his evidence in cross-examination on August 7, 2018, he resiled from that and denied his report was a medical‑legal report. He disagreed with the suggestion that he was diagnosing Mr. Scott with ADHD or that his opinion that Mr. Scott was in a dissociative state was a diagnosis. Indeed, when Dr. Maté started his evidence on August 7, 2018, he asked to address the Court on a few points in his previous evidence from July 6, 2018, including that he was not offering or providing a diagnosis for Mr. Scott. [47] Dr. Maté testified that he was pointing out that Mr. Scott had suffered from significant childhood trauma that had not been fully or properly elicited by the two defence psychiatrists. [48] Dr. Maté agreed that his 45‑minute audio‑recorded interview of Mr. Scott, (Ex. #C on this voir dire), was not a forensic assessment but felt that it was adequate time for what he was asked to assess - namely, the relationship between Mr. Scott's addictions, the commission of the offence and his state of mind, motivations, and related issues. [49] In contrast,

Dr. Kolchak, a forensic psychiatrist, testified in the trial proper that a forensic assessment requires open‑ended questions that do not suggest the answers in order to avoid confirmation bias with the individual being assessed. It was Dr. Kolchak's view that a proper assessment could not be conducted in less than one hour. His assessment of Mr. Scott took five and a half hours and was conducted on two different occasions with the second, shorter interview being conducted in order to confirm and clarify some information. [50] In cross-examination, Dr. Maté strongly disagreed with the Crown that he had used leading questions or questions that suggested the answer to Mr. Scott during the course of the interview. I will deal with this aspect of his evidence in the analysis portion of these reasons. [51] Before addressing the positions of the parties in this application, I propose to review the governing legal principles on the admissibility of expert opinion evidence. I am mindful that I have already issued a ruling in relation to expert evidence on Voir Dire Number 3, which addressed the qualifications of Dr. Alexander Levin. My review of the governing legal principles therein informs my analysis here and is incorporated by reference into this ruling without the need to repeat it. Governing Legal Principles [52] Opinion evidence, including expert opinion evidence, is

presumptively inadmissible. The party tendering the evidence must establish its admissibility on a balance of probabilities: R. v. Abbey, 2009 ONCA 624 at para. 71, leave to appeal ref'd, 2010 SCCA 125 ("Abbey 2009"). [53] The opinion rule limits a witness to state precisely and exactly what they have observed. It excludes opinions, which are inferences from observations, whether given by an expert or a layperson. It is, however, practically impossible to separate and make a distinction between fact and opinion. [54] Expert opinion evidence is an exception to the general exclusionary rule and is admissible - subject to satisfying the threshold admissibility test - when the subject matter is outside the experience and knowledge of the trier of fact and the expert will assist the trier of fact in reaching a correct conclusion about the matter. [55] The function of the expert is to provide the trier of fact with a ready‑made inference, which due to the technical nature of the subject, the trier is unable to formulate. When the trier of fact can make their own inferences without the assistance of the witness, this is when expert opinion evidence is unnecessary or superfluous: David Watt's Manual of Criminal Evidence, 2016 (Toronto: Thompson Reuters Canada Ltd., 2016) at Chapter 29.01, page 441 ("Watt's Manual"). [56] The legal principles governing the admission of expert opinion

evidence have evolved considerably since the modern test or framework for admission was articulated in the landmark decision of R. v. Mohan, [1994] 2 S.C.R. 9 ("Mohan"). In Mohan, the Supreme Court set out the well‑known four‑part test for admissibility which itself is an enhanced version of the Wigmore rules of necessity and reliability. The proponent tendering the opinion evidence must establish, on a balance of probabilities, the threshold requirements of admissibility, which include the following four criteria: i. logical relevance; ii. necessity to assist the trier of fact; iii. the absence of an exclusionary rule; and, iv. a properly‑qualified expert. [57] Additionally, where the opinion is based on novel or contested science or science used for a novel purpose, the party tendering the expert evidence must also show that the underlying science is reliable for that purpose: R. v. J.-L.J., 2000 SCC 51 ("J.-L.J."); R. v. Abbey, 2017 ONCA 640 at para. 48 ("Abbey 2017"). [58] Given the proliferation of expert evidence and more frequent resort to novel scientific evidence or science used for a novel purpose, the Supreme Court of Canada has required that this aspect be assessed under the first stage of the admissibility framework: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 23 ("White Burgess"); J.-L.J. at paras. 33 to 35; Abbey 2017 at para.

48. [59] When novel science or science used for a novel purpose is tendered, it is subject to special scrutiny by the courts: J.-L.J. at paras. 35 to 36. [60] As noted above, the onus is on the party tendering the witness as an expert to satisfy the Court on a balance of probabilities that the witness should be qualified as an expert and the proposed evidence admitted. As Dr. Maté is a proposed defence witness, the onus is on the defence to satisfy this burden. [61] Since Mohan, the jurisprudence has refined the Mohan framework into a two‑step analysis. The test for admissibility is now conducted under a two-step analytical framework. To be admissible, expert opinion evidence must: i. satisfy the four above enumerated preconditions to admissibility (the threshold Mohan inquiry); and ii. survive the cost‑benefit analysis by the trial judge (the discretionary gatekeeping step). [62] At this second stage, having regard to the risks inherent in admitting expert evidence, the trial judge decides whether the benefits to the fact‑finding process in the specific case warrant the admission of that evidence: White Burgess at para. 24; Abbey 2009 at paras. 76 to 79; R. v. Suarez-Noa, 2017 ONCA 627 at para. 78, leave to appeal ref'd, 2018 SCCA 142; Abbey 2017 at paras. 47 to 49. [63] One criterion that informs both the first‑step threshold admissibility analysis and the second‑step

gatekeeping function is the nature of the expert's duty to the Court to provide independent assistance by way of an objective, unbiased opinion: White Burgess. [64] In addition to Mr. Justice Laskin's succinct summary of the two‑step admissibility test for expert evidence in Abbey 2017 at paras. 47 to 49, the decision of Madam Justice Ross in R. v. Giles, 2016 BCSC 294, provides a comprehensive review of the principles that govern the admission of expert opinion evidence, at paras. 30 to 82. I do not propose to repeat all of what Ross J. wrote, but I have reviewed it. I adopt her analysis contained therein and will apply it to the circumstances of this current application. What I will repeat from the Giles decision is this: B. Expert Opinion Exception [31] One of the limited exceptions to the general exclusionary rule relates to expert opinion evidence. In circumstances in which the trier of fact will be unable to form his or her conclusions without help because of the nature of the facts at issue, an exception to the opinion rule may be made and expert opinion evidence admitted. It is the expert's function to provide the trier of fact with a ready-made inference from the facts which the trier of fact, due to the nature of the facts, is likely unable to formulate themselves: Abbey 1982 at 42. [32] As Justice Cromwell, for the Court, noted in White at para. 16, since at least

the mid-1990s the Court has responded to concerns about the impact on the litigation process of expert evidence of dubious value. [33] In response, as noted in White, the jurisprudence has steadily clarified and tightened the threshold requirements for admissibility and emphasized the role that judges should play as "gatekeepers" to screen out proposed evidence whose value does not justify the risk that might result from admission. C. Test for Admissibility [34] In R. v Mohan, [1994] 2 S.C.R. 9 [Mohan], the Court articulated a four-part test for the admissibility of expert opinion evidence. These criteria are: relevance, necessity, absence of an exclusionary rule and a properly qualified expert. [35] In Abbey 2009, the court divided the inquiry into two steps. In White, the Supreme Court of Canada essentially adopted this approach, which is described at paras. 23 and 24 as follows: [23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para.

47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283, 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396, at para. 72. [24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the "reliability versus effect factor" (p. 21), while in J.-L.J., Binnie J. spoke about "relevance, reliability and necessity" being "measured against the counterweights of consumption of time, prejudice and confusion": para.

47. Doherty J.A. summed it up well in Abbey, stating that the "trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence": para. 76. [65] And as Ross J. observed in Giles at paras. 54 to 55: [54] While the basic test identified in Mohan has not changed, in the intervening years it has become clear that the expert must be qualified to express the specific opinion proffered. The expert must be confined to express opinions within the scope of that qualification. Finally, there must be an evidentiary foundation to support the qualification and scope, see R. v. Orr, 2015 BCCA 88. [55] It is well established that formal training or certification is not a requirement for qualification as an expert, see R. v. Marquard, [1993] 4 S.C.R.

223. There is, as well, a substantial body of case law to support the admission of expert evidence from police officers whose qualification derives from their working experience, see Sekhon. . . . Positions of the Parties Defence Position [66] Counsel for Mr. Scott proffers Dr. Maté as a medical doctor with special knowledge and experience in addiction disorders, childhood trauma, and how those conditions impact the development of the human brain and its functioning. As noted in the introduction to this ruling, the defence seeks to have Dr. Maté qualified as an expert witness capable of providing an opinion in the following areas: i. Mr. Scott's addiction disorders; ii. the origins of addictions rooted in early‑life trauma (including related conditions of asthma and ADHD); iii. the psychological effect of addiction and relapse; and, iv. how these addiction issues relate to other psychiatric conditions specifically addressed by Dr. Kolchak and Dr. Levin. [67] Mr. La Liberté asserts that Dr. Maté is a properly‑qualified expert who has gained his experience through decades of work as a family practitioner where his practice focused on caring for the most vulnerable in the Lower Mainland, the residents of the DTES. Mr. La Liberté further points to the experience Dr. Maté has gained through the books he has written and through his speaking schedule at various conferences around the

globe, specifically addressing issues of addiction and childhood trauma. [68] The defence argues that it has discharged its burden under both steps of the two‑step analytical framework mandated by the jurisprudence since Abbey 2009 and White Burgess. In respect of the Crown's argument that Dr. Maté is not a properly‑qualified expert because he is biased and not impartial, the defence asserts that although Dr. Maté may have presented as defensive and even angry at times in his evidence, for the most part he was objective and impartial. Insofar as the Crown asserts that Dr. Maté relies upon science for a novel purpose, the defence argues that there is no evidence to support the Crown's thesis on this aspect of the threshold admissibility test. Crown Position [69] Crown counsel opposes the qualification of Dr. Maté as an expert witness, arguing that Dr. Maté's evidence does not meet the threshold requirements under the first stage of the admissibility inquiry and, as such, should be excluded. The Crown asserts the defence has not established that Dr. Maté is a properly‑qualified expert in the areas in which they seek his opinion. [70] The Crown further asserts Dr. Maté is not a properly‑qualified expert because he is not impartial, independent, or unbiased when offering opinions in relation to the areas proposed by the defence. Additionally, at the threshold stage of the

admissibility analysis, the Crown asserts Dr. Maté's opinions involve science used for a novel purpose and the defence has failed to establish that the underlying science is reliable for that purpose. [71] In the alternative, the Crown argues that if the Court finds that Dr. Maté's evidence does satisfy the threshold admissibility requirements under the first stage of the two‑step analytical framework, his evidence should be excluded under the second step of the analytical framework, the discretionary gatekeeping stage. [72] The Crown argues that Dr. Maté's evidence is too unreliable to be legally relevant and necessary to the issues in this case, and that he is not an impartial, independent, or unbiased witness. The Crown says that all of this demonstrates that the potential prejudicial effect and the consumption of time, prejudice, and confusion outweighs the minimal probative value of this evidence. Consequently, the Crown argues Dr. Maté should not be qualified to give the expert evidence in the areas proposed by the defence and his evidence ought not to be admitted in the trial. Analysis [73] With the governing legal principles of the two‑step test for admissibility of expert opinion evidence (as articulated in White Burgess and reiterated in Giles and Abbey 2017) informing my analysis, I turn to the application of the two‑step admissibility test to the evidence of Dr.

Maté. If Dr. Maté is qualified as an expert and permitted to testify at this trial, it is clear from his evidence on this voir dire, as contained both in the report filed, Exhibit C, as well as his viva voce evidence, that the defence intends to elicit an opinion that goes well beyond the general area of addiction disorders, childhood trauma, and how such issues impact on the psychiatric diagnoses proffered by the two defence psychiatrists. [74] Dr. Maté in his report has opined on Mr. Scott's mental state at the time of the offence, which is the ultimate issue in this case. His opinion appears to be that due to the existence of childhood trauma in Mr. Scott's formative years, his brain development was likely compromised. His addictions to alcohol and gambling are indicia of childhood trauma and they have negatively impacted his brain functioning, particularly in respect of impulse regulation. [75] When coupled with Mr. Scott's self‑reported emotional despondency over the loss of the relationship with Ms. Thomas, his relapse into gambling, his consumption of alcohol on the night of the offence, and his active suicidal ideation in the weeks prior, it is the opinion of Dr. Maté that Mr. Scott was acting in a dissociative state and was likely triggered into a mental state in which conscious intention was out of the question. [76] At the threshold stage of the inquiry, the primary

issue from the Crown's perspective is whether Dr. Maté is a properly qualified expert. Relevance, necessity, and absence of an exclusionary rule were peripheral matters not strictly in issue. Rather, the Crown argued that the real issue in this case was whether the defence had discharged its burden of satisfying the Court on a balance of probabilities that Dr. Maté is a properly qualified expert. The Crown also asserts that where Dr. Maté's evidence moves into use of science for a novel purpose, the defence has not shown that the underlying science is sufficiently reliable. [77] The Crown argues that the defence has not satisfied its burden on either of these criteria under the threshold admissibility stage of the analytical framework. [78] I turn first to consider whether the defence has discharged its burden of satisfying the Court on a balance of probabilities that Dr. Maté is a properly qualified expert under the threshold admissibility branch of the two‑step analytical framework. The jurisprudence makes clear that there are two components to the properly qualified expert criterion: i. is the subject matter the proposed expert will proffer an opinion upon properly within the witness's field of expertise ("the scope of the expertise issue"); and, ii. is the expert willing and able to fulfil the expert's duty to the court to provide evidence that is impartial, independent,

and unbiased: Abbey 2017 at para. 48. [79] I will address the issue of the scope of the expertise first, and then move to an examination of the expert's duty. Is the subject matter of Dr. Maté's opinion within his area of expertise? [80] The fact that Dr. Maté is widely viewed as an expert in addictions and childhood trauma issues in parts of the medical community and is constantly presenting on these topics to a variety of medical and legal organizations around the world does not ipso facto mean he is an expert witness capable of proffering expert opinion evidence in court. [81] Indeed, Mr. Justice Willcock recently reiterated this in R. v. Horswill, 2018 BCCA 148, where he noted: [62] The jurisprudence is rife with examples of cases in which the courts have wrestled with expert evidence of behavioural scientists. In R. v. McIntosh (1997), 35 O.R. (3d) 97 at 102‑3 (C.A.), Finlayson J.A. noted: In my respectful opinion, the courts are overly eager to abdicate their fact-finding responsibilities to "experts" in the field of the behavioural sciences. We are too quick to say that a particular witness possesses special knowledge and experience going beyond that of the trier of fact without engaging in analysis of the subject-matter of that expertise. [S]imply because a person has lectured and written extensively on a subject that is of interest to him or her does not constitute him

or her an expert for the purposes of testifying in a court of law on the subject of that specialty. [emphasis added] [82] The issue of the scope of expertise of a witness has come under increasing scrutiny in the jurisprudence, and the appellate authorities direct that trial judges must remain vigilant in ensuring experts do not stray from the scope of their expertise when providing opinion evidence. This observation was addressed by Ross J. in Giles at para. 54 (cited previously in para. 65 of this ruling). [83] In R. v. Pham, 2013 ONSC 4903, Mr. Justice Durno dealt with the issue of expert evidence with respect to the scope of an RCMP officer's expertise. In this case, the Crown sought to qualify the RCMP officer as an expert witness in the methods of consumption and distribution of heroin and a variety of related topics, including habits and behaviours of heroin users. The officer was permitted to give expert evidence in relation to certain matters, such as methods of consumption and distribution, but was not qualified to give evidence on the effect of heavy heroin use and whether the symptoms of the accused in that case were consistent with such use. [84] In the course of the decision in Pham, Durno J. provides a non‑exhaustive list of factors to consider when determining whether a witness is qualified, stating: [31] In summary, the following non-exhaustive list of factors

assist in determining whether a tendered expert witness is qualified: - the manner in which the witness acquired the special skill and knowledge upon which the application is based; - the witness' formal education (i.e. degrees or certificates); - the witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons); - the witness' membership and participation in professional associations related to his or her proposed evidence; - whether the witness has attended additional courses or seminars related to the areas of evidence in dispute; - the witness' experience in the proposed area(s); - whether the witness has taught or written in the proposed area(s); - whether, after achieving a level of expertise, the witness has kept up with the literature in the field; - whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whether the previous evidence was contested; - whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and - whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence. [85] In Giles at paras. 62 to 63, Ross J. employed this approach from Pham as part of her assessment of a proposed Crown expert's scope of expertise,

particularly on matters germane to the structure and composition of the Hells Angels. In the end, the proposed expert was permitted to give certain aspects of his opinion but prohibited him from providing opinion evidence in other areas that strayed beyond the scope of his expertise. [86] Moreover, at the balancing stage in the second step of the analytical framework, Ross J. had significant concerns that the proposed evidence was "simple, and not necessarily balanced, anecdotal evidence" that was assuming the role of expertise and that there was an absence of any stated facts to support the areas of opinion in issue: Giles, para. 169. [87] In my view, there are two issues with respect to the scope of Dr. Maté's expertise. First are the areas where his opinion strays into subject matter outside the field of his expertise; and second, the limitations that his retirement from the practice of medicine in 2011 place on his ability to proffer the opinion the defence proposes to tender in this case. [88] In applying the Pham factors to Dr. Maté's evidence to determine the scope of his expertise, it must be remembered that Dr. Maté is a retired medical doctor who ceased his clinical practice in 2011. He is no longer a licensed member of the College of Physicians and Surgeons permitted to engage in the practice of medicine. Dr. Maté's experience and knowledge in the area of addiction

medicine comes from years of clinical practice treating and counselling patients with addiction issues and childhood trauma. His knowledge and expertise have also been developed through personal experience, namely his many years of researching the literature, finding a gap in medical thinking and writing about it in his books that seek to explain the issues to the public. [89] He is a sought‑after speaker on the topic of addiction and childhood trauma as a paid speaker at conferences, workshops, and seminars around the world. Notwithstanding his immersion in the field of addiction medicine and his ascribing to the theory that childhood trauma is the root of addictions and other physical disorders, it is important to recall that he has not done original research in this area. Rather, he relies on the research of others and comes to his own conclusions about it. [90] Finally, although the books he has written are popular and best sellers, they have not been the subject of scientific peer review. [91] Dr. Maté acknowledged in his evidence that he is not trained as a pediatrician, neurologist, psychiatrist, psychologist, toxicologist, or pulmonologist. Moreover, he agreed these specialities require additional residency and training, and that he has not trained to be a specialist. Dr. Maté also conceded that he has no forensic training and no training on how to conduct a forensic

assessment or interview. Significantly, his clinical experience ended in 2011. [92] Dr. Maté has never been qualified to give expert opinion evidence in court. As I understood his evidence, his reason for not doing so is that he has previously refused to testify in court because he is too busy with speaking engagements. Moreover, and perhaps somewhat surprisingly, he testified he has little faith in the ability of the courts to "come to terms with human psychology as it is not one of their strengths." [93] While that may be Dr. Maté's personal view, it is a startling proposition to share with the Court in the course of giving evidence on a voir dire when one's qualifications are being scrutinized. It contains a strong element of grandiosity that lends weight to the concern over a lack of impartiality. Indeed, in my view, such an attitude blinds him to his obligation of impartiality and his duty to the Court as an expert witness. Moreover, such a view tends to suggest that Dr. Maté believes that his opinion is the correct view and the courts are simply unable to get it right because they do not understand human psychology. [94] At its core, the defence seeks to have Dr. Maté provide opinion evidence on how childhood trauma impacts brain development, that conditions such as addiction, asthma, and ADHD are indicators of childhood trauma, and further, that with addiction issues the

patient usually has compromised brain function, specifically in the area of poor impulse regulation. When considered in the context of the totality of the evidence in this case, Dr. Maté's opinion is said to be proffered to assist the Court on the issue of Mr. Scott's intention at the time he shot and killed Mr. Bender. [95] I am of the view that the areas that the defence seeks to have Dr. Maté provide opinion evidence go well beyond his expertise and training as a family physician with a specialization in addiction medicine. From the tenor of his report and the viva voce evidence adduced on the voir dire, it is clear that the defence is seeking to have Dr. Maté provide evidence well beyond the scope of his clinical experience as a family practitioner and a physician treating addiction issues. The areas that Dr. Maté's opinion trenches upon include the field of pediatrics, psychiatry, forensic psychiatry, psychology, child psychology, neuropsychology, neuropsychiatry, neuroscience, toxicology, and pulmonology - all such areas that require specialized training which Dr. Maté has not undertaken. [96] More particularly, and specifically in relation to the issue of Mr. Scott's state of mind at the time of the offence, an area he opined on in his report and in his evidence on the voir dire, that is more properly the province of specialists trained in forensic psychiatry,

neuropsychiatry, forensic psychology, and neuropsychology. [97] A further component to the scope of the expertise in this case is the issue of whether Dr. Maté is potentially in violation of s. 81 of the Medical Practitioners Act, RSBC 1996, c. 285 as incorporated into the Health Professions Act, RSBC 1996, c. 183 through the promulgation of the Medical Practitioners Regulation, BC Reg. 416/2008 at s. 4(2), as explained in College of Physicians and Surgeons v Tan, 2017 BCSC 2233 at paras. 5 to 9. [98] The issue was explored extensively in his cross-examination. The Crown contends that in interviewing and assessing Mr. Scott and preparing the opinion report that he did, Dr. Maté has engaged in the practice of medicine, an activity prohibited by s. 81(1) and (2)(b) of the Medical Practitioners Act, which provides: 81 (1) A person who practises or offers to practise medicine while not registered or while suspended from practice under this Act commits an offence. (2) For the purposes of and without restricting subsection (1), a person practises medicine who does any of the following: . . . (b) diagnoses, or offers to diagnose, a human disease, ailment, deformity, defect or injury, or who examines or advises on, or offers to examine or advise on, the physical or mental condition of a person; [99] Dr. Maté is no longer licensed by the College of Physicians and Surgeons to practice

medicine in British Columbia. He retired from the profession in 2011. Dr. Maté made it clear in his evidence that it was his view he was not in violation of these provisions, as he was not providing a diagnosis. Rather, he was conducting an assessment of Mr. Scott's addiction issues and childhood trauma, and how they impacted Mr. Scott's state of mind at the time of the offence - two areas he felt the defence psychiatrists failed to explore. [100] As I noted earlier, Dr. Maté agreed on July 6, 2018 that his report was a medical‑legal report, and then on August 7, 2018, resiled from that characterization. Defence counsel was of the view that it did not matter whether the report is a medical‑legal report or not, and then suggested that if it is not a medical‑legal report, it is a psychiatric report. In my view, it would be completely beyond the scope of Dr. Maté's expertise, training, and experience to provide a psychiatric opinion in this case. [101] Moreover, and with respect, I would have to disagree with Dr. Maté's view that he has not diagnosed Mr. Scott. His report states that he confirms or concurs in the diagnoses offered by the two defence psychiatrists which, in and of itself, requires a diagnostic assessment of the information underlying those diagnoses. If Dr. Maté truly did not engage in diagnostic activities when conducting his assessment of Mr. Scott, then it is

difficult to conceive how his opinion about how Mr. Scott's childhood trauma, addictions, and relapse issues informed his state of mind at the time of the offence is relevant. If all he is doing is confirming the diagnoses of the other two defence psychiatrists, his evidence is unnecessary. [102] More significantly, in my view, Dr. Maté is not just confirming the diagnoses of the two defence psychiatrists. Indeed, it was his evidence that the two psychiatrists had failed to explore the crucial issues of childhood trauma and its contribution to Mr. Scott's addiction, a factor that Dr Maté contends only he had properly probed. Accordingly, the overall thrust of his interview, report, and parts of his cross-examination would support the conclusion that he has examined and advised on the mental state of the accused at the time of the offence, something strictly within the province of licensed forensic psychiatrists and forensic psychologists. Dr. Maté is no longer licensed to practice medicine and he has never been licensed as a forensic psychiatrist or a forensic psychologist. [103] In my view, Dr. Maté is not properly qualified to provide expert opinion evidence on the matters contained in his report and viva voce evidence for two reasons relating to the scope of his expertise: i. He is not a forensic psychiatrist, forensic psychologist, or neuropsychologist, or a specialist

trained in any of the other areas that his opinion on addictions and childhood trauma encroach upon. What the defence seeks to elicit from him more properly is within the scope of training and knowledge of those experts; and, ii. He is no longer licensed to practice medicine and, as such, is precluded from examining or advising on the mental condition of Mr. Scott's state of mind at the time of the offence, insofar as childhood trauma, addiction, and relapse issues inform the psychiatric conditions that Drs. Kolchak and Levin have diagnosed. Is Dr. Maté able to discharge his duty to the Court as an independent, impartial, and unbiased expert? [104] As has been made clear in White Burgess (para. 45) and in Abbey 2017 (para. 55) an expert's lack of impartiality and independence go to the admissibility of the expert's evidence, as well as to its weight if admitted. At the admissibility stage, it factors into both steps of the admissibility analytical framework: these qualities are relevant to the threshold requirement of a properly‑qualified expert, and they are again relevant at the gatekeeper balancing stage. [105] As Mr. Justice Cromwell noted in White Burgess at paras. 47-49, satisfying the threshold stage of the properly qualified expert is not onerous and can usually be met by having the expert either attest to or testify on oath as to their awareness of their duty to the

Court and their acceptance of or willingness to comply with that duty. [106] Rarely will a proposed expert's evidence be ruled inadmissible at this stage as Cromwell J. so noted in White Burgess: [49] This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in

his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence. [50] As discussed in the English case law, the decision as to whether an expert should be permitted to give evidence despite having an interest or connection with the litigation is a matter of fact and degree. The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert's interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance. [107] Where an expert is challenged for bias, partiality, or lack of

independence at the qualified expert stage of the analysis, the onus shifts to the party challenging the admissibility of the evidence - here the Crown - to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable and/or unwilling to comply with that duty. Where the Crown succeeds in doing this, the burden to establish on the balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence: White Burgess (paras. 48 to 53). [108] Dr. Maté was not asked during his viva voce evidence as to whether he understood his duty to the Court and his willingness to comply with that duty. He was, however, vigorously cross-examined by the Crown on many aspects of his opinion and research, and during the course of his evidence was markedly defensive, argumentative, and bordering on dismissive or contemptuous of the Crown's approach. [109] In short, he presented more as an advocate on addiction and childhood trauma issues than an impartial, independent, and unbiased expert. His views on the seeming inability of the courts to come to terms with human psychology only serves to reinforce this conclusion. [110] In civil proceedings, Rule 11‑2 of the British Columbia Supreme Court Civil Rules requires experts to certify that they are aware of and will comply with their duty to the

Court: Rule 11-2 -- Duty of Expert Witnesses Duty of expert witness (1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party. Advice and certification (2) If an expert is appointed under this Part by one or more parties or by the court, the expert must, in any report he or she prepares under this Part, certify that he or she (a) is aware of the duty referred to in subrule (1), (b) has made the report in conformity with that duty, and (c) will, if called on to give oral or written testimony, give that testimony in conformity with that duty. [111] Although the trial of Mr. Scott is not a civil case, the expectation of expert witnesses under the modern formulation of the expert opinion rule to honour their duty to the Court is not confined to the realm of civil proceedings: Abbey 2017 (para. 48). [112] I noted earlier in these reasons that Dr. Maté includes a limited statement in his report of May 25, 2018, that is a variation on the Civil Rules certification requirement. Ordinarily this might be sufficient to pass the threshold admissibility requirement for a properly‑qualified expert. As Cromwell J. noted in White Burgess, exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable

and/or unwilling to provide the Court with fair, objective, and non‑partisan evidence. [113] Regrettably, I have grave reservations about Dr. Maté's ability to fulfil his duty to the Court as an expert based largely on the argumentative and defensive approach the witness adopted in his evidence on cross-examination on the voir dire: White Burgess (paras. 26-49, 52-53). [114] Accordingly, my assessment of his ability to honour his duty to the Court cannot be confined to the summary statement in his report that he will do so. Significantly, despite including the standard independent expert disclaimer in his report, I regret to observe that Dr. Maté's manner of testifying was anything but professional and objective. When challenged on a topic, he resorted to answering with questions or not answering the question put to him. Throughout his cross-examination, he was defensive, argumentative, and at points angry. [115] At the continuation of his cross-examination on August 7, 2018, he explained that it was not easy to stand in the witness stand and face adversarial questioning and, as such, he was concerned that some of his answers were not as full or accurate as he felt they should be. He was given an opportunity to amplify and correct areas that concerned him. [116] Notwithstanding the clarifications at the recommencement of his cross-examination, Dr. Maté quickly became extremely

defensive and argumentative, and this was so palpable on the morning of August 7 that he had to be advised by the Court that he was not under personal attack. Rather, Crown counsel was simply testing his credentials through cross-examination as the Crown is entitled and expected to do. He was directed to answer the questions being put to him. Notwithstanding my admonition to answer the questions and not to take the matter as a personal attack, Dr. Maté soon reverted to a defensive and argumentative posture as his cross-examination continued, particularly when it was put to him that his interview of Mr. Scott contained suggestions or leading questions. [117] Dr. Maté disagreed with that proposition and said they were questions designed to elicit further information that he felt was needed and had been overlooked or not pursued by Drs. Kolchak and Levin. In fact, Dr. Maté was very defensive in his answer to the suggestion that he was using leading questions in the interview. He was argumentative with the Crown and said he was not suggesting anything to Mr. Scott in the interview; rather, he was asking meaningful questions that would provide answers to assist him in ascertaining Mr. Scott's degree of awareness at the time of the offence. [118] Insofar as leading questions during the assessment interview are concerned, the transcript of the interview speaks for itself. In my view,

an examination of the interview transcript reveals that there are, at minimum, ten instances of leading questions, that is, questions that suggest the answer being sought. Three examples of those leading questions include: i. Where Mr. Scott describes his mother as overprotective, Dr. Maté suggests this can be viewed as controlling, and Mr. Scott thereafter adopts that characterization. Further, Dr. Maté introduces the notion that this made Mr. Scott feel angry, which Mr. Scott also adopts (Ex. #B, p. 12). ii. When Mr. Scott describes being in a trance during the shooting, Dr. Maté asks, "Did you, was there part of you observing yourself doing it?" And Mr. Scott responds that it was like an out‑of‑body experience (Ex. #B, p. 2). iii. Dr. Maté has Mr. Scott describing himself as a student (Ex. #B, p. 25). But then questions Mr. Scott about whether he had trouble with his attention span, sitting still, and being told by the teacher that he could do better if he paid attention or applied himself more (Ex. #B, p. 26). Mr. Scott answered affirmatively to these leading questions. These latter questions and Mr. Scott's affirmative answers appear to be the foundation for Dr. Maté's opinion outlined in his report that there is "at least strongly presumptive evidence" that Mr. Scott had ADHD as a child (Ex. #C, p. 5). [119] Finally, at the conclusion of his interview with Mr. Scott, Dr.

Maté advises he wants to do a summary of his understanding of what Mr. Scott has told him by encapsulating it for him (Ex. #B, p. 28). [120] Thereafter, he summarizes and provides his interpretation of what Mr. Scott has told him from the interview (Ex. #B, pp. 30 to 34). The summation, with respect, is entirely inappropriate and beyond the purview of what any expert assessing an individual in a criminal case should do. [121] Overall, Dr. Maté's approach to his interview of Mr. Scott, as evidenced in the transcript created from that interview, is particularly troubling. In parts, it reads like a counselling session. In parts, it reads as an individual approaching an interview with a particular thesis in mind and then asking questions to confirm that thesis. The last few pages of the transcript of the interview that Dr. Maté described as his summation or encapsulation of the interview read like Dr. Maté is providing Mr. Scott with the foundational components for his evidence and defence in this trial, and in a number of passages Dr. Maté can be seen to be suggesting to Mr. Scott what his conditions and feelings might be. It most certainly is not a forensic assessment. [122] To that end, it appears Dr. Maté's interview may well have contaminated Mr. Scott's memory, such that he appears to have adopted aspects of what Dr. Maté told him about his interpretation of his childhood.

Moreover, in conducting this summation, I have grave concerns that Dr. Maté's approach appears to have solidified in Mr. Scott's mind certain features about his childhood that may or may not be accurate, given Dr. Maté's particular perspective on childhood trauma and addictions. [123] Finally, throughout his cross-examination, Dr. Maté repeatedly indicated in his answers to the Crown's questioning words to the effect of, "I would argue with you that", further demonstrating a lack of understanding of his role as an expert witness. [124] In the end, I am not satisfied that Dr. Maté is a properly‑qualified expert. His opinion strays into areas not properly within the scope of his expertise and training and significantly, he presented not as an independent and impartial expert who understands his duty to the Court, but rather as an advocate on the issues of childhood trauma and addictions and how those conditions have affected Mr. Scott. [125] As such, in my view, he is clearly unwilling and/or unable to carry out his primary duty to the Court: White Burgess (para. 49). [126] Accordingly, I find that Dr. Maté is not a properly qualified expert under the Mohan threshold admissibility stage of the analytical framework and his evidence is not admissible. [127] As I have concluded that Dr. Maté is not a properly qualified expert at the threshold admissibility stage, it is not necessary

to address the Crown's argument on use of science for a novel purpose. Similarly, it is not strictly necessary to engage in the second step of the admissibility analysis, the gatekeeper function. For completeness, however, I will simply note that had I found Dr. Maté to be a properly qualified expert, I would still have excluded his evidence in the balancing exercise at the gatekeeper stage of the analytical framework, primarily because I am of the view that Dr. Maté's conduct in his manner of testifying on this voir dire unequivocally establishes that he views his role to be that of an advocate on addiction and childhood trauma issues, thereby demonstrating bias and a lack of impartiality contrary to the expert's duty to the Court. [128] Accordingly, his evidence would be of little to no probative value. Its admission would distort the trial process rather than enhance it, and would result in much lengthier proceedings, given Dr. Maté's seeming inability to directly answer questions in cross-examination, coupled with his predilection to engage in a defensive and argumentative approach when challenged on his opinion. Conclusion [129] For the foregoing reasons, I decline to qualify Dr. Gabor Maté as an expert in the areas sought by the defence. While Dr. Maté is a well‑regarded family physician, author, and sought‑after public speaker who has conducted ground‑breaking work in

the areas of treating HIV patients, addictions, childhood trauma, and the interrelationship between addictions, childhood trauma, and psychological well‑being, his approach in this case is far from what is expected of an independent and impartial expert. [130] Given all of the foregoing, I am not persuaded that Dr. Maté's evidence should be admitted. In the result, the defence application to call Dr. Maté as an expert witness in this case is dismissed and his evidence is inadmissible. "Ker J." Appendix "A"