Leading Ontario forensic psychiatrist too biased to give evidence, ‘cut and pasted’ opinions, judge finds

The professional credibility of one of Ontario's leading forensic psychiatrists has been called into question by a judge who took the unusual step of refusing to qualify him as an expert, finding him too biased to give evidence.

The recent decision by Superior Court Justice Laura Bird - who concluded Toronto's Dr. Scott Woodside cut and pasted" and made numerous errors in reports filed with the court - has sent shock waves through the criminal justice system, with defence lawyers warning of grave" implications, including the need to review scores of other cases that relied on the doctor's opinion.

Despite his being an extremely knowledgeable and experienced forensic psychiatrist with impressive" credentials, Woodside's refusal to reconsider his opinion even after being confronted by his errors demonstrated his professional credibility bias," the judge wrote.

There is no such designation as expert for life.'"

Woodside, the head of a sexual behaviour clinic at the Centre for Addiction and Mental Health, has provided more than 160 court-ordered assessments to criminal trials across Canada, including the high-profile case of the man who drove a rented van down Yonge Street, killing 10 people.

Woodside did not respond to requests for comment from the Star.

A spokesperson for the Ministry of the Attorney General said it would be inappropriate to comment - including on any concerns about Woodside's other cases - because the matter is before the courts.

A CAMH spokesperson also declined to comment.

In the recent case, the prosecution was seeking to have Caleb Nettleton, 37, of Toronto, declared a dangerous offender after a jury last year found him guilty of robbing a Subway restaurant in 2018.

Nettleton's criminal record includes robberies and threatening members of the justice system, including a judge. He has also been convicted of assaulting peace officers while in custody.

Woodside initially assessed Nettleton and wrote a 103-page psychiatric report dated Aug. 18, 2019, followed by two more in 2022 and 2023.

However, the reports he submitted at the dangerous offender hearing contained a series of glaring errors.

Among them, Bird noted that Woodside mixed up Nettleton's diagnoses, domestic assault history, alleged gang affiliation and score on a psychopathy test, as well as misrepresenting what happened during the robbery - mistakenly referring to it as a theft of drugs."

The judge also noted verbatim examples of Woodside incorporating identical" paragraphs from a 2014 report he wrote about a different offender, identified in Bird's ruling by the initials N.W.

During cross-examination, Nettleton, who represented himself, and Dean Embry, a lawyer appointed by the court to assist him, challenged Woodside about the similarities between the 2014 report and his opinion on Nettleton. Under questioning, Woodside acknowledged he must have used it as a template and failed to change the facts to reflect Mr. Nettleton's history," the judge wrote in her decision.

One section of his report, including an assessment on whether Nettleton meets the criteria for the dangerous offender designation, was a cut and paste from the N.W. report," Bird found.

Very few changes were made to it," she wrote, noting that Woodside conceded any facts contained within that section that accurately describe Mr. Nettleton are a matter of coincidence.

It was, in fact, not written about Mr. Nettleton."

Toronto defence lawyer Hilary Dudding, who was not involved in the case, called the judge's ruling shocking."

We take for granted that just because someone is a highly experienced expert, that they come to court free of bias," Dudding said.

The decision demonstrates how cautious courts need to be about admitting this kind of evidence."

In her decision, Bird wrote that Woodside tried to minimize the impact of his mistakes, demonstrating many examples" of bias causing him to support a position he had previously taken despite being confronted with evidence that it was inaccurate."

As an example, she cited Woodside's description of the robbery as putting others at risk of death," the most glaring example" of unrelated wording taken from the N.W. case.

Dr. Woodside consistently tried to explain how that characterization did apply to Mr. Nettleton," despite the fact there was not an actual risk of death."

When Nettleton robbed the Subway store, he put a note on the counter that read, Be calm, be patient, don't panic. Give me all your money, otherwise I'll shoot you." There was no evidence that he used actual violence during the incident.

Rather than concede this point, Dr. Woodside searched for a way in which to force a square peg into a round hole," wrote Bird, who sits in Newmarket.

In summary, the judge wrote that she was unable to qualify him as an expert witness because of concerns about his professional credibility and the reliability of his evidence.

Eric Neubauer, another defence lawyer and Toronto director of the Criminal Lawyers' Association, said the concerns raised by the judge are deeply troubling."

It is difficult to overstate the seriousness of the court's findings," he wrote in an email. This is unusual. Exclusion of expert evidence for bias is rare - it only occurs where it is very clear that the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence - that is a high bar."

But that bar was met here when Woodside continued to justify his opinion even after being repeatedly confronted with its obvious errors and inaccuracies" during cross-examination.

Going forward, counsel will undoubtedly have to scrutinize his other cases, Neubauer wrote.

We don't yet know how widespread the underlying problem is. If someone as qualified as Dr. Woodside is carefully recycling previous opinions there is a risk that other forensic experts are doing this too."

Nettleton's sentencing hearing is set for June 20.

Ontario's history of controversial expert witnesses

Errors by leading expert witnesses can have far-reaching consequences in the justice system.

• A 2008 public inquiry into autopsies done by Toronto forensic pathologist Charles Smith found his errors tainted dozens of criminal cases, resulting in several wrongful convictions against innocent parents. The province later offered $250,000 in compensation to victims of the disgraced SickKids expert.

• In 2012, a judge tossed the testimony of sociologist Mark Totten, who appeared as a prosecution gang expert in a Toronto murder case. A longtime expert witness, Totten had virtually no expertise with gangs in the Greater Toronto Area," the judge found.

• In 2014, a Star investigation exposed serious questions about hair tests done by SickKids' Motherisk lab, which were being relied upon in child-protection cases across the country. An independent review later found the tests - which resulted in parents losing their children - to be inadequate and unreliable" for use in court.

• In 2017, a judge tossed the expert testimony of Dr. Michael Pollanen on the death of a two-year-old Toronto boy. Then Ontario's chief pathologist, Pollanen offered expert opinions on matters that were not appropriate, not within his knowledge and expertise, and incorrect," the judge found. Pollanen had previously led a forensic pathology overhaul in the wake of the Charles Smith scandal; he was slammed for falling into the same traps that led to wrongful convictions he helped overturn.

• Earlier this year, a trial involving the death of another two-year-old ultimately fell apart over questions about Pollanen's expert testimony. The parents had been convicted of manslaughter years earlier before winning a new trial in 2020.

Correction - June 13, 2023: This story has been updated to correct Toronto defence lawyer Hilary Dudding's surname.

Betsy Powell is a Toronto-based reporter covering crime and courts for the Star. Follow her on Twitter: @powellbetsy