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Crown hopes fatigue specialist's evidence can show effect on reactions in fatal truck case

Defence wants expert testimony disallowed
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The Sault Ste. Marie Courthouse is pictured in this file photo. Michael Purvis/SooToday

Superior Court Justice Edward Gareau will decide Friday on the admissibility of expert opinion evidence that the Crown wants to call at a Thunder Bay transport driver's criminal negligence causing death trial.

After hearing submissions from the prosecution and defence Thursday morning, Gareau adjourned his decision, indicating he wanted to consider the matter fully.

"I'm struggling with this,"  he said. "I'm not finding it an easy decision to make. It's close."

Noting the evidence is obviously important given the consequences of the Feb.13, 2014 collision, Gareau said he was going to take some time to consider the matter and the issues.

Gary Tyska is charged in connection with the fatal crash that occurred shortly before 7 a.m. on Highway 17,  just outside Blind River.

David Dennie, a 36-year-old off-duty Ontario Provincial Police constable, died in the collision.

The Crown wants the court to hear testimony from Ottawa human fatigue specialist Clinton Marquardt.

During a voir dire Wednesday, prosecutor Karen Pritchard asked that he be qualified as an expert witness on the role of sleep-related fatigue in accidents and incidents, and the resulting risk and performance impairment associated with that fatigue.

As well, Marquardt should be designated an expert in the use of the Fatigue Avoidance Scheduling Tool (FAST), a biomathematical software tool for analyzing human fatigue and resulting risk and performance impairment, she said.

On Thursday, defence counsel Kate Brindley said it can't be denied that Marquardt has an impressive background, is passionate about his area of expertise and has acquired special knowledge of fatigue. 

But there are issues with his qualifications, she argued, pointing out that he has never been qualified as an expert in any Canadian criminal or civil court.

Marquardt has given himself the "impressive title of human fatigue specialist, a title of his own creation," Brindley told the court.

This is not a registered field and there is no licensing body monitoring qualifications, she said.

Brindley said his curriculum vitae has "a degree of puffery and the potential to be misleading," noting Marquardt indicates he is the only human fatigue specialist.

The Crown is seeking to take the ordinary experience of the less sleep you have, the more fatigued you are and transfer it into technical jargon, she maintained.

Pritchard countered that Marquardt, who has been involved in the field of sleep and fatigue since 1989, has clinical, research and investigative experience.

His opinion won't be simply evidence that Tyska didn't have sleep therefore he was fatigued, she said, adding there will be more evidence.

The evidence Marquardt "can provide is scientific analysis that shows much more — less deep (sleep) means more fatigue," the prosecutor said.

It would be beneficial to the court to know how much level of fatigue impacted on Tyska's reactions, how much it would affect his performance and how much his performance would be impaired, she argued.

Pritchard said the fact that Marquardt hasn't been qualified as an expert before shouldn't impact on him being designated now if the court accepts his qualifications.

Marquardt recognizes his duty to be objective and enunciated his opinion would be his opinion no matter who called him to testify in court, she told Gareau.

No weight should be placed on the term (human fatigue specialist) he uses to describe himself, she suggested.

There are others who have this expertise, but use different terms to describe what they do.

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About the Author: Linda Richardson

Linda Richardson is a freelance journalist who has been covering Sault Ste. Marie's courts and other local news for more than 45 years.
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