IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151002

Docket: S114405

Registry:
Vancouver

Between:

Ivan
William Mervin Henry

Plaintiff

And

Her
Majesty The Queen In Right Of The Province Of British Columbia as represented
by the Attorney General Of British Columbia,
City Of Vancouver, William Harkema, Marilyn Sims,
and Attorney General of Canada

Defendants

Before:
The Honourable Chief Justice Hinkson

Reasons for Judgment

[1]            
In these proceedings the plaintiff, Mr. Henry seeks damages against
the City of Vancouver (“the City”), William Harkema, Marilyn Sims and others
(“the City defendants”), for his convictions in March of 1983 of 10 sexual
offences involving eight different complainants, and his imprisonment
thereafter. Mr. Henry alleges that the City is vicariously liable for the
alleged negligence of Mr. Harkema and Ms. Sims and other members of
the Vancouver City Police in their investigation and conduct in their
investigation of a number of sexual assaults in the City.

[2]            
The plaintiff further alleges that the City defendants committed a
wrongful arrest, assault and battery of him, and breached his Charter rights.

[3]            
Mr. Henry seeks to introduce into evidence, at the trial of these
proceedings, the written opinions of Michael A. Davis, a former member of the
city of Toronto Police Service, and to call Mr. Davis to give viva voce
evidence with respect to his opinions.

[4]            
The City defendants object to the admissibility of Mr. Davis’ opinions
on the bases that Mr. Davis is unqualified to offer the opinions he
offers, that his opinions are unnecessary and unreliable, are conclusions of
fact or law, or both, and encroach upon the functions of the Court, are
argument and advocacy thinly disguised as an expert’s report, and are more
prejudicial to them than probative on the issues before me.

[5]            
Mr. Davis joined the Toronto Police Service as a cadet in 1973, and
rose to the rank of Administrative Detective Sergeant by the time of his
retirement in April of 2005. During his tenure with the Service, he trained at
the Ontario Police College and the Bick College, and served as a general duty
constable and a detective in various capacities. His duties included the
investigation of sexual assaults.

[6]            
Mr. Davis was instructed by the plaintiff’s counsel to assume a
lengthy list of facts to be true, and, based on those factual assumptions, to
provide his opinion with respect to the following questions:

1.              
Did VPD members exercise reasonable care, skill, and professional
judgment in their communications with and directions provided to the Vancouver
City Analyst lab?

2.         Did
VPD members exercise reasonable care, skill and professional judgment in
holding the "brainstorming" meeting?

3.         Did
VPD members exercise reasonable care, skill, and professional judgment in
failing to disclose to Crown counsel the forensic powder test and its results?

4.         Did
VPD members [exercise] reasonable care, skill, and professional judgment with
respect to the conducting of the May 12, 1982 line-up?

5.         Did
VPD members exercise reasonable care, skill and professional judgment in failing
to disclose to Crown counsel the fruits of the DNR, tracking device, and/or
wiretap?

6.         Did
VPD members exercise reasonable care, skill, and professional judgment with
respect to the July 27-28, 1982 photo line-up shown to the complainant known as
J. F.?

7.         Did VPD
members exercise reasonable care, skill, and professional judgment in showing
six trial complainants, all of whom had viewed the May 12, 1982 live Line-up, a
photo of that line-up subsequent to Ivan Henry being charged with sexual
assault, in the course of obtaining further statements from them?

8.         Did VPD
members Harkema, Sims and Campbell exercise reasonable care, skill, and
professional judgment in failing to provide disclosure information to Crown counsel?

9.         Did VPD
members exercise reasonable care, skill, and professional judgment in
investigating the November 1982-1983 sexual assaults and the potential that
those offences and Sexual Assaults had been committed by the same perpetrator?

10.       Did VPD
members exercise reasonable care, skill, and professional judgment in failing
to disclose to Crown counsel the circumstances of the November 1982-1983 Sexual
Assaults?

11.       Did VPD
members exercise reasonable care, skill, and professional judgment in
investigating the 1984-1988 Sexual Assaults and the potential that those
offences and Sexual Assaults had been committed by the same perpetrator?

12.       Did VPD
members exercise reasonable care, skill, and professional judgment in failing
to disclose to Crown counsel the circumstances of the 1984-1988 Sexual
Assaults?

13.       Did VPD
member Harkema exercise reasonable care, skill and professional judgment in his
2001 re-assessment of Mr. Henry’s convictions?

14.       Generally speaking, and
including any factors that you view to be relevant, did VPD members exercise
reasonable care, skill and professional judgment in their investigation of the
Sexual Assaults?

[7]            
Mr. Davis answered these questions as follows:

1.         VPD
members did not exercise reasonable care, skill and professional judgment in
their communications with and directions provided to the City Analyst Lab (the
"CAL") in 1982-1983.

2.         VPD
members did not exercise reasonable care, skill or professional judgment when they
allowed 12 sexual assault complainants to participate in a
"brainstorming" session in 1981.

3.         VPD
members did not exercise reasonable care, skill or professional judgment in
failing to disclose to the Crown, in 1982-1983, their failed attempt to connect
Henry to the sexual assault crime scene by way of forensic powder.

4.         VPD
members did not exercise reasonable care, skill or professional judgment in carrying
out the May 12, 1982 line-up (Report, p. 39);

5.         Detective
William Harkema exercised "some" reasonable care in disclosing
wiretap information to one Crown counsel, but he, Davis, added that he
"would have expected" Harkema to also disclose it directly to the trial
prosecutor.

6.         Detective
Harkema did not use reasonable care, skill or professional judgment in
conducting the July 27-28, 1982 photo line-up.

7.         VPD
members did not exercise reasonable care, skill and professional judgment in
showing six trial complainants a photo of the May Line-Up during re-interviews
in August and September, 1982.

8.         VPD
members did not exercise reasonable care, skill and professional judgment in
failing to provide disclosure to the Crown in 1983.

9.         VPD
members did not exercise reasonable care, skill and professional judgment in
investigating the sexual assaults that occurred from November 1982 to November
1983.

10.       VPD
members did not exercise reasonable care, skill and professional judgment in
failing to disclose to Crown counsel information regarding the 1982-1983
Assaults, and had these investigations been disclosed to the Crown, it
undoubtedly would have prompted further investigation of the counts on which
the Plaintiff was charged.

11.       VPD
members did not exercise reasonable care, skill and professional judgment in
investigating the sexual assaults that occurred from 1984 to 1988 and whether
they were connected to the sexual assaults for which the Plaintiff had been
convicted.

12.       VPD
members did not exercise reasonable care, skill and professional judgment in
failing to disclose the circumstances of 1984–1988 Assaults to the Crown.

13.       Harkema
did exercise reasonable care, skill and judgment in reviewing the investigation
of the Plaintiff in 2001, notwithstanding inaccuracies in his report and
deficiencies in the manner in which Harkema reported the results of his review.

14.       Davis answered the 14^th
question put to him by, for the most part, summarizing his conclusions on some
or all of the other 13 questions.

Discussion

[8]            
The prerequisites for the admissibility of expert opinions were set out
by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9 at 20:

(a)        relevance;

(b)        necessity
in assisting the trier of fact;

(c)        the
absence of any exclusionary rule; [and]

(d)        a properly qualified expert.

 a)       Relevance

[9]            
The City defendants first assert that counsel for the plaintiff
instructed Mr. Davis to apply an incorrect standard of care to his
opinions. They point to the letter of instruction to Mr. Davis, which
states in part:

We request that you prepare an
expert report addressing the issue of whether acts of [sic] of the Vancouver
Police Department members relating to the criminal investigations of our client
and other suspects met the standard of care of reasonable police conduct.

[10]        
I do not consider that Mr. Davis, or a reader of his report, would
consider that he felt bound or indeed simply applied a “reasonable police
standard” to his task. It is evident to me that instead he adopted the standard
of a reasonable police officer in all the circumstances; a standard which I
will discuss more fully below.

[11]        
The City defendants assert that because Mr. Davis’ opinion letter
addresses the legal issue of standard of care, it is inadmissible because the
question of the required standard of care is a matter for the Court to
determine, and Mr. Davis should not be permitted to offer an opinion on
the issue.

[12]        
I am unable to accept this submission. The standard of care in any
profession or calling is best known by those who are members of that profession
or engaged in that calling, and is usually unknown or incompletely known to a
trier of fact. There are, of course, exceptions when the standard accepted in
the profession or calling is so fraught with danger that the standard utilized
by the profession or calling is rejected; see for example Anderson v.
Chasney, [1949] 4 D.L.R. 71 (M.B.C.A.).

[13]        
The standard of care to be expected of a police officer was accepted by
Chief Justice McLachlin in Hill v. Hamilton-Wentworth Regional Police
Services Board, 2007 SCC 41 at para. 68 as that of a reasonable
police officer in all the circumstances.

[14]        
But at para. 73, Chief Justice McLachlin explained that:

…the appropriate standard of
care is the overarching standard of a reasonable police officer in similar
circumstances. This standard should be applied in a manner that gives due
recognition to the discretion inherent in police investigation. Like other
professionals, police officers are entitled to exercise their discretion as
they see fit, provided that they stay within the bounds of reasonableness. The
standard of care is not breached because a police officer exercises his or her
discretion in a manner other than that deemed optimal by the reviewing court. A
number of choices may be open to a police officer investigating a crime, all of
which may fall within the range of reasonableness. So long as discretion is
exercised within this range, the standard of care is not breached. The standard
is not perfection, or even the optimum, judged from the vantage of hindsight.
It is that of a reasonable officer, judged in the circumstances prevailing at
the time the decision was made – circumstances that may include urgency and
deficiencies of information. The law of negligence does not require perfection
of professionals; nor does it guarantee desired results (Klar, at
p. 359). Rather, it accepts that police officers, like other
professionals, may make minor errors or errors in judgment which cause
unfortunate results, without breaching the standard of care. The law
distinguishes between unreasonable mistakes breaching the standard of care and
mere "errors in judgment" which any reasonable professional might
have made and therefore, which do not breach the standard of care (Lapointe
v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351; Folland v. Reardon
(2005), 74 O.R. (3d) 688 (C.A.); Klar, at p. 359.)

[15]        
It is the discretion that is inherent in police investigation that necessitates
expert police evidence from an appropriate expert witness in this case as to
whether the conduct in question fell within or without the requisite standard
of care.

[16]        
In Bergen v. Guliker, 2015 BCCA 283, the Court of Appeal
considered an appeal by the Province from a judgment finding it 20 percent
liable for a collision following a police pursuit. The plaintiff had proffered
expert evidence on the standard of care to be expected of police officers in
the pursuit of a mentally unstable and suicidal driver that was ruled
inadmissible by the trial judge.

[17]        
Madam Justice Smith, for the Court, set aside the liability findings of
the trial judge, after concluding that the issue of the requisite standard of
care in such circumstances was one upon which expert evidence was required.

[18]        
At paras. 106 – 107, Smith J.A. wrote:

106      The general rule in negligence cases is that the
standard of care is that of the reasonable person in similar circumstances (Hill
at para. 69). However, in the context of professionals, this rule is
qualified by an additional principle: where the defendant has special skills
and experience, the defendant must "live up to the standards possessed by
persons of reasonable skill and experience in that calling" (Hill
at para. 69). It follows that, with respect to police officers, the determination
of whether the conduct of a police officer was negligent turns on whether his
or her conduct, when examined from the viewpoint of a police officer possessed
of reasonable skill and experience, was reasonable in the particular
circumstances. This standard was articulated in Hill as follows:

[73]      … [T]he
appropriate standard of care is the overarching standard of a reasonable police
officer in similar circumstances. This standard should be applied in a
manner that gives due recognition to the discretion inherent in police
investigation. Like other professionals, police officers are entitled to
exercise their discretion as they see fit, provided that they stay within the
bounds of reasonableness. The standard of care is not breached because a police
officer exercises his or her discretion in a manner other than that deemed
optimal by the reviewing Court. A number of choices may be open to a police
officer investigating a crime, all of which may fall within the range of
reasonableness. So long as discretion is exercised within this range, the
standard of care is not breached. The standard is not perfection, or even
the optimum, judged from the vantage of hindsight. It is that of a reasonable
officer, judged in the circumstances prevailing at the time the decision was
made. The standard is not perfection, or even the optimum, judged from the
vantage of hindsight. It is that of a reasonable officer, judged in the
circumstances prevailing at the time the decision was made — circumstances
that may include urgency and deficiencies of information. The law of negligence
does not require perfection of professionals; nor does it guarantee desired
results (Klar, at p. 359). Rather, it accepts that police officers,
like other professionals, may make minor errors or errors in judgment which
cause unfortunate results, without breaching the standard of care. The law
distinguishes between unreasonable mistakes breaching the standard of care and
mere "errors in judgment" which any reasonable professional might
have made and therefore, which do not breach the standard of care. [Emphasis
added.]

107 In Hill,
the Court emphasized that police officers are professionals and their conduct
should be assessed in the same way that other professional negligence claims
are evaluated. Therefore, in considering the standard of care, the degree of
discretion afforded to them in the exercise of their duties is important:

[52] Police, like other
professionals, exercise professional discretion. No compelling distinction lies
between police and other professionals on this score. Discretion, hunch and
intuition have their proper place in police investigation. However, to
characterize police work as completely unpredictable and unbound by standards
of reasonableness is to deny its professional nature. Police exercise their
discretion and professional judgment in accordance with professional standards
and practices, consistent with the high standards of professionalism that
society rightfully demands of police in performing their important and
dangerous work.

[53]      Police are not unlike
other professionals in this respect. Many professional practitioners exercise
similar levels of discretion. The practices of law and medicine, for example,
involve discretion, intuition and occasionally hunch. Professionals in these
fields are subject to a duty of care in tort nonetheless, and the courts
routinely review their actions in negligence actions without apparent difficulty.

[54] Courts are not in
the business of second-guessing reasonable exercises of discretion by trained
professionals. An appropriate standard of care allows sufficient room to
exercise discretion without incurring liability in negligence. Professionals
are permitted to exercise discretion. What they are not permitted to do is to
exercise their discretion unreasonably. This is in the public interest.

[Emphasis added by Smith J.A.]

[19]        
I do not consider that I am able, without the evidence of a witness
trained and or experienced in policing, to ascertain the standard of care to be
expected of a police officer at the times in issue in this case, or whether the
conduct in question met the requisite standard.

[20]        
I find that Mr. Davis’ proffered report meets the prerequisite of
relevance for the purpose of its admissibility with respect to the requisite
standard of care of a police officer.

b)       Necessity

[21]        
I do not accept the proposition put forward by the City defendants that what
Mr. Davis’ report offers, such as “evidence of the particular policing
practices which were the accepted, usual or standard practices in the time,
place and circumstances in question” is of a non-technical nature, and
therefore unnecessary as the issues that it addresses should be “guided by
external indicators which are factual in nature”. This proposition includes the
assumption that certain practices were usual or standard, an assumption that
requires expert evidence.

[22]        
While there may be written policies and procedures, and evidence of
training, knowledge, practices and capabilities in place within the Vancouver
Police Department at the relevant times, as I have already alluded to above,
the discretion that is inherent in police investigation necessitates evidence
from an appropriate expert witness with respect to such an investigation.

[23]        
The City defendants also contend that Mr. Davis’ report lacks probative
value.

[24]        
As I have already found, I do not consider that I am able, without the
evidence of a witness trained and experienced in policing, to ascertain the
standard of care to be expected of a police officer at the times in issue in
this case. Where some of the commentary in the report applies the standard of
care viewed as appropriate by Mr. Davis to the conduct of the police
officers in question, it may be entitled to little or no weight. But the
subject matter of the report calls for special knowledge, and may provide me with
a ready-made inference which due to the nature of the work, I might otherwise be
unable to formulate, as discussed by Mr. Justice Dickson, as he then was
at p. 42 in R. v. Abbey, [1982] 2 S.C.R. 24.

c)       Exclusionary Rules

i)        Factual vs. Opinion
Evidence

[25]        
The City defendants submit that much of what is in Mr. Davis’
proffered report are facts as opposed to opinion evidence, and thus should not
be admitted in the form of opinion. They refer to 61 paragraphs of factual
assumptions set out in the report. I see no basis for complaint with respect to
the recitation of facts that Mr. Davis was asked to assume.

[26]        
I reject the submission that Mr. Davis’ report is inadmissible
because it makes assertions or findings of fact, or expresses non-expert
opinion or incredulity. These are really matters of style, and I have no doubt
that I will be able to overcome any stylistic shortcomings that the report may
have if and when I decide whether it should be relied upon, and if so, the
extent to which it should be relied upon.

[27]        
With respect to facts referred to by Mr. Davis, I adopt the view
expressed by Mr. Justice Spencer in Quintette Coal Ltd. v. Bow Valley
Resource Services Ltd., [1988] B.C.J. No. 1365 (S.C.) that an expert:

…may not make conclusive
findings of fact on issues disputed between the parties, but he may state
certain facts as the hypothesis upon which he reaches an opinion, or, refer to
matters which are already put in evidence… It will be for the Court to decide
eventually whether that hypothesis is made out, or whether the appropriate
facts are found from that evidence.

[28]        
Although some portions of Mr. Davis’ report set out factual
information, the factual information is necessary in order to appreciate the basis
for his opinions, and while I may ultimately accept or reject the factual basis
for his opinions, I am not prepared to excise the factual underpinnings from
the report.

[29]        
The City defendants further contend that Mr. Davis’ report consists
of argument by way of various combinations of assertions, findings of fact and
law, irrelevant non-expert opinion, and incredulity.

ii)       General
Vancouver City Police Conduct

[30]        
The City defendants also oppose the admissibility of parts of Mr. Davis’
report on the basis that it compares the conduct of members of the Vancouver Police
Department with police practices without specific reference to time and place
or to specific officers.

[31]        
While the report does not name all of the officers whose conduct it
discusses, it may be that it will assist me in addressing the conduct of
officers whose conduct has been called into question by the allegations in the
pleadings. In addition to the named defendants William Harkema and Marilyn
Sims, those named at para. 114 of the third amended notice of civil claim
include Bruce Campbell, David Baker, Lloyd Foxx, Doug MacLean and George
Kruchak. If Mr. Davis’ report does not assist me in addressing the conduct
of those members, and those of Daryl Keen, who is also mentioned in the third
amended notice of civil claim, I will ignore those parts of the report.

[32]        
Insofar as time and place are concerned, I am unable to accept that the
conduct of a police investigation has changed so dramatically over the period
of time that Mr. Davis was engaged in police work that his opinions will
not assist me in assessing the police conduct in question. I will deal with
location below, when I address the so-called locality rule.

iii)      Probative Value vs.
Prejudice

[33]        
The City defendants contend that Mr. Davis’ opinions are more prejudicial
than probative. Clearly the plaintiff would not want to rely upon the opinions
of Mr. Davis if they were not prejudicial to the position of the City
defendants. The fact that they are is not, in my view, a reason to reject the
report, and in any event, the prejudice to the City defendants does not
outweigh the potential probative value of Mr. Davis’ report on the
evidence presently before me.

d)       Mr. Davis’
Qualifications

i)        Training and
Qualifications

[34]        
Mr. Davis’s Curriculum Vitae is appended to his report. I do
not intend to recite his qualifications in detail. He trained as a police cadet
with the Toronto Police Service in 1973 – 1974, and attended the Ontario Police
College in 1974 – 1975. Part of his training included attendance at the C. O. Bick
College in Ontario as well.

[35]        
Mr. Davis began his post-training career as a uniformed constable,
and rose through the Service to the rank of Administrative Detective Sergeant
until his retirement in April of 2005. During his career he worked as a
detective constable in various roles, investigating a variety of alleged
offences including sexual assaults. In his latter years he provided training to
detectives and police constables and advice to the Service’s Special
investigations Unit.

[36]        
Mr. Davis was extensively cross examined on his qualifications, and
was unable to answer questions about the training provided to Vancouver Police
Department officers in the 1960’s and 1970’s. Paraphrasing his evidence, he did
state his belief that certain aspects of the training of officers in Vancouver
was, or could be expected to be comparable to the training in Ontario during
the same time periods. He also reviewed the Vancouver Police Department
Constables Manuals, Second Revised Edition, 1973, and Fourth Revised Edition,
March 1980, and with respect thereto stated:

When I first looked at the constables’ manual it brought back
a lot of memories when I first looked at it because these are the type of
things that you received from the Ontario Police College. When you came out of
the College you had binders and binders of material. A lot of it included all
of these issues that are being dealt with in the constables’ manual of
Vancouver here. So after going through it it’s quite similar to what we would
have had in Ontario.

As well in tab 19, dealing with
the regulations and procedures manual, quite similar to our own — when I say
“our own” I mean Toronto Police Service regulations and that type of thing.
There are some variations because of the service itself but other than that
it’s basically the same.

[37]        
I would be surprised if the training of Ontario police officers at the
times in issue were identical to that of Vancouver police officers at the same
times, but that is not a reason to reject Mr. Davis’ evidence. The
standard that must be considered in this case is that of a reasonable police
officer in similar circumstances, and Mr. Davis has given evidence that the
manuals, and, I infer, the practices of the two services were similar at the
times in issue.

[38]        
If cross examination or other evidence will persuade me that the
standard of care to be expected of Vancouver police officers on narrow or even
broad issues is different from the standard stated by Mr. Davis, I may
give his evidence little or no weight, but for the purposes of admissibility,
the evidence of Mr. Davis, based primarily on his experience, satisfies me
that he has the necessary qualifications to provide opinion evidence on the
standard of care to be expected of a reasonable police officer in all the
circumstances, at the times relevant to the allegations in this case, and to
offer his opinion as to whether that standard of care was met by the impugned
acts or omissions of the members of the Vancouver Police Department.

ii)       The Locality Rule

[39]        
The City defendants contend that because Mr. Davis’ entire career
as a police officer was spent in Toronto, he cannot offer his opinion on the
required standard of care of a Vancouver Police Department officer at the
relevant times.

[40]        
At para. 71 in Hill, Chief Justice McLachlin referred to the
standard of “a similarly situated officer”. There will be cases, of course,
where it will be unfair to compare a police officer in one location to an
officer in a dissimilar location. For example, in Meady v. Greyhound Canada
Transportation Corp., 2015 ONCA 6 at para. 43, Chief Justice Strathy,
for the Ontario Court of Appeal, distinguished officers from a small northern Ontario
community from those in larger urban centres:

The tragic events in this case
unfolded in a small northern community situated on the highway between Kenora
and Thunder Bay and on a bus serving that and similar communities. The key
issues involved the standard of care to be observed by police officers and by a
bus driver operating in those communities. In my view, the trial judge was
uniquely positioned to decide whether he needed expert evidence to determine
those standards of care and his rulings attract deference.

[41]        
In Barton v. Nova Scotia (Attorney General), 2014 NSSC 192, Mr. Justice
Chipman commented at paras. 124 – 125:

124      Neither the plaintiff nor the Attorney General of
Canada presented expert evidence with respect to the appropriate standard of
care for a police force carrying out an investigation in a rural Canadian
community in 1969. The plaintiff said I should simply apply common sense. The
Attorney General of Canada argued the plaintiff’s failure to call expert
evidence in this area was fatal, given that it is the plaintiff who bears the
burden of proof (on a balance of probabilities).

125      While I might have
preferred expert evidence to weigh, I am cognizant of cost consequences and do
not regard this omission as fatal.

[42]        
Notwithstanding the comments of Madam Justice Southin for the majority
at paras. 39 – 41 in Roy v. British Columbia (Attorney General), 2005
BCCA 88, I am not persuaded that I should apply a locality rule in relation to
the police actions or inactions alleged in this case.

[43]        
Toronto and Vancouver are two of Canada’s three largest cities, and were
so at all times relevant to this case. I am not prepared to assume, without
evidence, that there were significant differences in policing standards in the
two cities, such that an experienced police officer from Toronto could not
provide a useful opinion of the standard of care to be expected of police
officers in Vancouver at the times in question. If evidence is led, or cross
examination persuades me that Mr. Davis’ opinions are not useful, they may
be entitled to no weight, but I am not prepared, at this juncture, to rule that
Mr. Davis’ opinions are inadmissible.

e)       The
Davis Report

[44]        
Notwithstanding my conclusions on the ability of Mr. Davis to
provide evidence that may be of assistance in the resolution of the issues
affecting the City defendants, I am not satisfied that his report can be
admitted in its entirety.

[45]        
I will deal first with those parts of the report that I will admit into
evidence.

[46]        
While the answer to the second question posed to Mr. Davis           arguably
intrudes on the specialties of psychology and sociology, if not other areas, I
am persuaded that it is also within Mr. Davis’ experience, so will
allow it to remain in his report, and will afford it the weight that I consider
it deserves following cross examination, and the evidence of other witnesses.

[47]        
With respect to Mr. Davis’ answer to the fifth question answered,
while it begins with an assertion of what he perceives to be the obligation of
police officers, I am prepared to admit that part of his answer on the basis
that his experience may equip him to offer at least his perspective on the
issue, in case it assists me in understanding the interaction between the
police and Crown counsel. I do have some qualms about the evidence he has
included in this answer about what witnesses said and did. To the extent that
the evidence will be led through statements of agreed facts or other witnesses
it is arguably unnecessary. To the extent that the evidence will not be led
through statements of agreed facts or other witnesses it is inadmissible
through the report or evidence of Mr. Davis. I will bear this in mind when
I come to deal with this answer, but I do not consider that it is a basis upon
which I should reject the answer at this juncture.

[48]        
I have reached a similar conclusion with respect to the admissibility of
Mr. Davis’ answer to the seventh and eighth questions that he was asked
and for the same reasons that I will admit his answer to the fifth question he
was asked, I will admit his answer to the seventh and eighth questions.

[49]        
The ninth question asked of Mr. Davis seeks his opinion with
respect to the conduct of “VPD members”. As I have discussed above, this part
of the report may assist me in addressing the conduct of officers whose conduct
has been called into question by the allegations in the pleadings. If it does
not, I will ignore this part of the report.

[50]        
While I am not satisfied that Mr. Davis’ answers to the eleventh,
twelfth and thirteenth questions that he was asked will be of assistance to me,
I am not prepared, at this juncture, to say that they will not. As with Mr. Davis’
answer to the fifth question he was asked, they begin with an assertion of what
he perceives to be the obligation of police officers, and I am prepared to
admit that part of his report on the basis that his experience may have equipped
him to offer at least his perspective on the issues upon which he comments in
his answers to questions eleven, twelve and thirteen, in case it assists me in
understanding the basis for his answers to these questions. I will afford these
opinions the weight that I consider they deserve following cross examination,
and the evidence of other witnesses.

[51]        
The following redactions to Mr. Davis’ report must be made, for the
following reasons:

a)       In his answer to the first
question that he was asked, the paragraph that begins at the bottom of page 15 states:

Prior to 1982, police would have received training at their
various academies or colleges on the use of forensic laboratories. Experts from
the field would have been brought in to teach or lecture police on forensics
which would have included serology.

Some of the available training includes:

·       
How to properly collect evidence at crime scenes;

·       
How to submit evidence collected to the laboratories;

·       
How to request appropriate examinations from forensic scientists,
i.e. examine for semen, spermatozoa, blood or any other bodily fluids.

This portion of the answer should be redacted as the basis for
its application to Vancouver Police Department is unstated, and Mr. Davis
has no knowledge of the training in Vancouver at the relevant time. The
paragraph that begins at the bottom of page 16, together with the last two
paragraphs on page 17, which read:

At that time (1982), forensic testing of perpetrator
spermatozoa was capable of definitively excluding a police suspect in a sexual
assault case based on a comparison of blood or blood enzyme type (serology
testing).

He or members of the VPD, ought to have requested serology
testing in this case to assist in determining whether Ivan Henry could be
eliminated or confirmed as a suspect/perpetrator in the sexual assaults.

Therefore, members of the VPD neglected to exercise
reasonable care, skill, and professional judgment in their communications with
and directions provided to the City Analyst Lab.

should be redacted as the first is
beyond Mr. Davis’ qualifications and the last two assume facts that I have
ordered to be redacted from earlier parts of the report.

b)       The
entirety of Mr. Davis’ discussion in answer to the third question he was
asked is little more than argument, and does not appear to be based upon either
his training or experience with respect to the narrow issue he is addressing.
It should be redacted in its entirety.

c)       The
factual portion of Mr. Davis’ response to the fourth question that he was
asked contains a great deal of evidence about what witnesses said and did. To
the extent that the evidence will be admitted through statements of agreed fact
or other witnesses it is unnecessary. To the extent that the evidence will not be
admitted through statements of agreed fact or other witnesses it is
inadmissible through the report or evidence of Mr. Davis. Insofar as the
opinion portion of Mr. Davis’ response to the fourth question is
concerned, I am not satisfied that Mr. Davis has the necessary experience
to offer an opinion in answer to the question, and his answer includes a reference
to case law that is unnecessary or inadmissible through him.

In addition, the propriety of the
lineup was the subject of critical comment without such evidence by the Court
of Appeal in R. v. Henry 2010 BCCA 462, and even if the views expressed
by the Court of Appeal are not, strictly speaking, binding on the City
defendants pursuant to the principles of res judicata or abuse of
process, they are nonetheless instructive with respect to the propriety of the
lineup.

Insofar as the portion of the
answer discussing voice identification is concerned, it would appear to offer a
common sense view, but I am not persuaded that Mr. Davis has any
particular expertise with respect to voice recognition that warrants the
inclusion of that part of his answer.

Mr. Davis’ discussion in answer
to the fourth question that he was asked should be redacted in its entirety.

d)       With
respect to Mr. Davis’ discussion in answer to the sixth question he was
asked, I have reached the same conclusions that I did with respect to fourth
question, and find that Mr. Davis’ discussion in answer to the fourth
question that he was asked should be redacted in its entirety.

e)       In his discussion
in answer to the tenth question that he was asked, Mr. Davis sets out but
one paragraph of facts presumed to be true. I do not consider that the facts
set out in that paragraph are a sufficient basis upon which Mr. Davis
could, without considerable speculation, offer an opinion in answer to the
question, and I find that his discussion in answer to this question should be
redacted in its entirety from his report before it can be admitted into
evidence.

f)        As I
stated above, Mr. Davis’ answer to the fourteenth question that he was
asked is, for the most part, a summary of his conclusions on some or all of the
other 13 questions. As I have ordered some of those answers to be redacted, I
will order the redaction of the entirety of this part of his report before his
report can be admitted into evidence.

[52]        
Counsel should revise Mr. Davis’ report to reflect the required
redactions. It can then be admitted into evidence, and Mr. Davis can be
called to comment upon or clarify any portions of the redacted report, and be
cross examined.

“C.E.Hinkson CJSC”

_______________________________
The Honourable Chief Justice Hinkson