CHAPTER 5: MEDICINE

5:10 Cardiology

R. v. Hong, 2015 CarswellOnt 18708 (Ont. S.C.J.)

Defence Expert: Dr. Colman

Cain was charged along with three others of the murder of Ryan Kennedy, a young man who as Justice Boswell put it “had the great misfortune of being in the wrong place at the wrong time.” [at para. 1]

Cain sought to tender evidence of a heart condition he suffered from at the time of the offence arguing that it is relevant to his state of mind at the time of the murder. [at para. 2]. The application was brought part-way through the cross-examination of Cain.

On the voir dire Dr. Colman testified that Mr. Cain suffers from a congenital heart disease which “in its most layman-esque terms, the plumbing to and from his heart is mixed up. As a result, oxygenated blood returning to his heart from his lungs ends up mixing with deoxygenated blood returning to the heart from his body. The blood that gets pumped out from his heart to his organs and tissues is significantly less oxygenated than would normally be the case. His resting oxygen saturation rate is in the range of 82-85% of normal.” [at para. 16]

Defence argued that Dr. Colman’s evidence would consist of:

•      His knowledge of Cain’s heart disease; [at para. 24]

•      A hypothetical scenario, detailing various acts of exertion in circumstances bearing a striking resemblance to the facts in the case, Dr. Colman would be asked to explain what the blood saturation levels would be after such exertion in someone with Cain’s condition; [at para. 26]

•      Whether Cain had reported symptoms such as blurred vision, confusion, fuzzing out and whether those conditions were expected in a person with Cain’s condition. [at para. 28]

The Crown challenged both the qualifications of the expert and the admissibility of the proposed evidence. With respect to the qualifications the Crown argued that Dr. Colman lacks qualifications on the issue of the relationship between Mr. Cain’s heart disease and its effect on memory or mental functioning. Moreover, that this is actually the issue that the defence is trying to address with this expert evidence.

Boswell J. allowed the evidence holding that even though:

it is not “rocket science” that lack of oxygen to the brain can affect mental performance. As I suggested to counsel, anyone prepared to hold their breath long enough will be able to experience a range of such symptoms. That said, it is the connection between the profound heart disease and hypoxia and between hypoxia and mental impairments that is significant. For the jury to truly appreciate Mr. Cain’s condition, to understand the nature of his disease and how it might affect him, Dr. Colman’s evidence is required. Only in the context of his evidence will the jury really be able to assess the evidence that Mr. Cain gave about his cognitive experiences while inside the McKelvey residence. [at para. 64]

With respect to Dr. Colman’s qualification the court held that as a cardiologist and in fact Mr. Cain’s treating cardiologist for more than a decade, no one is likely to be more qualified to give evidence about Cain’s heart disease. [at para. 66]

5:20 Infectious Diseases

R. v. Murphy, 2013 CarswellOnt 11952 (Ont. S.C.J.)

Crown Expert: Dr. Irving Salit

Jennifer Murphy was charged with three counts of aggravated sexual assault against three separate complainants. The Crown alleged that Murphy endangered the lives of her sexual partners by not taking adequate measure to protect them from her transmitting HIV to them. Specifically she did not use condoms when her viral loads were low nor did she ever disclose her HIV positive status to her sexual partners.

Dr. Salit was qualified as an expert on HIV. His qualifications were uncontested. [para. 27] Dr. Salit prepared a written report which contained answers to questions posed to Dr. Salit by the defence with respect to issues bearing on the case.

Dr. Salit’s evidence was twofold. First, general principles and concepts about HIV. Second, case-specific opinions. Dr. Salit’s informational evidence was summarized as follows:

Dr. Salit explained that the CD4 count is a measurement of key cells in their white blood cells. It is an easy measurement of their immune system. A normal count would be about 500. A count of 300 would be moderate to low. A count of less than 200 would be severely abnormal. A person with a low CD4 count is more susceptible to shingles, herpes, TB and other rare infections that can attack their compromised immune system.

A person with HIV will have a certain viral load or concentration of HIV in their blood. This measurement is expressed as “copies” and can range from millions of copies to levels that are undetectable by current science. A measurement of less than 40 copies is considered undetectable and it is the goal physicians strive for through antiretroviral therapy (ART).

Dr. Salit indicated that a person can become infected by HIV through a number of methods including sexual contact with an HIV-positive person or contact with blood from an HIV infected person through contaminated needles. HIV is carried in the blood and in secretions including semen in men and cervical fluid in women. HIV is not contracted through hugging, kissing or touching objects used in common. [paras. 28-30]

The case specific opinions were put to Dr. Salit as hypotheticals based on the circumstances of the case before the court:

1. Q: In a heterosexual sexual interaction, where the female partner is HIV-positive, taking anti-viral medication, with a viral load of less than 50 copies, and is otherwise healthy, what is the risk of transmission to the male partner if the male partner were to perform cunnilingus upon the female?

A: This risk is not defined in any studies but would seem to be much less likely than 1 chance in 25,000.

3. Q: In a heterosexual sexual interaction, where the female partner is HIV positive, taking anti-viral medication, with a viral load of less than 50 copies, and is otherwise healthy, what is the risk of transmission to the male partner if they engaged in vaginal intercourse with a condom?

A: The observed reduction in HIV transmission in a clinical trial setting demonstrates that successful ART use by the person who is HIV positive is as effective as consistent condom use in limiting viral transmission. The use of the condom to prevent HIV transmission in this setting adds so little that it is an un-measurable benefit.

4. Q: In a heterosexual sexual interaction, where the female partner is HIV positive, taking anti-viral medication, with a viral load of less than 50 copies, and is otherwise healthy, what is the risk of transmission to the male partner if they engaged in vaginal intercourse without a condom?

A: It is approximately 1 chance in 10,000-1:25,000 per sex act. However, some studies indicate that there may be no sexual transmission at all in the above circumstance. [para. 38]

On the issue of disclosure of HIV status Dr. Salit’s clinic advises that with respect to vaginal intercourse “even if the risk of transmitting HIV is low there is a legal obligation to disclose HIV status unless a condom is used and the HIV-positive person has a low viral load.” [para. 44]

The Court accepted the expert evidence in its entirety.

An acquittal was entered in respect of one of the counts of aggravated sexual assault as it related to an act of intercourse on the basis of an adverse finding of credibility with respect to one of the complainants.

An acquittal was entered in respect of the count that related to an act of oral sex on the basis of Dr. Salit’s evidence that:

In this case, absent a realistic possibility of transmission of HIV, the Crown has failed to prove a significant risk of serious bodily harm. The conduct of Ms. Murphy did not rise to the level of fraud because there was no realistic possibility of transmission of HIV. Therefore, I find that the activity engaged in, oral sex, cunnilingus, was consensual. The consent given was not vitiated by fraud. I therefore record a verdict of not guilty with respect to count two. For the same reasons, I find Ms. Murphy not guilty of the lesser and included offence of sexual assault simpliciter. [para. 84]

The court entered a verdict of guilty on one of the counts of aggravated sexual assault as it related to an act of intercourse. This verdict, like the acquittal on the oral sex count, demonstrated the court’s unequivocal acceptance of the expert evidence.

On the facts before me, I am satisfied that no condom was worn and Mr. O. would not have consented to sexual intercourse had he been aware of Ms. Murphy’s HIV-positive status. Further, I am satisfied that although her viral count was low, indeed undetectable under the current science testing regime, there existed a realistic possibility of transmission of HIV when sexual intercourse occurs. I therefore find that Ms. Murphy’s fraud, her failure to disclose her HIV status negates the consent otherwise given to the sexual intercourse that took place. Mr. O. was therefore exposed to a significant risk of the transmission of HIV and that risk endangered his life. I therefore record a verdict of guilty with respect to this count of aggravated sexual assault. [para. 109]

R. v. Phelan, 2013 CarswellNfld 190 (N.L. C.A.)

Crown Expert: Dr. Missaghi

Phelan was convicted after trial of an aggravated assault by endangering life. Phelan jabbed his victim in the thigh with a needle containing his own Hepatitis C infected blood. Phelan appealed his conviction claiming that the trial judge made factual and legal errors. Although there were several grounds of appeal advanced, the assertion that the trial judge applied the wrong legal test in considering whether the aggravated assault had been made out. This ground related directly to the expert evidence provided by Dr. Missaghi.

After being jabbed in the thigh the victim sought medical care and was treated by Dr. Missaghi, an infections disease specialist; she remained under his care for several months. Dr. Missaghi was qualified as an expert on infectious diseases at trial without objection.

Dr. Missaghi testified that:

•      that [Hepatitis C] is the most common cause of chronic liver disease in North America;

•      that someone who has infected blood injected into them by means of a hollow-bore needle would be subject to a high risk exposure to the virus;

•      that 60% to 80% of people infected with the Hepatitis C virus go on to develop chronic Hepatitis C;

•      that while someone infected will not become acutely ill right away, they may suffer from fatigue, aches and pains for a very long time;

•      that 20% to 30% of patients go on to develop cirrhosis, end-stage liver disease and liver cancer. Hepatitis C is also associated with other diseases such a diabetes mellitus, thyroiditis, lymphoma and skin disorders such as lichen planus;

•      that several of the associated conditions listed above are life-threatening;

•      that there is no drug that can be provided to someone immediately after a possible exposure which might minimize the chances of infection; and

•      that the rate of successful treatment of Hepatitis C is limited, and, indeed, it is one of the more difficult infectious diseases that he treats. [para. 9]

The Court of Appeal concluded that the trial did not err. To the contrary the Court held that a:

[r]eview of the unopposed expert evidence of Dr. Missaghi, which the trial judge accepted, and which is summarized in paragraph nine above, leaves no doubt that the risk of contracting Hepatitis C from a jab with a needle containing infected blood is more than “a realistic possibility”, and that Hepatitis C can cause blood disorders, cirrhosis of the liver and liver cancer which are life-threatening conditions. Moreover, although there is no legal requirement for an infected complainant to have medical treatment, Dr. Missaghi’s evidence makes clear that Hepatitis C is a life-threatening condition whether it is treated or not, for there is “no good post-exposure prophylaxis” and the success of treatment is limited.

In the result, the trial judge had ample evidence to support proof of endangerment to life as an essential element of the offence charged and in accordance with the law as established in Cuerrier and affirmed in Mabior. Accordingly, he made no error in concluding that the actus reus of the offence was proved. [paras. 34-35]

The appeal was dismissed. [para. 42]

R. v. Ngeruka, 2015 CarswellYukon 46 (Y.T. Terr. Ct.)

Crown Expert: Dr. Mark Wainberg

At trial the Crown called Dr. Wainberg to provide expert evidence in microbiology and immunology. Dr Wainberg’s qualifications as expert in those fields with particular expertise in HIV and AIDS were uncontested.

Ngeruka plead guilty to aggravated sexual assault. Over a period of nearly four years he had sexual intercourse with LS. At the time he was HIV positive and never communicated this fact to LS.

LS was diagnosed with HIV. Ngeruka disputed that he was the source of LS’ HIV infection. The Crown sought to prove this fact and following the guilty plea the matter proceeded by way of a Gardiner hearing.

The hearing judge found that Ngeruka transmitted HIV to LS and that the transmissions resulted in LS contracting HIV. [para. 58] Cozens J. was able to draw this conclusion on the basis of the expert evidence tendered by the Crown.

That evidence touched on the following main points.

First, “there are multiple members of the HIV family. The various viruses can be distinguished on the basis of the sequencing of the nucleic acids of the viruses themselves. The subtype the virus falls into can be determined with a fair degree of precision based on the sequences of the nucleotides that make up the DNA and RNA of the virus.” [para. 32]

Second, HIV is a virus that will mutate all the time if it is given a chance to replicate. He stated that if one individual transmits HIV to a second individual, there is a very high likelihood that the virus from the individual who transmitted it will resemble the virus in the individual the virus is transmitted to. [para. 33]

Third, testing procedures could show if there is a strong degree of homology between the viruses in two individuals. If there is a strong degree of homology between the viruses in the two individuals, that would provide a high degree of proof that the viruses were of common origin. However, it cannot be stated with 100% certainty that one individual infected another. If one individual transmitted HIV to a second person, who then transmitted the virus to a third person, it would be likely that the virus of each of the three individuals would strongly resemble each other. [para. 34]

Dr. Wainberg also provided case specific evidence about Ngeruka’s strain of HIV and LS’. The expert concluded that having been provided with sequences of each of the viruses that infected LS and Ngeruka:

He concluded that the viruses present in L.S. and Mr. Ngeruka were most definitely related in terms of sequence homology. He stated that these viruses are very closely and strongly related to each other. He stated that, due to mutation of the virus, there is no such thing as 100 percent matching between two sequences. [para. 35]

The complainant testified about her prior sexual partners so that they could be ruled out as sources of the infection. Only one, Ken, was also HIV positive. On the basis of the expert evidence though the Court found that LS’ sexual encounter with Ken did not raise a reasonable doubt. Cozens J. explained:

Is the fact that L.S. had this one brief sexual encounter with Ken sufficient to raise a reasonable doubt as to whether the virus was transmitted to L.S. by Mr. Ngeruka? I find that it is not. In all the circumstances, I find that this possibility is remote at best, and that the only reasonable explanation for how L.S. contracted HIV was through her sexual encounters with Mr. Ngeruka. [para. 57]

R. v. C. (J.T.), 2013 CarswellNS 843 (N.S. Prov. Ct.)

Defence Expert: Dr. Walter Schlech

JTC was charged with aggravated sexual assault. The Crown alleged that he had sex with SN without telling her that he was HIV positive. Prior to the first sexual encounter there was no discussion about sexually transmitted infections (STIs). Before their next sexual encounters however SN asked and JTC flatly denied having any STIs and specifically AIDS. JTC testified that he used a condom every time he had sex with SN, SN testified that there was one occasion where no condom was used and one time where a broken condom was used. [at para. 19]

“Dr. Walter Schlech was qualified as an expert to give opinion evidence on infectious diseases, the epidemiology of HIV including the transmission of the HIV virus and treatment and prognosis of those diagnosed as HIV-positive.” [at para. 49]

Dr. Schlech was found by the court to be a “preeminent expert in the field.” [at para. 50]

The Court held that:

The opinions of Dr. Walter Schlech on matters pertaining to HIV and AIDS have to be taken very, very seriously. Dr. Schlech’s expert opinion in this case is direct, clear and unequivocal. “I should state at the beginning that I do not believe that there was a risk of transmission in this case.” In his testimony he did not alter that statement. Nothing the Crown put to him changed that view. There was no expert evidence to suggest that Dr. Schlech was underestimating the potential for transmission and nothing in either his direct or cross examination that would reasonably allow that inference to be made. [at para 51]

Based on the expert evidence the Court found:

(. . .) as a fact, based on expert testimony, that the chance of a person contacting HIV from J.T.C. through sexual intercourse during the time when sexual intercourse took place here can be expressed as approaching zero, for practical purposes zero or infinitesimally small. [at para. 63]

Based on that finding the Court acquitted JTC. [at para. 101]

5:30 Medical Examiner

R. v. Calnen, 2015 CarswellNS 934 (N.S. S.C.)

Crown Expert: Dr. Marnie Wood

Note: some of the facts of the case as described below come from other reported decision in this trial.

Calnen was charged with the second degree murder of his live in girlfriend Rita Jordan and committing an indignity to her body by burning it. The victim was reported missing and after a few days an investigation was launched. Mr. Calnen was interviewed on a number of occasions and some two-and-a-half months after the disappearance Calnen was arrested. Following his arrest he gave lengthy statements over the next two days. During those statements he described how Ms. Jordan fell to her death at the top of a stairway in their home. He consented to a reenactment of the fall on scene. After police brought in the victim’s mother to the interview Calnen provided details of how he disposed of her body and the location of it. The remnants of the body were insufficient for identification.

At trial the Crown sought to have Dr. Wood qualified as a forensic medical examiner “able to give evidence with regards to the cause and manner of death, nature of injuries and their significance”. [at para. 2] Defence opposed the Crown’s application.

At the voir dire, Dr. Wood testified that she held the position of forensic pathologist and medical examiner with the Nova Scotia Medical Examiner Service. The Court had “no hesitation in stating that she is well qualified as a forensic medical examiner.” [at para. 4]

The Court however held that the real issue was whether the report prepared by Dr. Wood met the test for admissibility.

Dr. Wood did not examine the body of Rita Jordan. She did however consult and attend the scene and view the video of the re-enactment among other things. She concluded that:

•      An instantaneous death such as the one described by Calnen following such a fall would be extremely unusual. [at para. 11]

•      Falls from standing height or onto a slope with impact to the face/chin may result in fractures of the cervical vertebrae. Most such fractures are survived. There exists a few descriptions of acute deaths by such falls however these occurred in individuals with significant co-morbidities (heart disease). [at para. 11]

•      Many fatal injuries are associated with a terminal period (minutes to years) of vital function, some are even associated with periods of alertness. Even where there is unconsciousness pulse and breathing may be ongoing. The description of death as instantaneous may be incorrect. [at para 11]

Dr. Wood’s experience with fatal flaws downstairs consisted of approximately 25 cases.

The Court concluded that Dr. Wood’s opinion was too speculative to have merit given that there were no positively identified remains appropriate for an autopsy. The court concluded that the opinion in these circumstances “amounts to an attack of Mr. Calnen’s credibility which would be highly prejudicial to him.” [at para. 35]

Finally the court concluded that Dr. Wood’s opinion was based on a novel technique that did not have “two of the three corners of the “Golden Triangle” (routinely used by pathologists), namely the body or the medical history of Ms. Jordan.” [at para. 38].

In light of these findings, the court concluded that notwithstanding the fact that Dr. Wood was a properly qualified expert in the field of forensic pathology her opinion in this case was speculative and based on a ‘rather novel technique’. [at para. 41]

5:40 Nurse Examiner

R. v. L. (G.R.), 2015 CarswellBC 3126 (B.C. S.C.)

Crown Expert: Tara Hanson

GRL was charged with sexual assault and sexual interference. It was alleged that he took the victim, a friend of his step-daughter, on a “quad” ride. During the ride he stopped and sexually assaulted her. The sexual assaults were alleged to include oral sex and vaginal and anal intercourse. The victim was 15 years old at the time.

At trial, the Crown called Tara Hanson. Hanson was a nurse and was qualified at the trial as a “forensic nurse examiner”.

Hanson testified that she examined the complainant at the hospital. She noted that the victim was “sober and very quiet”. She noted “a number of bruise-like marks and scratches” on the victim’s legs. Hanson was not able to given “any precise opinion” on the age of the marks but noted that they were “red” which she said could indicate “freshness” [at para. 26].

More to the point, Hanson testified that she “noticed a red abrasion-like area of the complainant’s posterior fourchette, which she says is an indication of blunt-force friction to that area and is consistent with sexual activity, but could have been caused by non-sexual activity” [at para. 27].

Hanson also noted that the victim’s “hymen at the 12 o’clock position” had a “slight tear” and “appeared fresh but was not bleeding” [at para. 27]. Hanson further opined that such a tear is “consistent with sexual activity” [at para. 27].

The victim declined to be subjected to an anal examination. A Polilight examination (which can indicate the presence of semen) was done but was negative.

The defence attempted to rely upon this evidence to undermine the victim’s evidence that there was a “prolonged” and “brutal” sexual attack. If there was such an attack, the defence asserted, there would be more injuries than those found by Hanson and there would have been bleeding from the rectum [at para. 36]. The trial judge rejected this position [at para. 37]. The trial judge concluded that the complainant could have been mistaken about certain details of the assault, but more importantly, that there “is no evidence that sustained vaginal intercourse [by the accused] . . . would have resulted in a more serious physical injury” [at para. 37].

5:50 Odontology

R. v. Vander Wier, 2013 CarswellOnt 17041 (Ont. S.C.J.)

Defence Expert: Dr. Wood

At trial the defence sought to call Dr. Wood and qualify him as an expert in the “diagnosis, causation and assessment of oral maxillofacial trauma and injuries”. [at para. 1].

Dr. Wood is a geographic full-time, active staff and department chief at the Department of Dental Oncology, Ocular and Maxillofacial prosthetics at Princess Margaret Hospital. He is also the Chief of Forensic Dentistry at the Office of the Chief Coroner for Ontario and Ontario Forensic Pathology Service. A vast majority of his work is in forensic odontology involving identifying unidentified bodies, bite marks and wound weapon etiology.

At the conclusion of the voir dire, the court concluded that Dr. Wood was an “expert in maxillofacial fractures” and would allow him to provide “opinion evidence on the diagnosis of mandible injuries and the mechanism and pattern of injuries”, including evidence on:

1.     what he examines when he treats fractures and whether he looks for the presence of other fractures;

2.     the relative strength of the jaw;

3.     common injuries he expects to see when treating patients; and

4.     the cases or research within his knowledge or experience involving patients who experienced jaw fractures from falls.

The court declined, however, to qualify Dr. Wood as an expert to provide opinion evidence on “causation or direction of force or magnitude of force in relation to jaw fractures” [at para. 3]. While noting that Dr. Wood had been qualified on “numerous occasions” in relation to bite marks and related topics, he had never been qualified as an expert on “causation, direction of force or magnitude of force in relation to fractures” [at paras. 15-16].

Although Dr. Wood has intensive experience working with jaws — trying to avoid jaw fractures in dental work on cancer patients, removing jaws from dead people for identification purposes, prying jaws open for identification purposes, etc., none of this vast array of interesting work involved causation or magnitude or direction of force. Specifically, his very distinguished forensic work has not been in these areas. [at para. 10].

5:60 Ophthalmology

R. v. Munoz-Hernandez, 2015 CarswellOnt 2376 (Ont. S.C.J.)

Crown Expert: Dr. Asim Ali

Munoz-Hernandez was charged with second degree murder in the death of his girlfriend’s five-and-a-half month old son. The child sustained a fatal brain injury. The Crown alleged that the injury was caused by shaking, blunt force trauma or a combination of both [at para. 4].

Dr. Ali was qualified as an expert in pediatric ophthalmology and the evaluation of eye trauma.

Dr. Ali examined the child’s eyes shortly after the injury and prior to him being removed from life support. He opined that the extensive hemorrhaging he observed in the eyes was caused by abusive head trauma or a severe crushing injury to the skull. Dr. Ali did not observe any signs of external trauma to the eyes. Dr. Ali provided evidence about the absence of a genetic disorder in the child that could lead to hemorrhaging in the eyes. Moreover, given the extent of the injuries Dr. Ali opined that he would not expect that a single blow could have caused the damage.

Dr. Ali’s evidence was called by the Crown to refute the accused’s version of events which included a possible accidental cause of the injuries.

5:70 Pathology

R. v. Rothgordt, 2014 CarswellBC 1947, 2014 BCSC 1215 (B.C. S.C.), affirmed 2017 CarswellBC 1559 (B.C. C.A.)

Crown Expert: Dr. Craig Litwin

Kim Rothgordt was charged with second degree murder in relation to the killing of James Shannon. Shannon was killed by Rothgordt after the latter delivered numbers blows to Shannon’s head during or immediately after a pre-arranged sexual encounter. The Crown’s theory was summarized as follows by the trial judge:

The Crown’s theory as stated in their written argument is that on February 13, 2008 Mr. Rothgordt killed Mr. Shannon by beating him with a hammer in Mr. Shannon’s bedroom after having consensual sex with him. Mr. Rothgordt then called his son, Ryley Lockwood, to come to Mr. Shannon’s residence, which his son did. Then Mr. Rothgordt left Mr. Shannon’s residence with Mr. Lockwood only to return and spend several more hours in Mr. Shannon’s residence before making his way to the nearby 7-11 store on the morning of February 14, 2008. Mr. Rothgordt then took a cab to the hostel, where he was arrested by police a little while later after causing a disturbance. The Crown says Mr. Rothgordt then “faked” the suicide attempt on February 16, 2008 so he could hide out in the psychiatric ward of the Port Alberni hospital to consider his predicament. He decided to cover his tracks and enlisted his friends and family to steal and destroy evidence, while at the same time leading the hospital staff and police to believe he was the victim of a sexual assault and that his assailant was still alive. He told many conflicting stories regarding his encounter with Mr. Shannon, none of which were true. [Para 26].

The issues at trial related to whether the killing was either self-defence or occurred while Rothgordt was too intoxicated to form the specific intent for murder or was the result of provocation.

Several experts were called at trial. This included Dr. Craig Litwin. He was qualified as an expert in forensic pathology. Dr. Litwin testified that the cause of death was blunt force injuries to the head of the victim. The findings were summarized by the court as follows:

At autopsy, the body was in a moderate to advanced state of decomposition. There were multiple lacerations, contusions and fractures to the left side of the head associated with subarachnoid and intraparenchymal cerebral hemorrhage. There was a deeply penetrating laceration to the left eye. A candle was inserted deeply through the right eye socket and associated with injury to the right eye, the skull and subjacent brain. There were four stab wounds to the right side of the abdomen with a knife remaining in situ in one of the stab wounds (stab wound “A”). Two of the stab wounds (“A”, “B”) passed through the abdominal wall and injured the liver and stomach. The remaining stab wounds did not injure any vital structures. There were two lacerations and four cuts or lacerations to the left side of the neck. One laceration was associated with injury to the thyroid cartilage and bleeding. The remaining lacerations and cuts or lacerations did not injure any vital structures, but caused bleeding. Examination of the heart revealed moderate atherosclerosis. There was wax-like material on the left side of the chest and shoulder, and dirt-like material, plant material and fragments of highly reflective material on the body. Toxicology testing of postmortem specimens was positive for ethanol and carboxytetrahydrocannabinol. [Para 318].

Included in the relevant evidence, the court identified the following aspects of Dr. Litwin’s evidence:

It is necessary to say more about the first group of injuries. Dr. Litwin described blunt force injuries as the application of blunt force causing injuries that include bruises, contusions, bleeding into the skin with the skin intact, abrasions, lacerations causing tearing of the skin and fractures. In this case he remarked upon the large areas of black and purple discolouration from the base of the nose to the left eye and across the eye and to the left side of the head, a large swath of crescentic injuries across the left side of the head and the corner of the left eye. Beneath these areas on the left side of the face Dr. Litwin found many broken bones of the skull, whereas the skull on the right side was intact. He testified that Mr. Shannon’s skull with its extensive skull fractures looked similar to the shell of a hardboiled egg that had been struck by a spoon. There were many broken pieces of skull under the left side of his nose, under the left eye and the left side of the head, from the back of the left eye to the left ear. There were also skull fractures along the base or floor of the skull from the left side of the head to the right. He indicated that the two pieces of bone found by police, one found on the bed and one found on the floor, came loose during the application of blunt force. Dr. Litwin said that the skull is a hard object designed to protect the brain and a very large amount of force is required to break a skull that is surrounded by layers of tissue. For it to be broken and for pieces to come loose requires large-scale tearing of the tissues in that area. Dr. Litwin concluded that a minimum of six blunt force impacts to Mr. Shannon’s head had occurred. These injuries appeared consistent with having been caused by a hammer. In particular, a semi-circular area was noted in Mr. Shannon’s skull itself that roughly reflected the contour of the head of the hammer whereas usually impact in the skull is reflected by linear fractures (Exhibit 5, Photo 13).

Dr. Litwin testified that the patterned injury to Mr. Shannon’s left shoulder (Exhibit 5, Photos 11-12) could have been created by one object with two protruding surfaces spaced apart and aligned, similar to the two tines of the claw on a hammer. Dr. Litwin considered the four injuries in a line up Mr. Shannon’s throat (Exhibit 5, Photo 7) to be consistent in shape with the injury to Mr. Shannon’s left shoulder and thus also caused by the claw of the hammer. Dr. Litwin concluded that the injury to the shoulder and the four similarly-shaped injuries to the neck constituted five separate blows consistent with being delivered by the claw of a hammer. He said the two additional injuries higher up the neck and more under the jaw could also have been caused by the claw of the hammer but they were less distinct injuries.

In terms of defensive wounds, Dr. Litwin noted that Mr. Shannon had a few abrasions on his extremities that he did not consider to be defensive wounds, but the injury to his left shoulder could have occurred during a reflexive movement of his arm to turn away from a perceived threat. [Paras 322-324].

The court then reviewed two hypotheticals put to Dr. Litwin and his evidence in relation thereto:

The Crown put two hypothetical scenarios to Dr. Litwin. The first related to the type of injuries he would associate with a consensual act of erotic asphyxiation where a man’s leather belt was applied and tightened slowly around the other’s neck without any struggling or twisting on the other’s part to the point that the blood flow to the brain was partially cut off, but not to the point that the other person was rendered unconscious. Dr. Litwin said that injuries occur when sufficient force is applied to cause damage to tissue. In this scenario where the ligature was being applied in a controlled fashion he said he would not expect any significant injury to the internal or external part of the neck, although redness to the skin may occur that would later dissipate.

In the second scenario put to Dr. Litwin the belt was applied with the intent to assault and was tightened rapidly with significant force several times in a struggle that lasted at least five minutes. The person against whom the belt was being applied was fighting, twisting and turning, grabbing at the belt with both hands and engaged in a life and death struggle in which the belt was being tightened to the point that the person could barely breathe. The person with the belt around their neck weighed 180 to 185 pounds and was dragged ten to 15 feet across the floor and then placed on his back and a hammer was pushed forcefully across his neck to the point he could hardly breathe. Dr. Litwin indicated that he could not predict the likely injuries with absolute certainty because each situation is unique. However, where there was significant rubbing to the neck in a rotating fashion, it could be expected to cause abrasion. The constriction and dragging would cause bruising and the defensive moves with the hands could result in bruising and scraping as the fingers were forced under the constricting force, but not necessarily. The more vigorous the struggle the more likely these injuries. [Paras 324-326].

This evidence was ultimately relied upon by the court wherein it concluded, inter alia:

Turning to the number of blows and the autopsy evidence of Dr. Litwin, I find that Mr. Rothgordt delivered a minimum of six blows to the left side of Mr. Shannon’s head with the hammer using great force. Those blows shattered the left side of his skull and were delivered with such force that two pieces of Mr. Shannon’s skull were found in the bedroom, one on the left side of the bed and the other across the room on the floor. Also indicative of great force was the fact that Mr. Shannon’s skull bore a semi-circular impression that roughly reflected the contour of the head of the hammer as observed by Dr. Litwin. I find that the same hammer wielded by Mr. Rothgordt delivered a minimum of five additional blows to Mr. Shannon, one to his left shoulder and four more to the area of his neck and throat. The hammer was flipped around when at least three of these injuries were delivered so that the two tines of the hammer penetrated the tissue leaving the patterned injuries noted by Dr. Litwin. Of the four injuries on the neck, two were patterned as described; and the two further up the neck closer to the jaw were less distinct but could have been caused by the claw of the hammer. The wound to the left shoulder was patterned. [Para 371].

R. v. France, 2017 CarswellOnt 5547 (Ont. S.C.J.)

Crown Expert: Dr. Michael Pollanen

France was charged with second degree murder in the death of Nicholas Cruz. Nicholas was two years old at the time of his death. France was the live-in partner of Nicolas’ mother. In the weeks prior to his death Nicholas lived with his mother and France — they were the only two people who had access to Nicholas during this time.

On July 14, 2013 Nicholas was brought to the hospital by his mother and France. Nicholas was already dead. An autopsy was performed and it was determined that he died as “a result of septic shock arising from injuries to his intestines caused by a blunt force trauma to his abdomen.” [at para. 2] Nicholas had other injuries on his body but none were related to his death.

The Crown sought to call Dr. Pollanen, a forensic pathologist to testify about the cause and mechanism of Nicholas’ death.

The defence position on the expert evidence was summarized by the court as follows:

The defence did not challenge the qualifications of Dr. Pollanen to provide expert evidence in this area and did not dispute Dr. Pollanen’s opinion that Nicholas died of sepsis after his intestines ruptured as a result of a blunt force trauma to the abdomen. The defence also did not object to Dr. Pollanen testifying as to the nature of the other injuries on Nicholas’ body and the likely timing of all of the injuries, including the blunt force trauma to the abdomen. However, the defence objected to the admissibility of some portions of Dr. Pollanen’s proposed evidence, specifically with respect to: (1) whether the blunt force trauma to the abdomen was deliberately inflicted as opposed to being accidental; (2) whether he could draw an inference that the trauma to the abdomen was an assault based on the other injuries to Nicholas; (3) whether he could testify as to the probabilities of the abdominal injury being accidentally caused; (4) whether he could use terms that might be confusing to the jury, such as injuries being “consistent with” certain causes or the force of the abdominal trauma being “significant;” and (5) the nature of hypothetical questions that could be put to Dr. Pollanen. [at para. 4]

Dr. Pollanen testified on the voir dire and the court limited the scope of Dr. Pollanen’s anticipated evidence. The Court held that:

(a)    Dr. Pollanen could provide his expert opinion as to the cause of death and mechanism of death, as well as the nature of the other injuries on Nicholas’ body and the timing of all injuries;

(b)   Dr. Pollanen would not be permitted to testify as to whether an assault was more likely to have caused the injury than an accidental fall, nor would he be permitted to express an opinion on the probabilities of one cause as opposed to another;

(c)    Dr. Pollanen would not be permitted to express an opinion as to whether the other injuries to Nicholas made it more likely that the abdominal injury was caused by an assault;

(d)   Dr. Pollanen would not be permitted to testify that the injury to Nicholas’ abdomen was caused by a “significant” blow, as this would be likely to be seen by the jury as an opinion on the degree of force used;

(e)    Dr. Pollanen should avoid using language to say that the injuries were “consistent with” an assault, but rather should use language such as the injuries could have been caused this way, or it is possible they were caused this way; and

(f)    Any hypothetical question put to Dr. Pollanen should not be so detailed that it mirrors the facts of this case exactly and essentially asks him to answer the very question the jury is required to answer. [at para. 5]

An important aspect of the Court’s reasoning related to the risk of unconscious bias. The Court held that:

There is no doubt that Dr. Pollanen is an expert in his field. Indeed, he is one of Canada’s leading experts in forensic pathology. But no pathologist can possibly be an expert in every variable of every single cause of death that can occur in the human body. Dr. Pollanen himself recognized in his evidence and said that he read up on some of the literature on abdominal trauma prior to doing the post-mortem on Nicholas. However, in undertaking that research, Dr. Pollanen only consulted literature on assaults causing abdominal trauma in children. He did not even consider looking at the literature on other causes of intestinal injury in children. In taking this approach, there is a concern that he was predisposed to see this case as an assault and failed to keep an open mind on other possible explanations.

I am sure this was an unconscious bias, but it was a bias nevertheless. I am not suggesting that Dr. Pollanen was not independent. I am not suggesting that he delivered an opinion he believed would be favourable to the police or the Crown. On the contrary, I accept that he considered himself to be completely neutral. However, he started his task with the mindset that this child had been the victim of assault and he approached everything thereafter from that mindset, including his testimony in court, and in particular his testimony at the preliminary inquiry. [at paras. 45-46]

R. v. Monckton, 2017 CarswellOnt 8247 (Ont. C.A.)

Crown Expert: Dr. Michael Pollanen

Monckton was convicted of second degree murder in the death of Keagan Davis. Keagan was just two-and-a-half years old; the son of girlfriend. Monckton was also convicted of assault causing bodily harm in relation to injuries Keagan suffered in the weeks leading up to his death. [at para. 1]

Monckton appealed both convictions and sentence. The appeal was dismissed. [at para. 5]

In assessing the merits of the appeal, the Court reviewed the medical evidence tendered at trial. This included the evidence of Dr. Michelle Shouldice, an expert in pediatrics and Dr. Michael Pollanen, an expert in forensic pathology.

Dr. Pollanen was qualified as an expert in forensic pathology “identified the cause of death as blunt abdominal trauma in a child with head injury and multiple other injuries of varying age.” [at para. 26]

Dr. Pollanen’s evidence included a detailed description of the numerous injuries to Keagan. Dr. Pollanen’s opinion was that:

Keagan’s injuries were indicative of child abuse. He rejected CPR as the cause of Keagan’s death. He explained that there was no demonstrable, non-traumatic cause for his sudden collapse or death.

Dr. Pollanen was challenged on his estimates of the timing of Keagan’s injuries. He agreed that Keagan’s recent injuries could have been 18 to 24 hours old. However, Dr. Pollanen was generally of the view that Keagan’s recent abdominal injuries were inflicted within minutes to hours of death, and certainly “around the time of death.”

Similarly, with respect to Keagan’s fractures, Dr. Pollanen agreed that it could take up to 16 weeks for secondary calluses to form around the healing fractures. However, he qualified this answer in the following way: “But again, if we are going to talk about specific weeks, then if you want a more precise answer, I would have to check the medical literature on that.” [at paras. 36-38]

Dr. Shouldice and Dr. Pollanen agreed that “with respect to the healing process of the forearm (. . .) it could take up to six months, especially if the arm was not immobilized” [at para. 41]

In considering the grounds of appeal related to inconsistent verdicts, reasonableness of the convictions, and the instructions to the jury the Court of Appeal referred to the expert evidence of Dr. Pollanen and Dr. Shouldice. The Court dismissed the appeals against convictions and sentence.

R. v. Magoon, 2016 CarswellAlta 2435 (Alta. C.A.)

Crown Expert: Dr. Chris Milroy

Marie Magoon and Spencer Jordan were in a common law relationship. Jordan was the biological father of six year old Meika. After a week in the care of Jordan and Magoon, Meika was brought to hospital where she died as a result of severe injuries. Jordan and Magoon were convicted after trial of second degree murder; the Crown appealed arguing that they should have been convicted of first degree murder. Jordan and Magoon appealed their convictions.

Paramedics were called to Jordan and Magoon’s residence where they discovered Meika unconscious and not breathing on her own.

She had suffered multiple injuries, including a laceration to her pancreas, a tear of the liver, at least five serious blows to the head (resulting in a subdural hematoma and cerebral swelling or edema), extensive bruising all over her body, matted and broken hair with clumps missing, and a significant burn on her hand. The appellants said that she had fallen down the stairs. Meika died in hospital the next day. [at para. 8]

Dr. Milroy was qualified as an expert in forensic pathology and testified that:

Meika died as a result of the combination of her abdominal and head injuries. The trial judge accepted Dr. Milroy’s opinion that, while the abdominal injury would not necessarily be fatal by itself, bleeding from that injury would have compromised the cardiovascular system, rendering Meika less able to deal with the head injuries. As such, the trial judge found it was a contributing factor to Meika’s death, and would have accelerated death by more than a de minimis factor.

Dr. Milroy also opined that:

the abdominal injury occurred less than 25 hours before Meika’s admission to hospital. Of the five separate, significant blows to Meika’s head, the evidence was not determinative as to which was the fatal blow. The trial judge accepted that the cerebral edema was caused by one or more of those impacts and that the fatal head injury or injuries occurred between one and eight hours before the paramedics arrived. Based on the expert evidence, she rejected the possibility that the fatal head injury could have been caused by a single fall down the stairs, as had been suggested by the appellants. [at para. 10]

The trial judge accepted this body of evidence.

Dr. Milroy and other medical experts testified that Meika would have exhibited numerous symptoms after sustaining the various injuries. Those symptoms were summarized as follows:

The abdominal injury to the pancreas would cause significant pain. As to the fatal head injury or injuries, the experts agreed that in no scenario would Meika appear happy and healthy until a sudden collapse. There was most likely a period of unconsciousness and/or some gradual deterioration in her condition. The trial judge accepted Dr. Milroy’s evidence that Meika may have lost the ability to communicate or respond to painful stimulus, and that she may have appeared groggy or fatigued. Dr. Milroy’s evidence was that after the fatal blow, she would not have been able to run up and down stairs, although she may have tried to do so if forced. [at para. 11]

Jordan and Magoon’s appeal of their convictions failed. The Crown appeal was granted and verdicts of guilty for first degree murder were substituted. In accepting the Crown appeal, the Court noted the significance of the expert evidence as it related to the legal standard of substantial cause. The Court held that:

the trial judge found that both appellants were active participants in the killing of Meika. She conducted a lengthy analysis of causation for second degree murder, and concluded that the appellants were co-participants in that crime. She found that the abdominal injury caused by Jordan was a contributing cause of Meika’s death and could not be separated from it. With respect to the head injuries, the trial judge accepted the expert evidence that there were at least five significant hits to Meika’s head, and that the fatal blow or blows caused the edema. She found that each of Jordan and Magoon had directly inflicted head injuries capable of being the fatal blow or one of the fatal blows that caused Meika’s death. She further found that both appellants had the necessary mens rea and “directly participated in the assaults that led to Meika’s death” at para. 160. [at para. 135]

R. v. Biddersingh, 2015 CarswellOnt 20317 (Ont. S.C.J.)

Crown Experts: Dr. Michael Pollanen; Dr. David Chiasson; Dr. Stanely Zlotkin

Everton Biddersingh was charged with first-degree murder in relation to the death of his 17-year-old daughter. Her remains were discovered, partially burned, in a suitcase which had been set on fire. On autopsy her body was found to weigh 50 lbs and she had 21 ante-mortem bone fractures.

At trial, the Crown sought to call expert evidence to establish that she died from starvation. Biddersingh objected. He argued that any such evidence was “speculative, as it is premised on an entirely unreliable pre-death weight estimate of the deceased arrived at without any quantifiable scientific basis”.

Dr. David Chiasson was a forensic pathologist. He conducted the initial post-mortem in 1994. He concluded, at that time, that the cause of death was undetermined.

Dr. Michael Pollanen was the Chief Forensic Pathologist for Ontario. He conducted a review of the case. He found “diatoms” in the fluid found in the right maxillary sinus and bone marrow from the victim’s right and left femurs. He concluded that drowning was either the cause or a major contributing factor in the death.

Dr. Stanley Zlotkin was an expert in Pediatrics and Nutrition. He reviewed the reports and concluded that the victim would have weighed approximately 55 lbs prior to being burned (based on post-burning weight of 50 lbs). He concluded that this weight, for a girl of her age, established that she was “severely malnourished at the time of her death” and would have had inadequate food intake for months prior.

At the preliminary hearing Dr. Pollanen offered “five major observations from the autopsy results”:

1.     She was starved from a prolonged lack of food;

2.     She was injured resulting from blunt force trauma causing 21 fractures;

3.     A pepper was inserted in her vagina;

4.     She inhaled water resulting in drowning, or drowning as a cofactor in her death, or near drowning; and

5.     She had been folded up and placed into a suitcase and set on fire after death.

The court summarized the objections of counsel to the admission of Dr. Pollanen and Dr. Chiasson as follows:

Everton Biddersingh has applied to have excluded the opinion evidence of Dr. Michael Pollanen that starvation is a possible differential diagnosis as to the cause of death of Melonie Biddersingh, as there is no factual basis for his speculation that death could have occurred by starvation in this case. His reliance on the opinion of Dr. Zlotkin is no more than speculation because Dr. Zlotkin’s opinion as to pre-death weight was without any scientific foundation and no more than a speculative guess.

Initially, the defence contended that the Crown had failed to provide proper notice of an expert opinion that would significantly impact the dynamics of the trial by putting forth a new cause of death. Rather than seek an adjournment as a remedy, the defendant objects not only to the opinion evidence of Dr. Pollanen based on the hypothetical but also to the Crown adducing evidence from any of the forensic expert witnesses, specifically Dr. David Chiasson and Dr. Zlotkin as to the estimated pre-burnt weight of Melonie Biddersingh’s body on the basis it is no more than a guess. [Paras 12-13].

This objection was dismissed.

Dr. Pollanen’s differential diagnosis of starvation was based on Dr. Zlotkin’s report which includes an estimate of Melonie Biddersingh’s pre-burnt body weight which possesses indicia of reliability. It is common place for forensic pathologists to rely upon the reports and opinions of experts in other fields to draw conclusions about the cause of death, which is noted in Lavallee carries with it the circumstantial guarantees of trustworthiness.

In this instance, Dr. Chiasson’s opinion as to the percentage of weight loss meets threshold reliability. Dr. Chiasson’s estimate of weight loss is based on his education and experience as a forensic pathologist and qualified by the limitations he cited. He is in a position based on his experience as a pathologist to assist the trier of fact in an area with which they have no experience. It is not the court’s role to take the matter from the hands of the jury. It is for the jury to determine its ultimate reliability, as the trier of fact. The jury will assess its weight in the context of all the other evidence.

The defendant’s application to disallow Dr. Pollanen testifying as to the differential diagnosis of starvation in the hypothetical and to prevent the other experts, Dr. Chiasson and Dr. Zlotkin from giving evidence as to an estimated pre-burnt weight of Melonie Biddersingh’s body is dismissed. [Paras 51-53].

R. v. MacLeod, 2014 CarswellNS 425 (N.S. C.A.), affirmed 2014 CarswellNS 942 (S.C.C.)

Crown Expert: Dr. Matthew Bowes

Defence Expert: Dr. Toby Rose

Clarence MacLeod was charged with second-degree murder. The victim, his girlfriend of 18 months, was found in her apartment by her son and a building employee. There were no obvious signs of trauma. MacLeod was found standing over the victim holding a large butcher knife. When he was found he plunged the knife into his own abdomen. He survived.

At trial the Crown called Dr. Matthew Bowes. He was qualified to give an opinion as to the “manner and cause of death” and the interpretation of injuries. Dr. Bowes is the Chief Medical Examiner for Nova Scotia.

Dr. Bowes was of the opinion that that the manner of death was homicide, cause strangulation. Dr. Bowes declined, however, to opine on whether the strangulation was manual or by ligature. In support of his opinion Dr. Bowes identified the following:

•      A large number of petechial haemorrhages (petechiae) on the victim’s face and in her eyes — while these can occur from coughing or vigorous crying, as well as from heart attack, they are also a sign of strangulation;

•      Small abrasions on the nose, the left cheek and inside of the victim’s upper right lip;

•      Four round blue bruises on the back of each arm, referred to as “fingerprint bruises”;

•      A small bruise on the right neck;

•      A bruise to the right side of the tongue;

•      On dissection there was bruising to the “strap (neck) muscles”;

•      Haemorrhaging of the intrinsic muscles of the larynx.

Dr. Bowes made other findings as well — which were said to support Dr. Rose’s position that death was from atherosclerotic coronary artery disease. Those included:

•      Critical coronary disease.

•      “Worrying lesions” on two coronary arteries.

The defence called Dr. Toby Rose. She was qualified to give an opinion as to the manner and cause of death. Dr. Rose is the Deputy Chief Forensic Pathologist of the Ontario Forensic Pathology Service. She disagreed that death was from strangulation. It was her opinion that death was from “atherosclerotic coronary artery disease”. The manner of death was “undetermined” as the “cardiac arrhythmia could have been precipitated by stress brought on by a struggle”.

Dr. Rose opined that the bruising noted by Dr. Bowes was “simply caused by post mortem lividity.

MacLeod was convicted. He appealed. The appeal related to the trial judge’s failure to leave manslaughter to the jury — something the Crown sought but MacLeod opposed at trial. The Court of Appeal ordered a new trial notwithstanding the position of MacLeod at trial. The Supreme Court affirmed that decision.

5:80 Veterinary Medicine

R. v. Sanaee, 2016 CarswellAlta 1843 (Alta. C.A.)

Crown Expert: Dr. Karen Lang

Sanaee was convicted of causing unnecessary pain, suffering or injury to an animal — he appealed. Sanaee was the owner and operator of a day boarding facility for dogs. He provided training to assist with behavioural issues. Witnesses testified at trial that on two occasions they saw Sanaee use a cattle prod on dogs, causing then pain.

At trial Dr. Karen Lang, a veterinarian, was qualified as an expert on the appropriate discipline of small animals such as dogs.

In Dr. Lang’s opinion:

a cattle prod was not an appropriate training device for dogs as it produces an excessive amount of pain due to being designed for adult cattle, which are much larger and have thicker skin. Kristin McKenna, an animal behavioral consultant, was also qualified to give an expert opinion on appropriate training and discipline for animal behavior. It was her opinion that a cattle prod was not appropriate for use on dogs and is not considered a tool for dog training. [at para. 6]

Although the trial judge referred to the expert evidence in her reasons she also expressly concluded that the Court “did not need any expert evidence to find that a cattle prod should not have been used on a dog.” [at para. 8]

On appeal Sanaee argued that the trial judge erred by relying upon the evidence of Dr. Lang which was outside of the purported scope of her expertise. [at para. 10]

The Court of Appeal rejected this ground of appeal and held that:

[t]here is no need for the Crown to prove the exact technical specifications of the cattle prod or exactly what level of electric shock is excessive. The witnesses testified that the dogs “yelped, the body coiled as in a muscular contraction, and the dog appeared to be in a lot of pain”. It is not necessary for the Crown to prove just how the cattle prod caused that pain.

( . . . )

We reject the appellant’s argument. It is unreasonable to suggest that a device that is designed to deliver a meaningful shock to an animal many times larger than the dogs in question would not cause unnecessary pain or suffering in light of the testimony of the three Crown witnesses K.R., S.E. and N.K. which the trial judge was entitled to accept. [at paras. 15-16]

The Court noted that even a lay person could testify about their observations as to whether an animal was experiencing pain.

A non-expert witness is entitled to give opinions arising from compendious facts, such as bodily plight or condition and emotional state: R. v. Graat, [1982] 2 S.C.R. 819 (S.C.C.) at p 835. This principle applies to the condition of both persons and animals. [at para. 15]

R. v. Krajnc, 2017 CarswellOnt 6548 (Ont. C.J.)

Defence Expert: Dr. Armaity May (veterinarian)

Defence Expert: Dr. Lori Marino (cognitive behaviourist)

On June 22nd, 2015 a tractor trailer carrying 190 pigs stopped at a traffic light about 100m from its final destination — a slaughterhouse. Animal rights activists had gathered in anticipation of the truck’s arrival, including Ms. Krajnc. Some of the activists were talking to the pigs, some were petting them and some were giving them drinking water. The driver got out of the truck and approached Ms. Krajnc. He asked what she was doing. She replied that she was giving the pigs water as they were thirsty. The driver told her to stop and called her a rude name. Ms. Krajnc continued to give the pigs water until the truck drove off to the slaughterhouse. The exchange between Ms. Krajnc and the driver was recorded by other protesters. The driver reported the incident to his employer. The employer called police. The police charged Ms. Krajnc.

In her defence, Ms. Krajnc called four experts, two in the field of veterinary medicine.

Dr. Lori Marino was qualified to testify as an expert in neuroscience and animal behaviour and was permitted to give opinion evidence on “animal behaviour, self-awareness and intelligence of non-human animals, animal welfare, biopsychology of non-human animals and cognitive ethology.” [at para. 28]

Dr. Marino’s evidence was relevant to the defence argument that pigs were not property but in fact persons. In support of this argument Dr. Marino testified that pigs:

1.      like to roam and graze in a natural setting;

2.      will form social groups, usually several females and their offspring;

3.      have a very complex communication system;

4.      have a number of different personality traits and interact with each other in very interesting and complex ways;

5.      are similar to dogs in level of intelligence and in the emotional and psychological characteristics that they possess;

6.      empathize;

7.      experience joy and happiness;

8.      are sentient — capable of feeling good or bad depending on circumstances;

9.      suffer both physically and psychologically in a factory farm setting. [at para. 30]

Dr. Marino offered the expert opinion that pigs are persons. The court did not accept this opinion. The Court held that:

•      Dr. Marino was not qualified to express an opinion as to who or what, in law, constitutes a “person” or “property” [at para. 34]

•      The law in Canada is that pigs, like cats and dogs are property not persons [at paras. 35 and 37]

•      Dr. Marino was not qualified as an expert to give evidence on whether the treatment of pigs in factory farms constitutes torture [at para. 38]

Dr. May was qualified as an expert in veterinary medicine and animal welfare. Dr. May was permitted to give opinion evidence on “pig physiology and responses to stimuli and environmental conditions.” [at para. 41]

Dr. May testified that “in her opinion, the pigs were distressed, overheated, very thirsty and in immediate need of hydration.” [at para. 42]

The Court concluded that Dr. May was not an impartial expert. The Court held:

Firstly, even before Crown counsel argued that Dr. May was not impartial in her testimony, I had reached the same conclusion. Dr. May was clearly opposed to the transportation and slaughter of any animals for food purposes and this clearly coloured her testimony.

Secondly, she based her opinions on what she saw in the short video which had been produced by Ms. Krajnc and her supporters. This showed only a few of the 190 pigs that were on the truck.

Finally, I found her analysis to be less than scientific and of little if any assistance to the court. I did not need her evidence in order to see that the pigs were upset/ stressed, and that they eagerly accepted the water that was offered to them. [at paras. 45-47]

The Court noted that what would have been helpful was “an objective assessment of the degree of any distress and application of that to the governing regulations.” [at para. 49]

With respect to Dr. May’s evidence, the defence argued that once she had been qualified as an expert the trial judge was precluded from discounting her opinion on the basis that she was not impartial. The trial judge noted the following:

I reject that argument. I allowed her to express her opinions in order to assist me in making my decision. The final decision was still mine to make. Further, it was open to me to weigh every aspect of her evidence and to decide what weight, if any, to give it. Finally, in that regard, I will state that had I known then, what I know now, I would not have ruled the same way with respect to Dr. May being qualified to be an expert witness. [at para. 56]

Lastly with respect to the evidence of Dr. May and Dr. Marino the court explained that both:

(. . .) watched the same video and noted pigs in the truck were panting and frothing at the mouth which could be signs of inability to regulate temperature and that the pigs were probably over-heated and dehydrated. Further, from body language and squeals it looked to her like they were also obviously in psychological distress.

(. . .)

Further, it is clear that the industry is highly regulated and that it is being subjected to a high degree of public scrutiny by Ms. Krajnc and her supporters. I realize that Ms. Krajnc does not agree that the regulations are adequate. However the evidence presented on her behalf did not leave me with a reasonable doubt as to the fact that the pigs were being transported in compliance with those regulations here.

Finally, I note that despite the dire forecasts of Dr. May and Dr. Marino as to the health of the pigs, not one failed to make it off the truck. Not one was rejected by the slaughterhouse as being in an unsatisfactory condition. [at paras. 51, 53-54]

Notwithstanding these criticisms of these two experts the court ultimately acquitted Ms. Krajnc. [at para. 143]

R. v. Riesberry, 2014 CarswellOnt 14907 (Ont. C.A.), affirmed 2015 CarswellOnt 15653, 2015 CarswellOnt 15654 (S.C.C.), reasons in full 2015 CarswellOnt 19250 (S.C.C.)

Expert: Not Identified

Derek Riesberry was charged with fraud and cheating related offences. Riesberry was a licenced trainer of Standardbred horses. He was caught, however, on video injecting a horse, “Everyone’s Fantasy” with a syringe just prior to a race. The trial judge found he had injected the horse with epinephrine and/or clenbuterol. These are known to be potential performance enhancing drugs. The horse came in sixth. On a subsequent occasion Riesberry attempted to bring a syringe onto raceway property with the intent to inject another horse, “Good Long Life”. He was caught prior to injection.

The use of such drugs on race day is prohibited by the Ontario Racing Commission, Rules of Standardbred Racing. It was also prohibited for licensees other than official veterinarians to possess any syringe on raceway property.

At trial the Crown called an expert in veterinary medicine. The expert was qualified. The expert provided opinion evidence on two key points. First, the expert testified that a tracheal injection (which was done by Riesberry) is done to allow the drug to “pool in the trachea . . . and not be absorbed into the horse’s blood vessels until the horse was stimulated by exercise” — such as a race. The drug would then be inhaled and quickly provide a “potent stimulant”. Second, the expert testified that there was “no legitimate reason for such an injection.

The trial judge found that the injection (and attempted injection) was for the purpose of enhancing the performance of the horse(s). The trial judge however acquitted Riesberry. The Crown appealed. In reasons unrelated to the expert evidence the Court of Appeal overturned the fraud acquittal — entering a conviction — and ordered a new trial on the betting charge. The Supreme Court upheld that decision on appeal by Riesberry.

5:90 Pediatrics

R. v. Monckton, 2017 CarswellOnt 8247 (Ont. C.A.)

Crown Expert: Dr. Michelle Shouldice

Monckton was convicted of second degree murder in the death of Keagan Davis. Keagan was just two-and-a-half years old; the son of his girlfriend. Monckton was also convicted of assault causing bodily harm in relation to injuries Keagan suffered in the weeks leading up to his death. [at para. 1]

Monckton appealed both convictions and sentence. The appeal was dismissed. [at para. 5]

In assessing the merits of the appeal the Court reviewed the medical evidence tendered at trial. This included the evidence of Dr. Michelle Shouldice and Dr. Michael Pollanen.

Dr. Shouldice was qualified as an expert in pediatrics and the evaluation of suspected injuries in children.

Dr. Shouldice testified that:

(. . .) the bruising found over Keagan’s body was the result of multiple applications of force. She expected that a child with Keagan’s injuries would be in a lot of discomfort and would cry when the injuries occurred. Discomfort would continue for some time.

[and that]

Keagan’s abdominal injuries were significant and not typical of common toddler falls. A significant amount of force would be required to crush tissues within the abdomen. She explained that common symptoms of this type of injury in a child include vomiting, loss of appetite and changes in bowel habits. Dr. Shouldice said that children with abdominal trauma “just generally don’t appear well.” She testified that CPR could have caused the recent damage to Keagan’s mesentery, but ruled out CPR as a cause of his older mesentery injuries. She deferred to Dr. Pollanen on the timing of Keagan’s mesentery injuries. [at paras. 39-40]

Dr. Shouldice and Dr. Pollanen agreed that “with respect to the healing process of the forearm (. . .) it could take up to six months, especially if the arm was not immobilized.” [at para. 41]

In considering the grounds of appeal related to inconsistent verdicts, reasonableness of the convictions, and the instructions to the jury the Court of Appeal referred to the expert evidence of Dr. Shouldice and Dr. Pollanen. The Court dismissed the appeals against convictions and sentence.

R. v. G. (D.M.), 2016 CarswellNS 739 (N.S. S.C.)

Crown Expert: Dr. Alhfild J. Larson

DGM called 911 and reported that his 18 month old step daughter had choked on some water and had collapsed. Paramedics arrived and found the child badly bruised and semi-conscious. The child was rushed to hospital and later airlifted to a larger medical center. The child remained in hospital for three weeks and was under the care of Dr. Larson. DGM was charged with aggravated assault and assault causing bodily harm.

Dr. Larson was qualified to give expert evidence at trial in the field of pediatrics, the extent of the child’s injuries and their cause. Dr. Larson’s expertise included child abuse.

DMG denied having caused any of the injuries to the child.

In reviewing the expert evidence the noted that it must be:

well aware of the dangers associated with blindly accepting the expert’s report as to the cause of injuries. The Court is cognizant that the standard of proof in medical terms is very different than that applied in a criminal trial. The opinions of the expert who testified must be closely scrutinized to ensure that they are based on documented facts. [at para. 38]

The Court then reviewed Dr. Larson’s evidence and noted:

at the outset that Dr. Larson was an impressive witness. She was helpful and open minded in her responses. She was asked if she was prepared to carry out her primary duty to be impartial and objective. Her response was “absolutely”, recognizing the importance of that duty. [at para. 42]

Dr. Larson then commented on each of the injuries she noted and opined, where she could about the possible causes.

DGM was convicted of the aggravated assault and acquitted of the assault causing bodily harm. The Court relied significantly on the evidence of Dr. Larson in reaching these conclusions.

With respect to the aggravated assault the court noted that:

(. . .) any reasonable person who intentionally applies force, which Dr. Larson stated would have been significant, to a person of such tender age, would realize the force applied would place this infant at risk of suffering some kind of bodily harm. [at para. 222]

Similarly, in entering the acquittal on the charge of assault causing bodily the court observed that:

Dr. Larson in her evidence at trial and in her report was less certain as to the cause of arm injuries than the more serious ones that I have addressed. She concluded there were two arms fractures, a significant one to her distal humerus (upper arm) and one to her ulna (the bone in her forearm).

In her overall conclusion, she stated that on the balance of probabilities these fractures were more likely inflicted than accidental, because of growth or “elevation” around the ulna without an obvious fracture. [at paras. 227-228]

R. v. Turner, 2017 CarswellOnt 43 (Ont. S.C.J.)

Crown Expert: Dr. David Warren

Turner was charged with assault causing bodily harm to his infant daughter, Sofia. When Sofia was brought to hospital by Turner and her mother she was diagnosed:

as suffering from 29 fractures, twenty in the chest and nine elsewhere, including one of the skull, another of the left femur, as well as extensive bruising on the head, chest and legs. No explanatory history was given to hospital staff to account for Sofia’s injuries. No underlying metabolic or genetic explanation for her injuries was found. [at para. 4]

Police were called and Turner was arrested. Following a preliminary inquiry Turner was discharged and the Crown sought an order of certiorari from the Superior Court.

At the preliminary inquiry the Crown called Dr. David Warren. Dr. Warren was qualified as an expert in pediatric medicine with particular expertise in childhood injuries and child abuse.

Dr. Warren concluded that:

Sofia’s injuries were not accidental. The bruising observed on her body would be rare in a non-ambulatory child. He noted that “it has to be an external force from another individual or another projectile in a child of this age to cause bruising”. He also testified that swaddling an infant would not explain the rib fractures. [at para. 5]

With respect to the skull fracture Dr. Warren allowed for an accidental fall as a possible mechanism for that injury.

Finally, with respect to the fracture of the femur, Dr. Warren concluded that the fracture had occurred shortly before the infant was brought to the hospital.

Sofia’s mother also testified at the preliminary inquiry and denied causing the injuries.

The Court concluded that the preliminary hearing judge had erred in discharging Turner. In so doing the Court relied on the testimony of Dr. Warren. The Court found that the trial judge:

erred respecting the evidence of opportunity. Ms. Mosher’s evidence was that while she slept, Mr. Turner cared for Sofia on the morning of the day Sofia was taken to hospital. He is said to have mentioned to Ms. Mosher that Sofia’s left leg “looked funny”. Dr. Warren testified that the femur fracture occurred within hours to a day of the emergency room attendance. This was part of the whole of the circumstantial evidence before him and taken cumulatively with the other evidence could allow a reasonable and properly instructed jury to convict. [at para. 17]

R. v. Rochon-Frosk, 2016 CarswellMan 561 (Man. Prov. Ct.)

Crown Expert: Dr. Bodnarchuk

Rochon-Frosk along with his husband adopted Baby L. Within six weeks of the adoption Baby L was admitted to hospital — she was unresponsive. The doctors concluded that Baby L had “significant injury as a result of fractures to her leg, ribs and skull, as well as irreparable brain damage as a result of acceleration/deceleration type injuries.” [at para. 2]

Rochon-Frosk provided an inculpatory statement to police where he:

admitted to throwing Baby L in the air, hitting her head against a wall and dropping her several feet on to a tiled floor, and squeezing her ribs twice in a fit of frustration. He also admitted that he did not tell anyone about these incidents, nor seek medical care for Baby L despite symptoms of significant distress. [at para. 3]

Although Rochon-Frosk plead guilty to charges of failing to provide the necessaries and assault causing bodily harm, he claimed to have lied in his statement to police. The Crown sought to prove the admissions as aggravating factors on sentencing and thus embarked on a Gardiner hearing.

Rochon-Frosk testified and the Crown then called upon Dr. Bodnarchuk to rebut the accused’s evidence at the hearing.

Dr. Bodnarchuk was called by the Crown as both the victim’s treating pediatrician and as an expert qualified in pediatrics with a specialization in the area of child abuse and identification of child abuse.

The doctor opined that “the mechanism of injury described by Rochon-Frosk in his June 24, 2014 statement is more likely to have caused those fractures, than the mechanisms described in his oral evidence.” [at para. 43]

In accepting Dr. Bodnarchuk’s evidence the court noted the following:

While this Court does note that Dr. Bodnarchuk made several concessions in response to suggestions by defence counsel about other types of injury that could have resulted in injury, many of those suggestions were hypotheticals with no evidentiary foundation. [at para. 59]

The Court did not accept the accused’s evidence and found beyond a reasonable doubt that the rib injuries were caused by Rochon-Frosk squeezing Baby L’s ribs out of frustration. [at para. 60]

5:100 Plastic Surgery

R. v. Edrissi, 2016 CarswellBC 3009 (B.C. S.C.)

Crown Expert: Dr. Mark Hill

Crown Expert: Sylvie Fortin

Edrissi was charged with a count of defrauding the Worker’s Compensation Board [WCB] of more than $5000. The Crown alleged that while Edrissi was receiving “WCB wage loss benefits, the accused fraudulently misrepresented to the WCB that he was disabled from returning to work and failed to disclose to the WCB that he had returned to work earning an income.” [at para. 2]

The accused and his wife ran a company. While cutting baseboards the accused cut his hand with a table saw. The injury was nasty and required surgical intervention. Edrissi filed for and received WCB benefits. He was referred to Dr. Mark Hill for follow up.

Dr. Hill is a plastic surgeon who specialized in hand microsurgery. A second surgery was performed by Dr. Hill to improve function and follow up was done with a physiotherapist. WCB determined that the injury would prevent Edrissi from returning to the carpentry aspects of his job and continued to provide him with wage loss benefits.

At a follow up appointment, the WCB doctor observed calluses on Edrissi’s hand that was inconsistent with him not working. The doctor concluded that Edrissi should be observed in the community and this investigation revealed that Edrissi was still involved in home renovations. [at para. 19]

At trial, the Crown called Dr. Hill who was qualified as an expert in plastic surgery and microsurgery with a speciality in repairing severed tendons and hand/arm injuries of the nature sustained by Edrissi. He was qualified as an expert on consent of the defence.

Dr. Hill:

described the injury as “moderate” in terms of an injury that a general practitioner or general surgeon would see, but for a hand specialist such as him, it required a relatively straightforward procedure to repair. Simply put, the repair involved stitching the severed tendons back together. [at para. 28]

Sylvie Fortin was qualified as an expert in occupational therapy. She testified about the treatment she provided for the accused.

Ms. Fortin testified that:

calluses are typically caused by the irritation of skin through rubbing something. Once a callus has developed, it typically take a long time to go away. Indeed sometimes a callus can remain indefinitely. She agreed it would be possible for the accused to develop calluses from the exercises she gave him to do. [at para. 54]

The accused testified and the court accepted that:

the accused understood that the WCB benefits he was receiving related to him wearing his hat as a worker, as opposed to as a supervisor, and that in the specific circumstances of this case, it was not unreasonable for him to have held that belief. I am not satisfied beyond a reasonable doubt that the accused was engaged in fraudulent behavior within the meaning of s. 380(1)(a) of the Code. [at para. 210]

5:110 Occupational Therapy

R. v. Edrissi, 2016 CarswellBC 3009 (B.C. S.C.)

Crown Expert: Dr. Mark Hill

Crown Expert: Sylvie Fortin

Edrissi was charged with a count of defrauding the Worker’s Compensation Board [WCB] of more than $5000. The Crown alleged that while Edrissi was receiving “WCB wage loss benefits, the accused fraudulently misrepresented to the WCB that he was disabled from returning to work and failed to disclose to the WCB that he had returned to work earning an income.” [at para. 2]

The accused and his wife ran a company. While cutting baseboards the accused cut his hand with a table saw. The injury was nasty and required surgical intervention. Edrissi filed for and received WCB benefits. He was referred to Dr. Mark Hill for follow up.

Dr. Hill is a plastic surgeon who specialized in hand microsurgery. A second surgery was performed by Dr. Hill to improve function and follow up was done with a physiotherapist. WCB determined that the injury would prevent Edrissi from returning to the carpentry aspects of his job and continued to provide him with wage loss benefits.

At a follow up appointment, the WCB doctor observed calluses on Edrissi’s hand that was inconsistent with him not working. The doctor concluded that Edrissi should be observed in the community and this investigation revealed that Edrissi was still involved in home renovations. [at para. 19]

At trial, the Crown called Dr. Hill who was qualified as an expert in plastic surgery and microsurgery with a speciality in repairing severed tendons and hand/arm injuries of the nature sustained by Edrissi. He was qualified as an expert on consent of the defence.

Dr. Hill:

described the injury as “moderate” in terms of an injury that a general practitioner or general surgeon would see, but for a hand specialist such as him, it required a relatively straightforward procedure to repair. Simply put, the repair involved stitching the severed tendons back together. [at para. 28]

Sylvie Fortin was qualified as an expert in occupational therapy. She testified about the treatment she provided for the accused.

Ms. Fortin testified that:

calluses are typically caused by the irritation of skin through rubbing something. Once a callus has developed, it typically take a long time to go away. Indeed sometimes a callus can remain indefinitely. She agreed it would be possible for the accused to develop calluses from the exercises she gave him to do. [at para. 54]

The accused testified and the court accepted that:

the accused understood that the WCB benefits he was receiving related to him wearing his hat as a worker, as opposed to as a supervisor, and that in the specific circumstances of this case, it was not unreasonable for him to have held that belief. I am not satisfied beyond a reasonable doubt that the accused was engaged in fraudulent behavior within the meaning of s. 380(1)(a) of the Code. [at para. 210]

5.120 Sexual Assault Examiner

R. v. Smith, 2016 CarswellOnt 16463 (Ont. S.C.J.)

Crown Expert: Dr. Eisner

Smith was convicted after trial of aggravated sexual assault. The victim was more than 20 years younger than the offender at the time. The victim was at the offender’s residence as a guest at a party. Both consumed alcohol. The court described the attack as follows:

The complainant eventually passed out or fell asleep. She awoke in a bed with the defendant attempting to remove her pants. The complainant resisted. The defendant turned the complainant over so that she was on her stomach, held her wrists tightly behind her back and then forcibly removed her pants and underwear.

The defendant proceeded to choke the complainant with a cloth ligature, concurrently having vaginal sexual intercourse with her. The complainant was unable to breathe and thought she was “going to die”. Her vision was “starry” and she then “just went all black.” [at paras. 3-4]

Dr. Eisner was qualified as a medical expert at trial and offered the following opinion with respect to the injuries that the complainant sustained:

compression. . . with some object“ caused the ”sharply defined“ ligature marks on the complainant’s neck. He was of the opinion that ”the constellation of the facial petechial, subconjunctival hemorrhaging and ligature marks meant that (the complainant) was strangled quite severely.“ Dr. Eisner testified that he had never before seen a surviving victim with such severe symptoms of strangulation. [at para. 8]

The expert evidence played a key role in the sentencing hearing of the offender. In assessing the aggravating factors the court held that:

The severity of the strangulation and the risk of loss of life: In my opinion, this is the most significant aggravating factor to be addressed on sentencing. The complainant testified that she was choked with some kind of cloth around her neck. She could not breathe, her vision “seemed just like stars . . . starry.” She was thinking “I was going to die” before “it just all went black.” The Crown medical expert testified that the complainant “was strangled quite severely” and that he had never before seen a surviving victim with such severe symptoms of strangulation. This witness also opined that “it is easy to die from strangulation”. [at para. 56]

The Court went on to impose a sentence of 10 years. [at para. 65]

R. v. S. (J.S.), 2016 CarswellBC 3524 (B.C. C.A.)

Crown Expert: Dr. Young

JSS was convicted by a jury of assault and sexual assault on his wife, KH. The offences took place during the course of what was described as a troubled marriage and included three incidents of assault ranging from grabbing, pushing and punching, and the sexual assault involved forced fellatio and forced vaginal and anal intercourse.

JSS appealed his convictions. One of the grounds of appeal related to the trial judge’s ruling on the admissibility of expert evidence.

Dr. Young was qualified as an expert medical practitioner, sexual assault examiner and family physician. [at para. 61]

Dr. Young testified about the victim’s injuries and her observations.

In her evidence in chief, Dr. Young described K.H.’s injuries and the pain she showed when her anus was swabbed. Dr. Young told the jury that she applied a dye to K.H.’s anus to detect damage to the skin. She said she observed blood when she did the swab. Dr. Young said the fact that K.H. was crying out suggested that K.H. was experiencing a significant amount of discomfort even though she only touched the area lightly with the swab. [at para. 61]

Dr. Young was questioned by both Crown and defence about the level of force required to inflict the injuries and whether such injuries could be equally consistent with consensual sexual activity as non-consensual activity.

Immediately following her evidence the trial judge cautioned the jury as follows:

THE COURT: . . . I just want to — it’s been pretty clear from the questions and answers and the Doctor was very careful to distinguish her opinion about medical findings from the issue of consent in this case, but I just want to re-state what I think you already know, that the question of whether or not the Crown has proven beyond a reasonable doubt the absence of consent will ultimately be one for you, on the basis of all of the evidence.

The Doctor can assist you with respect to her medical findings and she’s allowed to express an opinion about the effect of certain injuries and so on, but at the end of the day I don’t want you thinking that an expert witness’ opinion is conclusive on that issue. That will be a decision for you as the triers of fact. [Emphasis added.] [at para. 64]

At the conclusion of the trial defence sought a ruling that Dr. Young’s evidence with respect to consent was inadmissible and that the jury should be instructed accordingly. The trial judge dismissed the application and held that any potential prejudice could be alleviated by an instruction to the jury. The instruction provided was as follows:

In Dr. Young’s opinion, this injury [reaction on the skin just above the anal opening] was consistent with the history of forced anal penetration that had been provided to her. The fact that [K.H.] was crying out without even — with even swabbing suggested significant discomfort. Her opinion was that the level of injuries and discomfort on examination suggested that the amount of force was very painful so that a person would be unlikely to engage in such an act willingly. However, in cross-examination, she agreed with the suggestions that consensual anal intercourse can cause bleeding and that it is hard to imagine engaging in anal intercourse with an engorged penis and not thereby applying force to the anus. Most importantly, she agreed that her findings were equally consistent with consensual and non-consensual anal intercourse and that we are entirely dependent on [K.H.’s] credibility to determine what actually occurred. [Emphasis added.]

And further that:

In addition, because Dr. Young was questioned by both counsel about whether the injury she noted was consistent with non-consensual or consensual sexual intercourse, I must emphasize that the question of whether the Crown has proven beyond a reasonable doubt that the anal intercourse on February 13th was without [K.H.’s] consent is for you to decide on the basis of all the evidence. It is not something that is determined by Dr. Young’s opinion. She is only qualified to give medical opinions about the physical injury that she found, its effect in terms of producing pain, and the manner in which the injury could be produced. She is not qualified to give any opinion about the ultimate question about whether there was or was not consent to the sexual act involved here. Most importantly, please remember that she agreed that the anal injury is consistent with either situation and that we are dependent on [K.H.’s] credibility to determine what actually occurred. [Emphasis added.] [at paras. 66-67]

The Court of Appeal rejected JSS’ argument that the trial judge failed to “be vigilant in monitoring and in enforcing the proper scope of expert evidence.” [at para. 69]. The court instead found that:

based on Dr. Young’s evidence in cross-examination, the mid-trial and final instructions, and the addresses of counsel, the jury would have understood clearly that they could not use Dr. Young’s evidence about consent which was the very question they alone could decide. [at para. 70]

5:130 Nutrition

R. v. Krajnc, 2017 CarswellOnt 6548 (Ont. C.J.)

Defence Expert: Dr. David Jenkins (nutritional scientist)

On June 22nd, 2015 a tractor trailer carrying 190 pigs stopped at a traffic light about 100m from its final destination — a slaughterhouse. Animal rights activists had gathered in anticipation of the truck’s arrival, including Ms. Krajnc. Some of the activists were talking to the pigs, some were petting them and some were giving them drinking water. The driver got out of the truck and approached Ms. Krajnc. He asked what she was doing. She replied that she was giving the pigs water as they were thirsty. The driver told her to stop and called her a rude name. Ms. Krajnc continued to give the pigs water until the truck drove off to the slaughterhouse. The exchange between Ms. Krajnc and the driver was recorded by other protesters. The driver reported the incident to his employer. The employer called police. The police charged Ms. Krajnc.

In her defence, Ms. Krajnc called four experts, one of these experts was a nutritional scientist.

Dr. Jenkins was qualified as an expert on human nutrition and provided his opinion on “the nutritional health impact on human from the consumption of various foods, and on the scientific relationship between chronic diseases, specifically heart disease and cancer and the consumption of various foods.” [at para. 108]

Dr. Jenkins testified that “people should eat less meat and eat more fruit, vegetables, whole grain cereals, legumes, nuts and seeds. He said that eating meat, and processed meat in particular, contributes to cancer, heart disease and diabetes [at para. 109]

Dr. Jenkins evidence appears to have been accepted by the court and used as a sounding board to contrast Ms. Krajnc’s assertions in her own defence. In fact the court juxtaposed a number of assertions by Ms. Krajnc with the evidence of Dr. Jenkins.

•      Ms. Krajnc said meat should be eliminated from the human diet/ Dr. Jenkins said it should be reduced. [at para. 112]

•      Ms. Krajnc compared eating meat to smoking/ Dr. Jenkins said it’s not the same as smoking [at para. 113]

•      Ms. Krajnc said that feeding bacon to a child is a form of child abuse/ Dr. Jenkins said “Well, that’s a nice one. I’ve not heard of that but I would leave all of that to all of you to contemplate”. [at para. 114]

Ms. Krajnc was acquitted. [at para. 143]

5:140 Medical Sciences

R. v. Ball , 2019 CarswellOnt 8774 (Ont. S.C.J.)

Crown Expert: Dr. Ethan Kreiswirth

Ball is charged with the first degree murder of Howlett, his intimate partner. Their relationship was rocky. Howlett’s body was discovered in a black duffle back about a week after she went missing. The first trial in this matter resulted in a mistrial after the jury was unable to reach a unanimous verdict. Dr. Kreiswirth was not preferred as a witness at the first trial.

The Crown sought to qualify Dr. Kreiswirth as an expert able to give opinion evidence about “the visible or structural bodily injuries, or the absence of same, that may result from the application of particular chokeholds.” [at para. 14]

The Court summarized Dr. Kreiswirth’s training and experience as follows:

Kreiswirth has an undergraduate degree in physical education and a PhD in athletic training. He is currently an assistant professor and graduate program director in the health science department at Rocky Mountain University. He was formerly an assistant professor in the kinesiology department at Concordia University. He gives lectures on sports medicine topics and he is an athletic trainer.

More significantly, Kreiswirth has a black belt in Brazilian Jiu Jitsu (“BJJ”). He has been actively involved as a competitor and a medical director in BJJ for approximately 25 years. Currently, he is the medical director for the International Brazilian Jiu Jitsu Federation.

In summary, Kreiswirth’s proposed expert evidence can be divided into the following seven categories:

a.      The history, growth, and popularity of BJJ.

b.      The public knowledge of BJJ techniques through Ultimate Fighting Championship (“UFC”) events, internet websites, and YouTube.

c.      The mechanics of BJJ techniques, including blood chokeholds.

d.      The methods of applying BJJ chokeholds.

e.      The time required for a person to lose consciousness as a result of the application of BJJ chokeholds.

f.       The likelihood of visible or structural bodily injuries resulting from the application of BJJ chokeholds.

g.      The terminology used to describe BJJ techniques. [at paras. 2-4]

In order to determine the admissibility of the proposed evidence the Court divided it into seven categories.

Categories 1 to 4 included evidence of the popularity of BJJ, pulic knowledge and chokehold techniques.

The Court found that these categories of evidence were not admissible. In particular, the court held that the probative value of the evidence was low and the risk of prejudice high. Moreover, the Court concluded that this body of evidence could risk unduly delaying the trial. [at paras. 43-46]

Categories 5 and 6 included evidence of the time it would take to render someone unconscious and the absence of visible injury.

The Court concluded that this evidence was not admissible as it was premised on the admissibility of the first four categories of evidence which had already been excluded. Alternatively, the Court found that Dr. Kreiswirth lacked the necessary qualifications to provide this evidence as he is not a medical practitioner. [at paras. 47-48]

The last category of evidence included terminology related to terms like choke hold.

The Court concluded that this evidence was not admissible as it was not the expert’s opinion of what the term means that is significant in this case but rather what those involved in the matter as witnesses understood or meant by that phrase. [at para. 55]

The Court held that none of the proposed evidence was admissible. [at para. 57]

R v. MacDougall, 2018 CarswellOnt 15257 (Ont. S.C.J.)

Defence Expert: Dr. Silverman

MacDougall was convicted of impaired driving, driving with a blood alcohol concentration over 80mg of alcohol per 100 milliliters of blood and failing to stop for police. MacDougall suffers from Type 1 Diabetes. At trial, she claimed that she drove out of necessity. Essentially MacDougall argued that that as a diabetic she was experiencing hypoglycemia and needed to drive urgently to her nearby home to get food in order to mitigate her symptoms.

Just prior to her driving she had been warned by a police officer that she was showing signs of impairment and that she should not drive. She heeded that advice only briefly before getting in to her vehicle and driving. Police pursued with lights and sirens and MacDougall did not stop. She was arrested in her driveway.

At trial Dr. Silverman, an endocrinologist was qualified as an expert. Dr. Silverman met with MacDougall several days after her arrest. Dr. Silverman’s opinion was as follows:

On the day in question, she recognized the symptoms of hypoglycemia (blurred vision, palpitations, and sweatiness) and decided to drive home to treat it. Hypoglycemia may cause symptoms similar to those of intoxication. The American Diabetes Association identifies symptoms of hypoglycemia as shakiness, dizziness, clumsy or jerky movements, difficulty paying attention, and confusion. The latter clearly was her case, as is seen by the fact that rather than ask the police officers for assistance she opted to get in her car. She was not intentionally driving away from them or trying to escape, her concern was getting home to get a source of glucose. While this was not a wise decision, it is very much in keeping with hypoglycemia: she felt absolutely compelled to seek the glucose her body required. This is supported by the observations made by police over the course of this investigation. [at para. 3]

The trial judge rejected MacDougall’s evidence and convicted her of the offences (the impaired driving count was stayed in accordance with Kienapple.)

MacDougall appealed. The summary conviction appeal judge ordered a new trial. The court held:

in summary I am of the opinion that the trial judge’s rejection of the expert opinion evidence of the endocrinologist, Dr. Silverman, because he relied on the appellant’s self report and failed to engage in testing was unreasonable. This led to the unwarranted conclusion that there was no reasonable doubt as to the appellant’s impaired driving being the result of a serious medical condition causing her to believe she had to urgently drive to her home. The appellant did not receive a full and fair consideration of the defence of necessity or the issue of the cause of her impairment, due to the unwarranted rejection of the expert evidence. This constitutes a palpable and overriding error. [at para. 22]