Psychiatrist’s ‘careless’ expert evidence leads to new sentencing for dangerous offender: Ont. CA

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.”