Judge cites ‘troubling’ errors, rejects officer as expert witness
The detective who re-created the fatal collision between Steven Conley’s dump truck and cyclist Nusrat Jahan will not be qualified as an expert, the trial judge ruled Monday after finding too many errors in the police report.
Ontario Court Justice David Berg called the numerous mistakes exposed by Conley ’s defence team “troubling.” The report was based on a collision re-enactment, completed two months after the Sept. 1, 2016, crash and filed as evidence during testimony last week by Det.-Const. Alain Boucher.
Defence lawyers Dominic Lamb and Fady Mansour listed numerous inaccuracies, from police erroneously adding five inches to the height of the driver to the position of the bike-lane stop line, which the city moved back 42 centimetres in the wake of the crash.
The detective did not account for the new placement in his measurements, and amended his conclusion in court. The detective had first determined the cyclist was “clearly visible and unobstructed,” though Boucher corrected that conclusion in testimony to say the driver “may or may not have seen” Jahan in the moments before the crash. As the defence noted last week, Boucher’s report came to the opposite conclusion of a fellow detective who was initially assigned to investigate the collision.
Det. Greg Rhoden, who has not been called to testify, initially concluded Jahan was in the dump truck’s blind spot, and that Conley could not see her. He was taken off the case for “unrelated reasons,” court heard. The defence complained Rhoden’s report, which Boucher testified he did not include in his own because it was “incomplete,” was only disclosed to Conley’s defence team two days before the trial began.
Conley has pleaded not guilty to dangerous driving and criminal negligence causing death in the morning rush-hour collision at the corner of Laurier and Lyon Street.
The judge sided with the defence in disqualifying Boucher as an expert in the Crown case. But Berg agreed with Crown prosecutor John Ramsay in ruling Boucher’s testimony held “some probative value” and would, therefore, be admissible. Boucher’s re-enactment, constructed utilizing magnified traffic-camera photos, a similar model truck and a stand-in with a camera mounted above his eye line, was played in court for Berg in the non-jury trial.
As Conley ’s defence noted, police had the incorrect height of the driver and of the cyclist, they did not measure the height of the seat in Conley’s original vehicle, and they did not account for small obstructions within the cab of Conley’s Tomlinson truck — the sun visor and two window dividers, one on the windshield and one on the passenger side — that were not duplicated in the re-enactment vehicle.
“The only question here is what could Mr. Conley see? What was obstructed?” said Mansour, who argued Boucher’s testimony should be ruled inadmissible since it was based on flawed data. “There is no value in (Boucher’s testimony concerning) generally what a driver can see.”
While Berg said he was “very aware” of the errors in the report, and said he would weigh its merit accordingly in his deliberations, the judge ruled Boucher’s testimony would at least help him understand what the perspective would be like from the cab of a large commercial vehicle.
“It’s helpful to me to know what someone, generally speaking, can see from that seat, straight ahead and at a 90-degree angle,” Berg said.
The Crown closed its case last week after calling eyewitnesses and police investigators, including Boucher. The defence will now counter with an expert of its own, Mark Paquette, a collision-reconstruction specialist with Torontobased private firm 30 Forensic Engineering. The trial continues.