BACKGROUND: From a previous post of this Blog.The introduction of expert evidence at a dangerous offender proceeding is central to the hearing, where the Crown must prove to the sentencing judge that the offender poses a risk to public safety and is highly likely to reoffend. The consequence of a dangerous offender designation can be the imposition of an indeterminate sentence, which is the equivalent of a life sentence. It’s the most serious sentence in Canadian law, said Toronto defence lawyer Amy Ohler, who has appeared in numerous dangerous offender hearings and appeals and is not involved in the Nettleton case. (She notes an indeterminate sentence is not mandatory for dangerous offenders, and judges can impose a determinate prison sentence with a long-term supervision order.)
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He says that in cross-examination, Woodside initially “doubled down” on the factual inaccuracies, arguing that they, in fact, did apply to Nettleton, “although in a pretty circuitous way.” When Embry revealed that they had the report from which the section originally came, Woodside “tripled down” and admitted that while they were from a different report, they also fit Nettleton’s case. “More problematically, I think, was that once these mistakes were revealed to him, he didn't take time to reconsider his opinion,” says Embry. “I asked him, ‘Does all this stuff change your opinion? Or might it?’ And he just said, immediately, no.”
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GIST: "The Court of Appeal for Ontario has ordered a new hearing on a dangerous offender’s sentencing after the forensic psychiatrist whose testimony grounded the sentence was found unreliable in another case.
In R. v. Hason, 2024 ONCA 369, the appellant, who was 27 at the time, was convicted for a sexual assault involving a 15-year-old girl. The trial judge also designated him a dangerous offender and imposed an indeterminate prison sentence lasting for the remainder of the appellant’s life unless he is paroled. The trial judge’s decision was based on the expert testimony of a psychiatrist from the Centre for Addiction and Mental Health, Dr. Scott Woodside.
The appellant appealed the conviction, the dangerous defender designation, and the sentence. Based on the appellant’s and the Crown’s submissions, the Court of Appeal initially believed none of the grounds of appeal were meritorious.
However, following the oral hearing, Woodside’s credibility was called into question by R. v. Nettleton, 2023 ONSC 3390. The case revealed that Woodside took a “careless” approach to dangerous offender reports and treated a crucial section of the reports as “boilerplate,” said Chief Justice Michael Tulloch, who wrote the reasons for the court.
The appeal court invited submissions on Woodside’s reliability. While both responded with submissions, neither believed Nettleton should impact the case, as argued.
Richard Litkowski, who acted for the appellant in Hason, says it was the first opportunity for the appeal court to assess the impact of the Superior Court’s findings in Nettleton. In that case, Woodside had copied and pasted a portion of a report from another case, attributing characteristics to the Nettleton’s record – such as gang affiliation – that were not present.
“This led to serious errors in Nettleton that Dr. Woodside was not prepared to acknowledge,” says Litkowski.
Unreliable expert evidence is a “serious concern” for the justice system, as “report after report” has demonstrated, said Tulloch. Unreliable expert evidence can lead to miscarriages of justice and while all justice system participants must guard against these risks, “judges are the last line of defence,” he said.
Dean Embry acted as amicus curiae in the Nettleton case. When he looked at Nettleton’s dangerous offender report, he and his colleagues noticed various errors and tracked down the original report from which some had been copied.
“It became obvious that huge sections and the analysis section – the most important section of Nettleton report – had large portions of the previous report in it,” says Embry, a lawyer in Toronto at Embry Dann LLP.
He says that in cross-examination, Woodside initially “doubled down” on the factual inaccuracies, arguing that they, in fact, did apply to Nettleton, “although in a pretty circuitous way.” When Embry revealed that they had the report from which the section originally came, Woodside “tripled down” and admitted that while they were from a different report, they also fit Nettleton’s case.
“More problematically, I think, was that once these mistakes were revealed to him, he didn't take time to reconsider his opinion,” says Embry. “I asked him, ‘Does all this stuff change your opinion? Or might it?’ And he just said, immediately, no.”
He says Woodside’s intransigence was a primary factor in Justice Laura Bird’s ruling in Nettleton. The ruling noted that an expert’s unwillingness to reconsider their position and to be open and forthright indicates that the expert is not living up to their duty to the court to be objective. This carries the risk for miscarriages of justice, says Embry.
“Their duty is to be objective,” he says. “They really are the court’s expert. They're not meant to advocate for one side or the other. They're meant to be open-minded towards other opinions throughout the process, including when they're reviewing the material. When they're being cross examined, they're not supposed to advocate for any point of view, not even their own.”
In Hason, after designating the appellant as a dangerous offender, the trial judge had to impose one of three sentences: an indeterminate sentence, a determinate sentence, or a determinate sentence with a long-term supervision order. Tulloch said Woodside’s evidence was critical at this stage. Woodside testified that the appellant’s risk could not be adequately managed in the community and was pessimistic that a long-term supervision order would adequately protect the public. He said the appellant lacked empathy, was indifferent to the consequences of his actions, and was disinterested in treatment.
The appellant challenged Woodside’s reliability based on several errors he made in his report, but the trial judge accepted it as reliable and “relied on it heavily,” said Tulloch. The Crown had argued that Woodside’s mistakes were the “one-off slip-ups” of an “extremely well-respected” expert whose extensive experience included 160 dangerous offender assessments. Bird’s findings in Nettleton would have undermined this argument, said Tulloch.
The court found that the Nettleton decision also rendered the sentence unreasonable because Woodside was the sole expert who testified.
Tulloch noted that his reasons should not be interpreted as diminishing the importance of public protection, which necessitates a substantial jail sentence and long-term supervision for the appellant, who has a significant criminal record. He said it will be for the sentencing judge to determine whether an indeterminate sentence is necessary, and the interests of justice require that determination rests on a solid foundation rather than “potentially unreliable evidence.
The appeal in Hason is notable to any lawyer defending a case involving Woodside’s expert evidence, says Litkowski. The court noted that fresh evidence exposing Woodside’s careless practices would not require a new hearing in every case. But Litkowski says the court’s ruling indicates that several factors will be relevant in that determination: to what extent Woodside’s reliability was challenged and whether errors were exposed, whether his evidence was limited in scope, the extent to which the trial judge relied on his evidence, and whether other expert evidence confirmed Woodside’s evidence.
“Counsel will want to carefully review cases that have already been completed that involve Dr. Woodside with a view to potentially re-opening those cases if the judge is not yet functus, or to potentially raise the issues on appeal.""
The entire story can be read at:
https://www.lawtimesnews.com/practice-areas/criminal/psychiatrists-careless-expert-evidence-leads-to-new-sentencing-for-dangerous-offender-ont-ca/386102Dr. Woodside’s cavalier practice regarding the analysis section of his dangerous offender reports merits that critical scrutiny. He characterized that section as boilerplate. It is not. Rather, I agree with Justice Bird that this section is “very significant”: It is the very section that judges rely on to determine whether to designate the person before the court as a dangerous offender and impose an indeterminate sentence. It is unsettling that Dr. Woodside does not appreciate the significance of this report section or the devastating human consequences that his careless approach to it risks causing.
[102] Raising Dr. Woodside’s testimony in Nettleton as a new issue fosters the better functioning of the justice system and public confidence in that system. As the Goudge Report stressed, courts are the justice system’s last line of defence against unreliable expert evidence:Maintaining that line of defence’s effectiveness requires that all justice system participants, including courts, pay close attention to judicial decisions that expose serious concerns about an expert’s reliability. Failing to do so can have severe consequences. As early as 1991, a trial judge found that a leading pediatric forensic pathologist, Dr. Charles Smith, provided unreliable evidence: The Goudge Report found that this decision was a “danger signal” that should have prompted a re-evaluation of Dr. Smith’s work but did not because Dr. Smith’s supervisor never reviewed it. As a result, Dr. Smith continued to perform unreliable assessments for more than a decade that led to at least one wrongful conviction: Grappling with red flags that prior decisions identify improves the functioning of the justice system and public confidence in it by ensuring that history does not repeat itself:
It is especially important to scrutinize the red flags Nettleton raised because other judges have also criticized Dr. Woodside for similar conduct. As the Goudge Report confirms, repeated expressions of concern by courts and other justice system participants about an expert’s work are red flags that should raise “alarm bells”: That is the case here. For example, while still a Superior Court judge, my now-colleague Justice Nordheimer raised an early red flag regarding Dr. Woodside’s opinions and conclusions: While Justice Nordheimer used measured language, he nonetheless found that Dr. Woodside expressed his opinion overconfidently, failed to address contrary evidence, and failed to re-evaluate his opinion when he learned that some of its factual foundations were not proved by the Crown: Davis, at paras. 22, 29-31. These errors are very similar to those Nettleton exposed. Likewise, Justice Molloy criticized Dr. Woodside for his “unusual” practice of failing to preserve his interview notes in unaltered form. She found that this practice frustrates cross-examination although she accepted that he did not intend that effect and ultimately accepted his opinion: R. v. Minassian, 2021 ONSC 1258, at para. 254. These decisions rebut the Crown’s argument that concerns about Dr. Woodside’s testimony are restricted to the Nettleton case."
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog.
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-12348801
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SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
---------------------------------------------------------------
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
————————————————————————————
YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-12348801
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