Christopher Tsiligiris

The applicant, Martin Ngigi, brought an amended O'Connor application seeking extensive medical and school records of the complainant, J.G., a nine-year-old boy with muscular dystrophy, who alleged assault.

The application also involved a Mohan voir dire to admit expert evidence from Dr. Ken Berger regarding neuromuscular conditions and cognitive function to support the records request.

The court dismissed the Mohan voir dire, finding Dr. Berger's expert evidence was not relevant, necessary, or impartial.

Consequently, the court also dismissed the O'Connor application for further records, concluding that the requested information was not likely relevant to the issues at trial or necessary for the applicant's full answer and defence, and that the complainant's significant privacy interests outweighed any potential probative value.

The defendant, Martin Ngigi, facing charges of Assault and Assault Bodily Harm, brought an application to qualify Dr. Ken Berger as an expert witness in neuromuscular conditions and cognitive function.

The Crown and counsel for the complainant conceded Dr. Berger's expertise in emergency medicine and trauma but disputed his qualifications in the other two areas.

Applying the Mohan test and the Pham factors for expert qualification, the court found Dr. Berger qualified to opine on neuromuscular conditions, noting his specialized knowledge beyond the trier of fact, despite some concerns about the breadth of his experience.

However, the court determined that Dr. Berger lacked sufficient specialized knowledge and experience to be qualified as an expert in cognitive function, citing vague and anecdotal evidence in that area.

The defendant, Martin Ngigi, charged with assault, brought an O'Connor application for third-party records, including medical and school records related to the child complainant's muscular dystrophy and cognitive impairment.

As part of this application, the defendant sought to qualify an expert, Dr. Berger.

During the Mohan voir dire to determine Dr. Berger's qualifications, counsel for the complainant sought to cross-examine the proposed expert.

The defendant opposed this, arguing that complainant's counsel lacked standing and that the court should be guided by R. v. J.J. The Crown supported the complainant's counsel's position.

The court ruled that complainant's counsel is permitted to cross-examine the proposed expert in both the Mohan voir dire and the O'Connor application, finding no jurisprudential, legislative, or policy bar to such cross-examination in common law O'Connor proceedings, distinguishing them from statutory regimes for sexual assault cases.