DATE:20011218

DOCKET: C24898

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and SIMMONS JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Russell Silverstein For the appellant

Respondent

• and -

JEFFREY SMITH

Kenneth L. Campbell and Riun Shandler for the respondent

Appellant

Heard: March 27 and 28, 2001

On appeal from the judgment of Justice David McCombs with a jury dated April 18, 1996.

SIMMONS J.A.:

1. [1] Katie Scott and her twin sister Kelly were born almost three months prematurely on November 7, 1993.[^1] On March 22, 1994 Katie died of extensive intracranial bleeding leading to hypoxic-ischemic encephalopathy[^2]. Her teenaged father, Jeffrey Smith, was charged with second-degree murder approximately four months after Katie’s death. The case was transferred to adult court and tried before McCombs J. sitting with a jury. On April 18, 1996, the jury returned a verdict of not guilty of second-degree murder but guilty of manslaughter.

2. [2] The Crown alleged that Katie died as a result of non-accidental violent shaking, which must have occurred within one to two hours of her sudden loss of consciousness on March 21, 1994. Only Mr. Smith could have assaulted Katie during this time frame.

3. [3] Ten medical witnesses testified at trial for the Crown. Six doctors from the Hospital for Sick Children were qualified to give opinion evidence relating to the cause of death. All six opined that severe shaking caused Katie’s death.

4. [4] Mr. Smith testified at trial and denied either assaulting his daughter, or shaking her inadvertently in a panicked attempt to revive her.

5. [5] Dr. Derek deSa, a paediatric pathologist, testified as an expert witness for the defence. He said several findings associated with Katie’s death were inconsistent with the theory that severe shaking caused Katie’s death. He testified that he had consulted with Dr. Helen Whitwell, a senior British forensic neuropathologist, and that she concurred with his opinion. He opined that Katie died as a result of natural causes arising from the significant medical problems she suffered, including respiratory problems arising from dysmaturity of her lungs and frequent bouts of apnoea[^3].

6. [6] On appeal, Mr. Smith seeks to introduce fresh evidence in the form of an affidavit from Dr. Whitwell. In addition, he raises the following grounds of appeal:

7. ▪ the trial judge erred in refusing a defence request for an adjournment to accommodate Dr. Whitwell’s testimony at trial;

8. ▪ the trial judge erred in allowing Dr. Mian, a Crown expert, to testify in a way that amounted to saying Mr. Smith is the type of person who would commit the alleged offence and as to the statistical frequency of non-accidental versus accidental head injury in children;

9. ▪ the trial judge erred in his instructions to the jury on reasonable doubt;

10. ▪ the trial judge erred in failing to instruct the jury that even if not accepted, the evidence of Mr. Smith could raise a reasonable doubt; and

11. ▪ the trial judge erred in his instruction to the jury concerning how to deal with the conflicting medical evidence.

12. [7] I would dismiss the appeal.

13. Background

14. [8] Katie weighed only 920 grams at birth. She was immediately intubated and ventilated as a result of mild to moderate respiratory distress syndrome, a lung disease common in premature infants. Ventilation continued until December 24, 1993. Katie remained in hospital for over two and one-half months following her birth, until January 26, 1994. During that time she suffered from frequent episodes of apnoea. She was also diagnosed as suffering from stage one (mild) retinopathy of prematurity[^4] and fluctuations in her haemoglobin levels.

15. [9] Upon her initial discharge from hospital, doctors felt she was no longer suffering from respiratory distress syndrome and that her retinopathy had resolved. Ultrasounds performed on Katie’s head on November 10, 16, and December 3, 1993 revealed no intraventricular bleeding. X-rays taken on November 15, and 30, and on December 7, 9, and 31, 1993 revealed no rib fractures, however X-rays are not always successful in detecting rib fractures in premature infants. An eye examination on January 4, 1994 indicated Katie’s eyes were essentially normal.

16. [10] Katie was readmitted February 11, 1994. Her parents were concerned about three spells of apnoea, all of which were associated with her turning blue. They reported having to perform artificial respiration during one of the spells. Katie was discharged on February 14, 1994. No apnoeic spells were noted during this admission. Chest x-rays and an e.c.g. were normal. Tests for respiratory syncytial virus[^5] were negative.

17. [11] Katie attended the hospital twice on February 18, 1994. Mr. Smith told hospital staff she was lethargic and coughing and having trouble breathing on the first visit. She was released for further observation at home but admitted later the same day after an episode of apnoea. It was believed that her apnoea was the result of a respiratory syncytial virus. Katie suffered several more apnoeic spells prior to her release from hospital on March 4, 1994. Nursing staff stimulated her breathing by a variety of methods ranging from a gentle shake, to vigorous rubbing, to bagging. She was sent home with an apnoea monitor.

18. [12] Katie was readmitted to hospital on March 9, 1994. Her parents reported vomiting and diarrhoea during the preceding four days along with increasing irritability. Katie vomited once (March 10) during this admission and tested positive for roto virus[^6]. She had no fever and no apnoeic spells. She was discharged on March 14, 1994, her symptoms having resolved.

19. [13] On March 21, 1994 at about 11:30 a.m. Katie’s mother went shopping, leaving Mr. Smith at home to care for the twins. An uncle dropped over briefly at some point and saw Katie awake and apparently alert. Sometime after 12:30 p.m. a nurse from the Victorian Order of Nurses made a routine visit. She detected a slight wheeze in Katie’s chest while using a stethoscope to listen to her heart and respirations. The nurse observed no response when she checked Katie’s reflexes and no reaction when she checked Katie’s pupil’s response to light. After checking Kelly she told Mr. Smith she would like to take Katie to the emergency department of the hospital.

20. [14] The nurse testified that Katie’s breathing appeared to deteriorate. Katie let out an awful sigh and had a slight seizure on the left side. The nurse instructed Mr. Smith to call 911. She began performing mouth-to-mouth resuscitation and put her fingers on Katie’s chest to enable her to perform C.P.R. if necessary. She denied performing C.P.R., both to paramedics at the scene and at trial. However both Mr. Smith and Katie’s uncle, whom Mr. Smith had called over from next door, testified that she did.

21. [15] Katie arrived at Scarborough General Hospital with paramedics at 2:09 p.m. on March 21, 1994. Upon arrival, Katie was receiving 100% oxygen by bag. Her pupils were midpoint and mildly reactive to light. There was no response to painful stimuli. Katie emitted a brief involuntary cry when her endotracheal tube became dislodged. The tube was removed. Within ten minutes her breathing became more laboured, so she was reintubated. Katie’s pupils were fixed and dilated within three to four minutes of reintubation. It was clear she had suffered a serious brain injury. No unusual bruises or other overt signs of trauma were noted.

22. [16] Katie was transferred to Sick Children’s Hospital where she arrived at approximately 8:00 p.m. on March 21, 1994. She was noted to be pale, flaccid, unresponsive, intubated, and ventilated. Upon examination, she appeared clean, well looked-after, and well nourished. She was declared dead on March 22, 1994 at 7:10 p.m.

23. [17] The examining pathologist issued the autopsy report on July 12, 1994. He opined that the cause of death was “non-accidental, intra-cranial trauma, with extensive, acute subdural, subarachnoid and intraventricular[^7] haemorrhage, causing acute hypoxic-ischemic encephalopathy”. He also commented that:

24. The autopsy findings are characteristic of severe shaking injury to the head of this deceased infant with extensive acute intraretinal haemorrhage and subdural and subarachnoid haemorrhage around the optic nerves. In addition to the acute intracranial injuries causing death, there is post mortem evidence of older traumatic injuries including subdural haemorrhage with hemosiderin deposition[^8], healing fractures of the posterior right 8^th and 9^th ribs and a healing haematoma in the posterior portion of the liver overlying the spinal column.

25. [18] On March 23, 1994, immediately following the autopsy, the examining pathologist told another doctor that he could not establish the cause of death. He said that, while there was evidence of trauma, there was no objective evidence of trauma not attributable to resuscitation. Later the same day he summarized the situation as: “Preemie with earlier subdural haemorrhage who had a recent subdural bleed with a crash (sudden deterioration) plus resuscitation attempts which made it worse, or she had a crash due to other pathology, for example, inappropriate control of bleeding plus resuscitation plus further subdural haemorrhage”.

26. [19] At trial the pathologist expressed regret that he had not been more definite in reporting his opinion on March 23, 1994 and said he only expressed doubts about the cause of the injuries for fear of being mistaken.

27. [20] Fifteen abnormal findings were noted in the autopsy report. In addition to the matters noted above, these findings included: moderate cerebral edema[^9], pituitary necrosis[^10], acute tracheobronchitis, pulmonary dysmaturity[^11], respiratory syncytial virus, myocardial necrosis[^12], and a congenitally small superior sagittal sinus[^13].

28. [21] The autopsy report also revealed that Katie’s brain weighed 700 grams, including subdural blood, at the time of the autopsy. After removal of most of the subdural blood her brain weighed 580 grams. Normal brain weight for Katie’s adjusted age of six weeks would be 430 grams. The examining pathologist ultimately testified that as a rule of thumb, normal blood volume of a baby is about 7% of body weight. In Katie’s case, given her body weight at death of 3660 grams, her expected blood volume was approximately 256 millilitres (or grams). Accordingly, close to one half of Katie’s blood volume was in the subdural space within her skull at the time of her death. The pathologist testified, “that is extensive”.

29. [22] The trial of this matter commenced on January 22, 1996. Expert witnesses called by the Crown concerning the cause of Katie’s death included a pathologist, a paediatric neuropathologist, a paediatric neuroradiologist, a paediatrician, a paediatric neurosurgeon, and a paediatric ophthalmic surgeon.

30. [23] The Crown experts were in general agreement that Katie suffered extensive bleeding in her skull as a result of non-accidental trauma on March 21, 1994. Several asserted that the variety of symptoms found in this case could only reasonably be explained by severe shaking, either alone, or in combination with impact on a soft or padded surface.

31. [24] The Crown experts also testified that Katie’s various medical problems would not have caused her symptoms on March 21, 1994. They specifically ruled out a variety of possible causes, including: a bleeding disorder; apnoea; complications arising from prematurity, including old bleeding sites in the brain; complications arising from a congenital venous malformation[^14]; and complications arising from C.P.R.

32. [25] Dr. Alex Levin, a staff paediatric ophthalmic surgeon at the Hospital for Sick Children had examined Katie with an indirect ophthalmoscope at approximately 5:00 p.m. on March 22, 1994. He reported finding dot haemorrhages, swelling of the macula[^15], and possibly some bruising of the retina in the right eye, and severe, multiple dot and blot haemorrhages in the retina and some swelling in the macula of the left eye. He said the haemorrhages were not only in the posterior pole, but also throughout the retina. Although there are hundreds of causes of retinal haemorrhaging, he opined that, in light of their severity and nature, only shaking could account for the haemorrhages he saw.

33. [26] Based on findings of older rib fractures, a subdural haematoma, and a liver injury, the Crown experts were generally agreed that Katie had suffered a milder trauma two to three weeks before she died. The Crown also led evidence of findings concerning Kelly that it alleged were indicative of trauma.

34. The Adjournment Application

35. [27] The non-expert defence witnesses completed their testimony on March 28, 1996.

36. [28] The jury was excused until April 2, 1996, at least in part to accommodate Dr. deSa’s schedule. Another reason related to the proposed testimony of Dr. Helen Whitwell.

37. [29] Early in the trial defence counsel had informed the court that he proposed to call Dr. Whitwell as a defence witness and that she would be available to testify on or around March 25, 1996. On March 18, 1996 defence counsel received a letter from Dr. Whitwell indicating she had discovered her “Defence Union” did not cover her in Canada “against potential litigation”. She indicated she was unwilling to release her report or to attend and testify until satisfactory coverage could be arranged.

38. [30] Notwithstanding efforts by defence counsel to resolve the problem, it remained outstanding as of March 27, 1996. Dr. Whitwell informed defence counsel on that date that due to other court commitments, she would be unable to attend and testify prior to May 20, 1996.

39. [31] On April 1, 1996 defence counsel informed the Court that he had provided the Crown with a supplementary report from Dr. deSa on March 29, 1996, based on a verbal consultation between Dr. deSa and Dr. Whitwell. The purpose of the consultation and the supplementary report was to determine the extent to which Dr. deSa could, in effect, incorporate Dr. Whitwell’s findings into his testimony and to facilitate that testimony.

40. [32] Defence counsel nevertheless requested that the trial be adjourned until May 20, 1996 to accommodate Dr. Whitwell’s testimony. Based on a personal indemnity provided by defence counsel, Dr. Whitwell had delivered a consultation note setting out her findings subsequent to her verbal consultation with Dr. deSa. Dr. deSa had discussed most of what was in the consultation note with Dr. Whitwell however, he was only prepared to report on the aspects of Dr. Whitwell’s findings that he had addressed himself and with which he felt comfortable.

41. [33] The major issues addressed by Dr. Whitwell that were not incorporated into Dr. deSa’s supplementary report related to the retinal haemorrhages and the neuroradiological findings arising from the CT scans.

42. [34] On the first issue, Dr. Whitwell said the changes noted in the eyes can also be seen in association with brain swelling, intracranial haemorrhage, and bleeding abnormalities, as well as in association with shaking. On the second issue, Dr. Whitwell said the neuroradiologist she consulted found the degree of intraventricular haemorrhage extremely unusual for a shaking injury. Dr. Whitwell said: “[w]hile I can see no firm evidence pathologically of definite vascular abnormality within the brain this should be considered.” Dr. Whitwell’s comments were based, at least in part, on consultations with an ophthalmologist and a neuroradiologist.

43. [35] While Dr. deSa had made comments similar to those of Dr. Whitwell in relation to the potential for retinal haemorrhages to occur in association with cranial bleeding, Dr. deSa had not consulted with an ophthalmologist and would be unable to say that he had. The ophthalmologist Dr. Whitwell consulted had reviewed the histological slides relating to the retinal haemorrhages and had discussed them with her.

44. [36] It was conceded that there was already evidence before the jury from Crown witnesses that it is unusual in a shaken baby to have blood throughout the entire brain as was found in this case. Defence counsel contended however that the Crown witnesses had implied that the explanation was that there was more violent shaking. He also asserted that the neuroradiologist had talked about Katie’s brain appearing abnormal and that Dr. Whitwell would comment on that in her evidence.

45. [37] Although Dr. deSa had not consulted with a neuroradiologist nor reviewed the CT scans, his original report included references to “chronic lesions” in the brain and a chronic pulmonary condition. He said, “…[they] could, taken together, explain [Katie’s] symptomatology. … Force would not be necessary”.

46. [38] Defence counsel submitted that Dr. Whitwell’s testimony was essential for purposes of making full answer and defence. Dr. Whitwell was not only a neuropathologist, she was a consultant forensic neuropathologist to the Home Office (England) who had dealt with 50 – 55 cases of alleged non-accidental head trauma since 1991, either for the prosecution, the defence or on referral. Although Dr. deSa is a highly qualified paediatric pathologist with neuropathological experience, he is not a neuropathologist. Moreover, because of the rarity of fatal shaking cases, he had personally been involved in only three or four autopsies involving shaking situations.

47. [39] The trial judge denied the defence request for an adjournment. His ruling included the following significant comments:

48. The defence has had Dr. Derek deSa on retainer as a medical expert in this case since prior to the commencement of the preliminary inquiry. …

49. The CV shows that Dr. deSa has been a medical doctor for more than 30 years. He is a paediatric pathologist. In his graduating year in 1962, he was one of two recipients of a Rhodes scholarship in the entire country of India. He is a full professor at McMaster University, has held various positions in pathology and paediatric pathology throughout his medical career.

50. He has participated in the authorship of 85 publications … in peer-reviewed medical journals, many of which reveal expertise in areas touched upon in this trial. He has given lectures all over the world to medical colleagues … and … it’s clear to me that Dr. deSa has had the benefit of the autopsy report, various medical reports, and indeed the slides themselves from the autopsy.

51. In January of this year, about two weeks before the trial was to begin, the defence consulted [Dr. Whitwell] of England. … Dr. Whitwell is a well-known and well-respected pathologist and I have no reason to doubt that.

52. The comments I’m making are not in any sense a criticism of the defence for not having taken steps to retain Dr. Whitwell until early January, two weeks before the trial. I’m sure there are reasons for that. Although the fact that Dr. Whitwell was not retained until January is I think relevant, what I am about to say does not involve a criticism [of defence counsel] whose diligence and commitment to this case has been quite evident from the very beginning.

53. …

54. It was not until March the 18^th, one week before her scheduled testimony that she informed [defence counsel] that, … she now had a concern about her potential for civil liability were she to testify in Canada.

55. …

56. During the trial, it became increasingly apparent to me that this would be an unusual case because of the complexity of the medical evidence which the 12 jurors were being asked to digest. …

57. Moreover, the examinations and cross-examinations have been extremely detailed and … as the trial unfolded it became apparent to me that some of these subtleties and details were exceedingly important.

58. …

59. … As far as I’m aware such an adjournment, particularly in a case like this, would be unprecedented and for very good reason. It would mean that the jurors would be expected to keep in their minds this complicated medical evidence for a considerable period of time. It must be said that there would be a grave risk that their recollection of much of the evidence both for the Crown and for the defence would be lost to their memories.

60. Furthermore, I’m satisfied, … that Dr. deSa is in a position to provide very extensive expert opinion evidence touching on the very points on which the defence relies in support of its position.

61. Dr. deSa … will be in a position to provide an opinion based not only on his own observations of the material which he saw but also on consultation with other medical experts, including the elusive Dr. Whitwell.

62. The right of Jeffrey Smith to make full answer and defence to this charge is a very well established right in the courts of our country. It’s the most important right that an accused person has in a courtroom. It’s protected by our Charter of Rights and Freedoms. It’s essential that all persons facing criminal charges be afforded that right and it’s the duty of this Court to guard against any encroachment on that right. I take that responsibility seriously and I don’t make this decision lightly.

63. I have balanced all of the competing considerations. … I have examined the report of Dr. deSa and I am satisfied Mr. Smith will not be deprived or denied or indeed even hindered in making full answer and defence if this adjournment request is denied.

64. [40] Defence counsel noted that he had informed the Crown that one of his alternatives was to apply for a mistrial but said he did not feel it was appropriate to bring that application in conjunction with the application for an adjournment. He said he was not sure of the extent to which there was any point in bringing the application in light of the trial judge’s findings on the adjournment application. However, defence counsel expressly reserved the right to apply for a mistrial and said:

65. …my feeling is that if the application is to be made it’s more appropriate to be made after the evidence of Dr. deSa because the picture will be complete at that point and it will be easier to assess the presence or absence of prejudice or the presence or absence of any [hindrance] on Mr. Smith’s ability to make full answer and defence. So I simply at this point will indicate to the Court that I’m reserving that right to bring that application if necessary after the evidence of Dr. deSa.

66. Issues and Analysis

67. i) Did the Trial Judge Err in Refusing to Grant an Adjournment?

68. [41] The appellant submits that in deciding not to grant the adjournment, the trial judge took account of three factors expressly and two factors implicitly and that none of such factors, either alone or in combination, justified the refusal of the adjournment. The appellant further submits that several of the findings implicit in the ruling of the trial judge are unreasonable and not supported by the evidence. In the result the appellant says the trial judge failed to exercise his discretion judicially.

69. [42] The three factors the appellant says the trial judge considered expressly are as follows:

70. i) Dr. Whitwell was not retained until early January;

71. ii) in light of the proposed evidence of Dr. deSa, the appellant’s ability to make full answer and defence would not be hindered by the absence of Dr. Whitwell’s evidence; and

72. iii) there was a grave risk that, in light of the complicated medical evidence already heard by the jury, their recollection of the evidence would be lost if the six week adjournment were granted.

73. [43] The two factors the Appellant says the trial judge considered implicitly, based on an examination of the colloquy between the trial judge and counsel preceding the trial judge’s ruling, are as follows:

74. iv) the appellant’s counsel had already done a very thorough job of undermining the Crown’s case, and the evidence of Dr. Whitwell was therefore, unnecessary to the appellant; and

75. v) Dr. Whitwell’s expressed reason for not being available as originally scheduled was not bona fide.

76. [44] Appellant’s counsel submits that the first factor is spurious in that there was nothing to indicate the same problem would not have arisen had Dr. Whitwell been retained earlier. Further, he maintains that the trial judge erred in allowing his personal views concerning the success of defence counsel’s conduct of the case and concerning the necessity of Dr. Whitwell’s evidence to improperly affect his judgment in relation to the second and fourth factors. He also says that the trial judge erred in his assessment of the impact of the length of the proposed adjournment, particularly when weighed against Mr. Smith’s right to make full answer and defence in relation to the third factor. Finally, he says that the trial judge’s scepticism regarding Dr. Whitwell’s bona fides was not supported by the evidence or submissions before the court in relation to the fifth factor.

77. [45] Concerning the fourth and fifth factors identified by appellant’s counsel, it is generally neither appropriate nor possible to draw inferences concerning a trial judge’s reasons for a ruling based on colloquy with counsel. Trial judges routinely probe submissions to test the viability of various avenues of decision. Particularly where comprehensive reasons are given there is no basis for going behind a trial judge’s reasons.

78. [46] In this case the trial judge not only delivered detailed reasons, he also noted during the colloquy that he had indicated some scepticism about Dr. Whitwell’s non-availability. He said he was not going “to let that interfere with the decision [he had] to make because [he was] not in a position to say that [Dr. Whitwell] was not being candid” in relation to the fifth factor.

79. [47] I see no reason to doubt the trial judge’s statement, nor has one been provided. However, even assuming the trial judge in this instance took the matters posited by Mr. Smith into account, I would not interfere with his decision not to grant an adjournment.

80. [48] The standard of appellate review of a ruling on an adjournment request is set out in R. v. Olbey (1977), 1977 CanLII 2060 (ON CA), 38 C.C.C. (2d) 390 (Ont. C.A.) at 398, aff’d on other grounds, 1979 CanLII 61 (SCC), [1980] 1 S.C.R. 1008 as follows:

81. The granting of an adjournment is within the discretion of the trial Judge, and an appellate Court will not interfere with the exercise of his discretion unless he has failed to exercise it in a judicial way, or unless the refusal to grant an adjournment has resulted in a miscarriage of justice.

82. [49] In my view there is nothing to indicate the trial judge failed to exercise his discretion judicially or that his decision not to grant an adjournment resulted in a miscarriage of justice. His decision was fully justified based on the third factor identified by appellant’s counsel as being among the matters he considered expressly, namely, the impact of the length of the requested adjournment on the ability of the jury to recall the detailed medical evidence.

83. [50] Examined as a whole the trial judge’s reasons for refusing the adjournment demonstrate that he was alive to various issues impacting on whether or not an adjournment should be granted but that foremost in his mind was his conclusion that there was a very real risk that complicated medical evidence for both the Crown and defence would be “lost to [the] memories” of the jurors.

84. [51] The appellant does not contest the relevance of the length of the adjournment requested to the issue of whether an adjournment should have been granted. Rather, he says that the trial judge erred in concluding the length of time was unreasonable and that his conclusion was driven by his underestimation of the damage that would be caused to the defence by the absence of Dr. Whitwell.

85. [52] I disagree. Nothing in the trial judge’s reasons indicates he was swayed in his assessment of the complexity of the medical evidence and the jury’s ability to recall it by what would amount to an extraneous consideration to that issue. The trial judge was in the best position to assess the impact of a lengthy hiatus on the jury’s ability to recall the evidence. In light of his conclusion, the adjournment requested was not a real option.

86. [53] Defence counsel at trial reserved his right to apply for a mistrial until after the evidence of Dr. deSa was completed, when the prejudicial impact, if any, of the absence of Dr. Whitwell could be fully assessed. Ultimately, counsel chose not to apply for a mistrial. Though counsel had expressed reservations as to the utility of such an application in the face of the trial judge’s clear findings on the issue of full answer and defence, the completion of Dr. deSa’s evidence provided the opportunity to revisit what were, of necessity, anticipatory findings.

87. ii) The Fresh Evidence Application

88. [54] The proposed fresh evidence consists of a three-paragraph affidavit from Dr. Whitwell sworn June 23, 1999 to which the consultation note she provided in March 1996 and her then current curriculum vitae are appended as exhibits. The transcript of a cross-examination of Dr. Whitwell conducted in August 2000 was also filed.

89. a) The Test for Admission of Fresh Evidence

90. [55] The authority for admission of fresh evidence on appeal is set out in s. 683(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46, as amended, which provides that “[f]or the purposes of an appeal … the court of appeal may, where it considers it in the interests of justice, … receive the evidence of any … witness”.

91. [56] The well-established criteria for admission of fresh evidence on appeal are set out in R. v. Palmer (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.) at p. 205 as follows:

92. i) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

93. ii) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

94. iii) the evidence must be credible in the sense that it is reasonably capable of belief; and

95. iv) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

96. [57] The respondent contests the admissibility of the proposed evidence on the basis of criteria i) and iv).

97. [58] On the issue of due diligence, the respondent asserts that it is likely Dr. Whitwell would have been available for trial had defence counsel simply sought to persuade her that she was in no realistic danger of civil action by coming to Canada to testify. The respondent relies on the fact that Dr. Whitwell agreed, on her cross-examination in August 2000, that she did not really think there was a serious possibility of civil action arising from her testimony, and that looking back, her insurance concerns were really unwarranted.

98. [59] The respondent submits three points on the issue of the sufficiency of the evidence of Dr. Whitwell. First that the evidence of Dr. Whitwell is not “fresh” evidence because it speaks to the same issues that were addressed by the many expert witnesses at trial. It is therefore, simply no more than “additional” expert evidence. Second, in the circumstances of this case, Dr. Whitwell’s evidence cannot properly be characterized even as “additional” expert evidence because the proposed fresh evidence on appeal adds nothing of a substantive nature to the position she was allowed to advance through Dr. deSa. Third, the evidence of Dr. Whitwell contains numerous serious frailties and therefore is of such slight probative value that it could not reasonably “be expected to have likely affected the jury.”

99. [60] The defence decision not to seek a mistrial at the conclusion of Dr. deSa’s evidence raises an additional issue.

100. [61] Given the presenting issues, it is necessary to review the authorities dealing specifically with criteria i) and iv), their interrelationship, and the application of the fourth criterion to proposed fresh evidence in the form of opinion evidence of a type presented at trial.

101. [62] In R. v. McMartin, 1964 CanLII 43 (SCC), [1964] S.C.R. 484 the Supreme Court of Canada admitted psychiatric evidence that had been rejected as fresh evidence by the British Columbia Court of Appeal based on an absence of due diligence, as well as its assessment of the strength of the proposed evidence. The evidence indicated that the accused suffered from a mental disorder, giving rise to “impulsive, unpredictable, and dangerous behaviour”. No psychiatric evidence had been led at the trial. It was admitted as being relevant to whether the accused’s actions in murdering his wife were planned and deliberate. The Supreme Court of Canada held that fresh evidence is not to be admitted as a matter of course. It said the following at pp. 490, 491 and 493:

102. It is clearly not in the interests of justice that this privilege should be extended to an appellant as a matter of course, and although the rules applicable to introducing fresh evidence before the Court of Appeal in a civil case do not apply with the same force to criminal matters, it is nevertheless recognized that special grounds must be shown in order to justify the Court in exercising the power conferred upon it by s. 589 [now s. 683(1)].

103. …

104. In all the circumstances, if the evidence is considered to be of sufficient strength that it might reasonably affect the verdict of the jury, I do not think it should be excluded on the ground that reasonable diligence was not exercised to obtain it at or before the trial.

105. …

106. … the evidence tendered by the appellant on such an application as this is not to be judged and rejected on the ground that it “does not disprove the verdict as found by the jury” or that it fails to discharge the burden of proving that the appellant was incapable of planning and deliberation, or that it does not rebut inferences which appear to have been drawn by the jury. It is enough, in my view, if the proposed evidence is of sufficient strength that it might reasonably affect the verdict of a jury.

107. [63] In R. v. C.(R.) (1989), 1989 CanLII 7204 (ON CA), 47 C.C.C. (3d) 84 (Ont. C.A.) the accused appealed against his conviction for three sexual offences committed against a child. He sought to introduce evidence of a proctologist as fresh evidence on appeal to challenge the trial evidence of a gynaecologist concerning what the gynaecologist viewed as abnormal elasticity in the complainant’s anal passage. Carthy J.A. noted that the decision not to seek evidence to contradict the gynaecologist prior to the conclusion of the trial may have been a tactical decision based on other favourable aspects of that doctor’s testimony. He set out the Palmer criteria and said the following at p. 87:

108. The difficulty in applying the test literally is that in McMartin, supra, it was held that if point 4 is satisfied, lack of due diligence under point 1 should not stand in the way of the introduction of the evidence. This effectively makes point 1 redundant except perhaps as a balancing feature where there is uncertainty as to whether the evidence may be expected to have affected the trial.

109. We would not suggest that lack of due diligence can override accomplishing a just result, but at the same time we would not like to see the requirements of due diligence watered down. The answer to the apparent conundrum may only be found in the totality of circumstances and a balancing of factors respecting the ends of justice. Here that totality indicates that the conduct of counsel cannot weigh in the balance against the potential effect of the proposed evidence.

110. [64] In R. v. M.(P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.) the accused was convicted of various sexual offences relating to a nine year old girl. At trial, a psychologist called by the crown relied on a particular test as being a reliable indicator of sexual abuse, and said its use was supported by the recent literature. The psychologist called by the defence disputed the utility of the test and said she was unaware of any recent articles. The accused applied to introduce the evidence of a third psychologist as fresh evidence on appeal to the effect that the test relied on by the crown psychologist is not an accepted diagnostic model for adult survivors of sexual abuse. Doherty J.A. said the following in dismissing the application to introduce fresh evidence at pp. 410-11:

111. The last three criteria are conditions precedent to the admission of evidence on appeal. Indeed, the second and third form part of the broader qualitative analysis required by the fourth consideration. The first criterion, due diligence, is not a condition precedent to the admissibility of “fresh” evidence in criminal appeals, but is a factor to be considered in deciding whether the interests of justice warrant the admission of the evidence[.]

112. …

113. While the failure to exercise due diligence is not determinative, it cannot be ignored in deciding whether to admit “fresh” evidence. The interest of justice referred to in s. 683 of the Criminal Code encompass not only an accused’s interest in having his or her guilt determined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to that integrity. The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683 (1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of the admission of “fresh” evidence on appeal has been stressed …

114. The due diligence criterion is designed to preserve the integrity of the process and it must be accorded due weight in assessing the admissibility of “fresh” evidence on appeal. The case-law is replete with examples where the failure to exercise due diligence has been emphasized in rejecting applications to adduce “fresh” evidence on appeal …

115. It is, however, not necessary to decide whether the failure to exercise due diligence at trial should preclude the receipt of [the third psychologist’s] evidence. His evidence is not “fresh” evidence in any relevant sense. It is, rather, a third voice which speaks to the exact issues addressed by the evidence of [the other two psychologists]. This is not a case like [others] where the appellant sought to introduce expert evidence on appeal, when no such evidence had been introduced by the defence at trial. Here, the matters to which [the third psychologist] refers were explored by competing expert opinions at trial. If [the third psychologist’s] evidence is to be admitted, I can see no basis for excluding additional expert evidence in any case where one party locates additional expert evidence between the trial and the appeal.

116. Furthermore, [the third psychologist’s] evidence hardly resolves the controversy raised at trial concerning the state of the recent literature. … This further variation, on what I regard as a relatively minor point in the evidence of the two experts, could not have had any effect on the jury’s assessment of the expert evidence placed before them.

117. [65] In R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501 the Supreme Court of Canada overturned a decision of this court to admit fresh evidence on appeal. After the accused had been convicted of sexual assault, but before sentencing, the Crown disclosed to the defence that the complainant alleged she had been assaulted by the accused when she refused to have sex with him two weeks prior to the sexual assault. This court held that the allegation of the earlier assault may have assisted in contradicting the complainant concerning whether it was likely she would have approached the accused on the day in question. Counsel for the accused did not raise the issue prior to sentencing but brought an application to introduce fresh evidence. The Supreme Court of Canada held at pp. 502-3:

118. With respect to the [fresh evidence application], applying the factors in Palmer v. The Queen, [citation omitted] in our opinion the proposed evidence ought not to have been admitted. Specifically, we are of the opinion that the appellant failed to satisfy the criterion of due diligence. While this factor is not applied strictly in criminal cases and is not to be considered in isolation, the strength of the other factors is not such that the failure to satisfy the due diligence requirement in this case is overborne by the other factors. [emphasis in original]

119. [66] In R. v. Warsing (1998), 1998 CanLII 775 (SCC), 130 C.C.C. (3d) 259 (S.C.C.) the accused brought a successful application to the British Columbia Court of Appeal to admit, as fresh evidence, psychiatric evidence capable of raising a defence of not criminally responsible. Major J. speaking for the majority noted that the psychiatric evidence would undoubtedly have been available at trial upon the exercise of due diligence. After reviewing the Court’s decisions in McMartin and McAnespie he said at para. 51:

120. It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.

121. [67] Similar language is repeated in R. v. Lévesque (2000), 2000 SCC 47, 148 C.C.C. (3d) 193 (S.C.C.) at para. 15:

122. In other words, failure to meet the due diligence criterion should not be used to deny admission of fresh evidence on appeal if that evidence is compelling and it is in the interests of justice to admit it.

123. [68] In R. v. Dalton (R.C.) (1998), 1998 CanLII 18056 (NL CA), 163 Nfld. & P.E.I.R. 254 (Nfld. C.A.), leave to appeal to the Supreme Court of Canada refused November 19, 1998, the accused was convicted at trial of murdering his wife. The Crown pathologist testified she died of “homicidal manual strangulation”. The defence pathologist opined that there were no external signs of strangulation and that evidence of injury to the outside of the neck is seen in the vast majority of manual strangulations. He said all of the internal throat injuries could have been caused by resuscitative measures and alluded to the possibility of choking on food. In the end however, he said he probably would have noted the cause of death as being undetermined. The appellant sought to introduce, as fresh evidence on appeal, evidence from two pathologists challenging the evidence of the Crown’s pathologist at trial that his wife died of strangulation. One of the new pathologists was of the view that the deceased had choked on food, while the other felt that accidental death was probable. In allowing the application, Marshall J.A. said the following at paras. 107-11:

124. The last three of Palmer’s principles stipulate absolute criteria for admission of fresh evidence, viz: relevance, credibility and reasonable capacity to affect the result. …

125. The first of Palmer’s principles is not couched in absolute terms and, in effect, reiterates in McMartin that new evidence should not be admitted as a matter of course.

126. …

127. It can be readily observed that [R. v. C.(R.) and R. v. Osiowy (1990), 1989 CanLII 5146 (SK CA), 52 C.C.C. (3d) 500 (Sask. C.A.)] are quite consistent with McMartin in holding that fresh expert evidence is admissible, notwithstanding a lack of due diligence at first instance, where it is of such sufficient weight that, in the words of rule 4 set down in Palmer, “if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result”.

128. Opinion evidence of the type already adduced at trial will not fall in the rubric of new evidence which could reasonably be expected to have affected the verdict, however. This is simply because it has already been heard and its repetition could not be regarded as bearing fresh probative value. It is an instance where the exclusionary aspect of Palmer’s rule 1 could be invoked if the tendered evidence could have been produced with due diligence. In reality, however, the need of finality of process would foreclose its introduction whether or not it could have been adduced at trial if reasonable diligence had been exercised. An example where further opinion was not received on appeal occurred in: R. v. M. (P.S.)…

129. It is important to underscore that the evidence which this case would preclude is that “which speaks to the exact issues addressed by the evidence” already adduced at trial. This would not necessarily entail the exclusion of every concurring fresh opinion. If such opinion raises new considerations of sufficient strength to cast doubt on the soundness of the verdict, the pervading concern of the interests of justice must prevail.

130. [69] In R. v. B.(G.D.) (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 (S.C.C.) the appellant was convicted of sexual assault and indecent assault. He sought to have a tape recording of the complainant, denying misconduct on his part, introduced as fresh evidence on appeal. The tape was available at trial but not used because of a tactical decision of trial counsel. The appellant alleged on appeal that his trial counsel was incompetent, and submitted that that incompetency satisfied the due diligence branch of the Palmer criteria. In rejecting the application Major J. said the following at paras. 19-20:

131. The due diligence criterion exists to ensure finality and order—values essential to the integrity of the criminal process. R. v. M. (P.S.) …

132. However, jurisprudence pre-dating Palmer has repeatedly recognized that due diligence is not an essential requirement of the fresh evidence test, particularly in criminal cases. That criterion must yield where its rigid application might lead to a miscarriage of justice. R. v. McMartin …

133. In R. v. Price, 1993 CanLII 76 (SCC), [1993] 3 S.C.R. 633, see Sopinka J. at p. 634:

134. …we agree with the conclusion of the Court of Appeal that the evidence should be admitted as fresh evidence and the conclusion to direct a new trial. While the exercise of due diligence is one of the significant factors, it is not applied strictly in criminal cases and must be applied in light of the other relevant factors. The amount of weight to be given to this factor depends on the strength of the other factors, in other words, on the totality of the circumstances.

135. In determining whether or not the due diligence required by Palmer has been met, an appellate court should determine the reason why the evidence was not available at the trial. The reason for the evidence not being available at first instance is usually one of fact. In this appeal the evidence was available. The reason it was not used, placed in its most favourable light for the appellant, was the unilateral decision of his counsel that the tape would be more prejudicial than helpful in the trial.

136. c) Summary and Analysis of Principles Applicable to the Admissibility of the Fresh Evidence Tendered in this Case

137. i) Summary of General Principles Governing the Admission of Fresh Evidence

138. [70] The general principles applicable to the admission of fresh evidence are well established. They are as follows:

139. ▪ Section 683 of the Criminal Code permits an appellate court to accept “fresh evidence” where it is in the interests of justice to do so.

140. ▪ The interests of justice include an interest in preventing miscarriages of justice by having guilt determined based on all of the available evidence, and also an interest in the integrity of the criminal process to which finality and order are essential.

141. ▪ The importance of finality to the integrity of the criminal process clearly requires that special grounds be shown before fresh evidence is admitted. Fresh evidence must not be admitted as a matter of course.

142. ▪ The four criteria for determining whether it is in the interest of justice that fresh evidence be admitted are set out in Palmer:

143. i. the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

144. ii. the evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue in the trial;

145. iii. the evidence must be credible in the sense that it is reasonably capable of belief; and

146. iv. it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

147. ▪ Satisfaction of the first Palmer criterion is not a condition precedent to admissibility of fresh evidence, but rather one factor to be considered in determining whether the interests of justice warrant its admission.

148. ▪ The second, third, and fourth Palmer criteria are conditions precedent to admissibility of fresh evidence.

149. ii) Analysis of Specific Principles Governing the Application of the Palmer Criteria To This Case

150. [71] I extract the following specific additional principles of particular relevance to the admissibility of the proposed fresh evidence tendered in this case:

151. ▪ The fourth Palmer criterion sets a standard of possible impact on the verdict only. However, short of probable impact on the verdict, there is no static threshold of sufficiency of evidence that will guarantee satisfaction of the fourth criterion.

152. ▪ The interest of justice in the integrity of the criminal process is protected primarily, but not exclusively, through satisfaction of the first Palmer criterion. The weight of the evidence in meeting the second, third, and fourth Palmer criteria may also serve as a measure of whether the integrity of the criminal process is sufficiently protected to warrant admission of the evidence.

153. ▪ Accordingly, although the second, third and fourth Palmer criteria are conditions precedent to admissibility, satisfying them does not guarantee admission of the evidence in the absence of due diligence, or where the integrity of the criminal process otherwise weighs against admissibility.

154. ▪ What is required is an assessment of “the totality of circumstances and a balancing of factors” to determine whether it is in the interests of justice to admit the fresh evidence.

155. ▪ Absent incompetence, tactical decisions not to present evidence, or not to pursue remedies for obtaining evidence at trial must generally preclude satisfaction of the first Palmer criterion. The interest of justice in finality of the criminal process requires that such decisions weigh significantly against subsequent admission of the same evidence. Nevertheless, where a decision was made not to pursue a remedy for obtaining evidence at trial, “assessment of the totality of circumstances” may involve consideration of both the realistic likelihood of obtaining the evidence at trial and the strength of the proposed evidence.

156. ▪ Where proposed fresh evidence consists of “a concurring expert opinion”, it may be excluded either because of an absence of due diligence or because the interest of justice in finality of criminal proceedings forecloses its admissibility. Ultimately what is required is an assessment of whether “the concurring opinion” raises new considerations with sufficient potential to impact the verdict such that the interests of justice require its admission.

157. c) Application of Principles for Admission of Fresh Evidence to This Case

158. i) Due Diligence

159. [72] I reject the respondent’s submission that there is any basis on the record for faulting the diligence of defence counsel in attempting to persuade Dr. Whitwell to come to Canada to testify.

160. [73] Dr. Whitwell’s concession, many years later, that her position in 1996 was unwarranted, is apparently the product of an enhanced understanding of the position of professional witnesses in Canada. When the issue arose in 1996, it was unexpected, and very close to the anticipated date of Dr. Whitwell’s testimony. Counsel for the accused was hardly in a position to advise Dr. Whitwell concerning her potential exposure to civil liability. He went so far as to provide a personal indemnity to her to ensure her attendance on the proposed adjournment date. There is no reasonable basis for inferring that counsel failed to take all reasonable steps to secure the doctor’s attendance within the timeframe available.

161. [74] Nevertheless, the defence made a tactical decision not to request a mistrial at the conclusion of Dr. deSa’s evidence. In doing so, it elected not to pursue one of the remedies available to it for obtaining Dr. Whitwell’s evidence, and to proceed to adjudication without that evidence. The appellant cannot treat the outcome of any such application as a foregone conclusion when the remedy was not requested. He cannot therefore satisfy the first Palmer criterion of demonstrating due diligence.

162. [75] There is no issue that the proposed evidence satisfies the second and third Palmer criteria. I will accordingly turn now to a review of the fourth criterion.

163. iv) Is the Proposed Fresh Evidence Such that if Believed It Could Reasonably, When Taken With the Other Evidence Adduced at Trial, Be Expected to have Affected the Verdict?

164. [76] The potential “new considerations” arising from Dr. Whitwell’s evidence are: 1) her particular qualifications as an expert in shaken baby cases and as a paediatric neuropathologist, and 2) any specific “added value” arising from her evidence as compared to that of Dr. deSa.

165. [77] Dr. Whitwell’s qualifications speak clearly for themselves. At the time of her cross-examination in August, 2000 she was the head of Forensic Pathology at the University of Sheffield, U.K. and had seen more cases of non-accidental or suspected non-accidental head injury than anyone else in the U.K. She has over twenty years experience in neuropathology with a particular interest in head injury. Her work includes thirteen years of forensic pathology in the U.K. She has been involved in forty-five to fifty homicides per year including more than two hundred cases of childhood head injury

166. [78] It is necessary to review Dr. deSa’s evidence at trial in order to assess the potential added value of the proposed fresh evidence.

167. [79] Dr. deSa testified based on two reports he authored, both of which were filed as exhibits. There were three main components to his opinion. First, he disagreed with the post-mortem conclusions concerning trauma. He opined that the chronic subdural haematoma was likely the result of birth trauma, and not prior shaking. He indicated that small subdural haemorrhages arising from birth trauma can be extremely difficult to diagnose, even with ultrasound. With respect to the fractured ribs, he said they were in fact the type of “spontaneous” rib fractures commonly seen in premature infants, and likely the result of minimal handling and positional change during the neonatal period. With respect to the liver, he said that what the examining pathologist had described as a crush injury was in fact an occluded vessel.

168. [80] Second, he opined that much of the clinical picture and many of the post-mortem findings, were inconsistent with Katie having been shaken. In particular, he pointed to the absence of signs of external trauma, the absence of cerebral contusion, the absence of axonal swelling or tears to the white matter of the brain, and the absence of blood in the subdural area of the cervical spine. He confirmed that he had consulted with Dr. Whitwell in connection with these findings based on her examination of the slides and said that she agreed with his opinion. He explained to the jury that Dr. Whitwell was a neuropathologist at the Queen Elizabeth Hospital in Birmingham, England and that she also acted as a forensic neuropathologist for the Home Office. In that capacity she would be called in to perform the autopsy in cases involving suspected foul play. He indicated Dr. Whitwell had been consulted in forty to fifty cases of alleged non-accidental head trauma to children, about half of which involved shaken baby syndrome.

169. [81] Third, although Dr. deSa felt shaking could be ruled out as a cause of Katie’s fatal haemorrhage, he could not say precisely how it occurred. He referred to several possible scenarios including overwhelming infection in a child already sick with lung disease, a central nervous system problem, rebleeding of a previous subdural haematoma, and pulmonary problems. Dr. deSa felt Katie would have had small areas of bleeding in her brain because of her premature birth and recurrent bouts of apnoea. These areas of bleeding made her particularly susceptible to episodes of rebleeding. Subsequent normal coagulation test[^16] results were not inconsistent with this theory as the test indicators could return to normal within 24 hours of a coagulopathy[^17]. He felt the most likely scenario leading to the fatal haemorrhage was cardiovascular collapse secondary to apnoea giving rise to a coagulopathy subsequent to resuscitation.

170. [82] Dr. deSa noted that Katie was pre-disposed to apnoea as a result of her pulmonary dysmaturity. The presence of a respiratory syncytial virus would have made matters worse in this respect. Dr. deSa felt that the damage to the heart muscle discovered during the autopsy could only have been caused by a cardiovascular collapse. The changes noted in the pituitary gland and spinal chord fortified his opinion in this respect.

171. [83] Dr. deSa postulated that Katie suffered an apnoea attack leading to a cardiovascular collapse while the V.O.N. nurse was present. The cardiovascular collapse need only have been ten to fifteen seconds in duration to cause a breakdown in the ability of Katie’s blood to coagulate, which in turn could have caused the chronic subdural haematoma to rebleed upon recommencement of blood circulation following resuscitation. Artificial respiration could have helped Katie recover from a cardiovascular collapse although recovery would have been more likely if she had been given C.P.R.

172. [84] Dr. deSa was unable to provide any opinion for the bleeding in the optic nerve sheath, other than to say hemosiderin-containing cells were present, which seemed to indicate that there had been at least some older haemorrhage at that site. As for the retinal haemorrhages, Dr. deSa testified that he had no opinion specifically about them, as, in contrast to forensic autopsies, the eyes are not routinely removed in most hospital autopsies. He said that retinal haemorrhages can occur in association with intracranial bleeding. However, the exact incidence is not stated in any text, and he did not have a sufficient “pathological … baseline” to know their frequency because of the practise in hospital autopsies.

173. [85] Turning to Dr. Whitwell’s evidence, the first three pages of the consultation note appended to her affidavit consist of a summary of the materials she reviewed and the findings reported. Her conclusions are noted on page four as follows:

174. Neuroradiologist – finds the degree of intraventricular haemorrhage extremely unusual for a primary traumatic aetiology. While I can see no firm evidence pathologically of definite vascular abnormality within the brain this should be considered. In addition there is considerable subarachnoid haemorrhage present diffusely which appears excessive – this is best visualised in the photograph taken at post mortem. In my experience one more commonly sees either nil or small areas. Also in this photograph, whilst the brain weight is increased over normal for corrected gestational age, the brain does not show the massive swelling commonly seen in severe shaking/impact injury. I also note no evidence of contusional tears or axonal injury which are well recognised in infant trauma. There is old subdural bleeding present – this is also seen in the CT scans – it is well recognised subdural haemorrhage can occur in premature infants as a complication of delivery. I note in the history of Katie periods of apnoea with abnormal movements which could be associated [with] previous intracranial problems. It is recognised that where there has been old bleeding re-bleeding can occur with minimal if any trauma, and I do not agree that violent shaking is the cause of the findings in this brain.

175. I note that various clotting studies have [been] done. In addition I note the history of recent infection. There is some evidence focally within the brain of neutrophil polymorph infiltration. Whilst this may be a response to the early ischaemic hypoxic injury I find the degree unusual and [it] raises the question of a generalized infection with increased bleeding tendency.

176. Whilst various changes noted in the eyes are described with shaking injury they can also be seen in association with swelling and intracranial haemorrhage and also bleeding abnormalities.

177. [86] The appellant relies on the following aspects of Dr. Whitwell’s cross-examination as also being particularly pertinent to her opinion:

178. ▪ the massive ventricular haemorrhage found in Katie is associated only very rarely with shaken baby syndrome and there was no evidence to support the assertion that the extent of intraventricular haemorrhage suggested a great degree of trauma;

179. ▪ the extent of subarachnoid haemorrhage found in Katie is not inconsistent with shaken baby syndrome but it is so exceedingly rare that she has never seen it;

180. ▪ she would not have labelled Katie a shaken baby in light of the extensive subarachnoid haemorrhage in combination with the intraventricular haemorrhage and the fact that Katie was a very young premature baby with an odd history;

181. ▪ the extent of brain swelling was not typical of shaken baby syndrome;

182. ▪ although she agreed Katie’s subdural haematoma was likely caused by torn bridging vessels, she felt that in the presence of old subdural haemorrhage these bridging vessels would not require much force to rupture;

183. ▪ there was some evidence of atrophy in Katie’s brain, atrophy increases the distances bridging veins have to travel and the ease with which bleeding can occur;

184. ▪ she felt Katie’s liver injury was relatively minor and was not one she had ever seen in a shaken baby. She was not “happy” with shaking as an explanation for this injury;

185. ▪ although retinal haemorrhages are recognized as a feature of shaken baby syndrome, they are also seen in the presence of subdural bleeding and raised intracranial pressure; moreover one cannot say retinal haemorrhaging of any kind is diagnostic of non-accidental injury;

186. ▪ although shaking could be an explanation for the retinal haemorrhages there is no scientific support for Dr. Levin’s opinion concerning the degree of force involved;

187. ▪ she would not call Katie a shaken baby for the following reasons:

188. Because what we have is a child who is premature, one of twins, shows evidence of older subdurals. It shows evidence in the brain of haemorrhages which are not in any way typical of shaken baby syndrome in terms of the intraventricular blood and the extensive subarachnoid bleeding and, to me, that is suggestive of an underlying brain abnormality in that child rather than as a result of trauma.

189. ▪ although shaking is a possible explanation for Katie’s demise she felt that possibility was much less likely than that Katie was a child with an abnormal brain who had complications because of that; even if Katie suffered her brain injury as a result of shaking, as a result of the presence of previous subdural haemorrhages and an abnormal brain, the force necessary to cause Katie’s injury would have been minimal, perhaps as little as a “simple flop”; and

190. ▪ she had examined three cases involving suspected non-accidental injury between April and August 2000 and had concluded all were the result of non-accidental shaking or impact.

191. [87] The force of the Crown’s case at trial arose from three main elements not undermined by the evidence of Dr. deSa:

192. ▪ the testimony of Dr. Levin that, in his opinion, only shaking could account for the severity and nature of the retinal haemorrhages he saw;

193. ▪ the assertion by some Crown experts that the variety of Katie’s symptoms could only reasonably be explained by severe shaking; and

194. ▪ the likelihood that the jury rejected the factual scenario postulated by Dr. deSa as the underpinning for a possible theory of causation.

195. [88] In my view, Dr. Whitwell’s evidence does not cast doubt on what I perceive to be the most significant aspects of the Crown’s case for the following reasons:

196. ▪ Dr. Whitwell agreed that it was not at all likely that Katie suffered the retinal haemorrhages Dr. Levin testified she exhibited as a result of a bleeding disorder. Although she disputed his testimony that the pattern of retinal haemorrhages could be diagnostic of shaking, she could not comment on the details of his evidence because it is not her area of expertise. Her specific testimony on cross-examination on this point is significant:

197. Q. … [Dr. Levin] concluded that these haemorrhages were not caused by any raising of intracranial pressure. He testified that while there was some correlation between that and retinal haemorrhages in adults, that there was no such correlation with children and raised intracranial pressure would cause a very distinctive type of superficial retinal haemorrhages which radiate in a specific pattern in a specific location, which was not seen in Katie Scott?

198. A. My understanding is that with raised intracranial pressure, you can see retinal haemorrhages. I cannot really comment further. There are retinal haemorrhages there and one can see retinal haemorrhages as I have seen in association with raised intracranial pressure. I cannot really comment any further. That is his opinion in terms of the distribution from his examination.

199. Q. He was the one who actually saw the eyes?

200. A. Yes, but I saw them down the microscope. I don’t think he has. He has looked at them with the ophthalmoscope.

201. Q. The descriptions of the patterns that he testified to in cases where there are retinal haemorrhages and intracranial pressure, he testified that that was not seen in this case?

202. A. I cannot comment because I did not see the eyes as he did. All I can say that from my examination of the eyes, they would be consistent with raised intracranial pressure. …

203. Q. … I take it you saw no particular pattern that Dr. Levin was talking about?

204. A. I have seen the eyes down a microscope. He had a different view. The findings in these eyes are consistent with raised intracranial pressure. He is looking at it in a different way.

205. …

206. Q. Is it fair to say that the method he used for looking at retinal haemorrhages gives him the advantage of being able to see patterns?

207. A. He can see the patterns. … There is very little written on these haemorrhage patterns. There is one paper but that is from a while ago. So from a pathological evidence aspect, that evidence is in its infancy. I cannot really comment any further than that.

208. Q. Is it fair to say that the retinal haemorrhages as were seen in this case by Dr. Levin are really a classic symptom of shaken infant syndrome?

209. A. They are, and I cannot give you percentages. I have just written a chapter on it. They are seen in quite a significant number of shaken infants, … I would say shaken or shaken impact infants …

210. …

211. Q. Is it fair to say that he has, by virtue of his qualification in this particular area, paediatric ophthalmology, a professional advantage over you in that particular area?

212. A. Oh, in paediatric, absolutely.

213. Q. Given that professional advantage that he has, would you then defer to his assessment of retinal haemorrhages and what he observes, and their significance, with respect to what those haemorrhages mean?

214. A. Essentially I am not the correct person to defer otherwise to his opinion. All I am saying is that retinal haemorrhages can occur in the presence of intracranial haemorrhages from non-accidental causes, or swollen brain, from non-accidental causes. That is all I can say. I am not an expert in that field. It is really for either an ophthalmologist or an ocular pathologist to comment further on that. I can’t take it any further.

215. Q. … He said that the important diagnostic features were the number of haemorrhages and distribution throughout the entire retina. He testified that when you see the extent and the pattern of the haemorrhages in these eyes, that shaken baby syndrome was far and away the number one thing that would cause this. Indeed, he said that shaken baby is really the top five likely causes of these haemorrhages. He described it as being overwhelmingly more common than any other entity, that it becomes almost diagnostic. He certainly offered a very powerful opinion with respect to what he thought caused these retinal haemorrhages. Do you accept that opinion?

216. A. I’m afraid we are going over old ground here. He is a paediatric ophthalmologist, and I really don’t feel in a position to make any further comment than I have in terms of his evidence.

217. …

218. Q. Does his analysis of the extent and pattern of the retinal haemorrhages make sense to you, from what you know?

219. A. From the pathological point of view, one cannot dogmatically say that they are due to shaking. It is not my field in terms of examination of the retinas, and that’s it.

220. In my view, the force of the Crown’s case arising from Dr. Levin’s testimony is only minimally diminished, if at all, by Dr. Whitwell’s evidence on this point.

221. ▪ Although Dr. Whitwell said that because of the extent of intraventricular haemorrhage, vascular abnormality should be considered, she agreed she had not been able to find anything in the brain sections to confirm the existence of vascular abnormality. She commented that vascular malformations in the brain can be extremely difficult to diagnose. Most significantly however she also agreed that ruptured vascular malformations would not explain all of the bleeding that was present in this case.

222. ▪ Dr. Whitwell did not postulate a specific factual scenario that may have caused Katie’s demise.

223. [89] The following matters also diminish the potential added value of Dr. Whitwell’s opinion:

224. ▪ Dr. Whitwell described her opinion as a provisional opinion both in her consultation note and in her affidavit. Although she explained that she did not intend to qualify the strength of her opinion as either tentative or temporary, she would have liked the opportunity to examine more sections and the brain itself, and to do further work on the case.

225. ▪ Dr. Whitwell agreed that although the extent of subarachnoid haemorrhage present in Katie’s brain is so rare she had never seen it; it is not inconsistent with shaken baby syndrome.

226. ▪ Dr. Whitwell agreed that although it is her opinion that Katie’s brain did not show the massive swelling commonly seen in severe shaking situations, Katie’s brain was swollen and she could not exclude shaking as a cause.

227. ▪ Dr. deSa gave evidence about the possible contribution of previous subdural bleeding sites that was similar to the evidence of Dr. Whitwell. He also said that Katie’s brain did not exhibit the findings one would expect from violent shaking based on his examination of the autopsy photographs and consultations with other specialists.

228. ▪ During her cross-examination Dr. Whitwell disputed the Crown neuropathologist’s trial testimony indicating he had discovered ruptured bridging vessels in the subdural space, however, because she had not had the opportunity to actually examine Katie’s brain in the way that he did, her evidence does not significantly undermine his evidence. Again, her specific testimony on cross-examination is important:

229. Q. … Dr. deSa testified … that in one of the recognized medical texts … torn bridging veins are manifestations of force involved [with injuries to the brain]?

230. A. Here we are talking about subdurals. We are not in the realms of contusional injuries. So we are talking about a different aspect of brain injury. I make two points on that. Yes, there is tearing of the bridging veins. Again, what I think is unknown is the force that you need for a young baby to produce subdurals because the experimental work is all on monkeys … and when one is talking about the force that is needed, particularly with the background of previous subdurals, where bleeding is likely to be much easier, then one is into unknown territory.

231. Q. Let me ask you in terms of that, the significance of this finding that Dr. Becker made. He testified that when an infant is shaken, the head moves back and forth, perhaps many times, and in the process, shearing injuries are created which rupture vessels in the subdural space. I take it that is factually accurate?

232. A. We do not know how many times the head goes back and forth.

233. Q. But the shearing injuries, those are commonly seen in this kind of case?

234. A. Yes

235. Q. Dr. Becker examined some of the sections and testified that he found vessels that had been ruptured in this way. If that is true, that is a fairly significant finding, is it not?

236. A. I cannot comment on that because, you know, I have not seen those sections. I am very unhappy about accepting that. I am not prepared to accept that as a positive finding, not at all.

237. …

238. I just cannot accept that because I have not seen it and I know from experience that it is incredibly difficult to see that. I would be very wary that that is not a misinterpretation.

239. …

240. From what I have seen of the sections that I have seen, particularly the presence of the older subdurals, I would have been extremely wary of making that diagnosis. I cannot comment any further unless I see precisely what he is talking about.

241. ▪ Dr. deSa gave evidence about the absence of contusional tears or axonal injuries commonly seen in shaken babies and referred to having consulted with Dr. Whitwell about this finding and to her extensive credentials.

242. ▪ Although Dr. deSa did not feel comfortable testifying about the results of Dr. Whitwell’s consultations with Dr. West, the neuroradiologist, and Dr. Duvall-Young, the ophthalmologist, her resulting opinions did not significantly supplement his evidence. Dr. Whitwell consulted those doctors because she had no particular expertise in their areas, however neither doctor possessed expertise in the paediatric aspects of their specialty comparable to that of the Crown experts.

243. [90] Notwithstanding the foregoing comments, it is clear that some added value would arise from Dr. Whitwell’s testimony and presence in court and I am unable to exclude the possibility that her evidence may have affected the jury’s verdict. Crown counsel commented in her closing on Dr. deSa’s lack of expertise in either paediatric pathology or neuropathology. Dr. Whitwell’s expertise could add force to all of the matters appellant’s counsel noted as being significant about her evidence.

244. [91] Nevertheless, in my view Dr. Whitwell’s evidence fails to meet the fourth Palmer criterion with sufficient force to justify its admission. Given that her evidence fails to cast doubt on the most significant aspects of the Crown’s case, and that its relative strength is diminished by the other factors mentioned, it lacks the strength necessary to outweigh the societal interest in finality of criminal proceedings. Trial counsel’s decision not to seek a mistrial at the conclusion of Dr. deSa’s evidence conforms to the assessment that the proposed fresh evidence lacks the added value to justify its admission. I would accordingly dismiss the fresh evidence application.

245. iii) Did the Trial Judge Err in Admitting Dr. Mian’s Evidence Concerning the Statistical Frequency of Non-Accidental Head Injuries and the Social Risk Factors Associated with Shaken Baby Syndrome?

246. a) The Statistical Evidence

247. [92] Dr. Marcellina Mian, a paediatrician and director of the Suspected Child Abuse and Neglect (SCAN) program at Sick Children’s Hospital, testified as an expert in the medical and psycho-social aspects of Shaken Baby Syndrome. Amongst other matters, she gave evidence as to the statistical frequency of non-accidental trauma versus accidental trauma in head injuries involving children. Specifically, in response to a question concerning how often intracranial haemorrhages occur in children Katie’s age, she referred to a study that suggested that the overall incidence of trauma in children under one year of age was about 86 per 1,000 children per annum of which 50% are head injuries. She said the study also indicated that 80% or more of deaths from head trauma in children under two years of age are the result of non-accidental head trauma and accordingly, “[o]f the ones who die, non-accidental trauma is four times more likely.”

248. [93] The potential prejudice arising from this evidence is that it would suggest to the jury that there was at least an 80% chance that Katie was shaken to death.

249. [94] I agree that it would have been preferable had this evidence not been given. I note however that it entailed no more than one half of a page of transcript in trial testimony encompassing several thousand pages. Dr. Mian did not suggest as part of her evidence that statistical likelihood could be used as an indicator of guilt. Particularly in light of the extensive and complex medical testimony placed before the jury relating to Katie’s condition and what may have caused it, I see no realistic possibility that the jury would have used this evidence in assessing the issue of guilt.

250. b) The Social Risk Factors Evidence

251. [95] Dr. Mian also gave evidence concerning psychosocial risk factors, which, in her opinion, play a role in shaken baby syndrome. She referred to youth, inexperience as parents, lack of family support, financial strain, the extent to which one or both parents are engaged in child care, general stressors in the home such as unemployment, presence of other siblings, and the health and character of the child as being examples of factors that can contribute to child abuse.

252. [96] The appellant asserts that this evidence was inadmissible on two bases. First, Dr. Mian said herself that much of this evidence was common sense. The appellant asserts it did not therefore meet the test of necessity in relation to the admission of expert evidence. Second, the appellant says the evidence was offered to show he was a member of a particular group with the same propensities as the perpetrator.

253. [97] In my view, the evidence was relevant as a response to what was effectively “good parent” character evidence led by the defence. This evidence portrayed the appellant as a concerned parent capable of dealing with his daughter’s apnoea and who was conscientious in seeking medical care for her. The evidence also indicated Katie had been in the home for a relatively few number of days.

254. [98] Although a shopping list of the stresses that can be present in the lives of parents would undoubtedly be a matter of common sense to a jury, it would not necessarily be a matter of common sense that the presence or absence of those stresses may contribute to the incidence of shaking by people who are otherwise good parents.

255. [99] The trial judge’s review in his charge of the positions of the Crown and the defence on these issues included the following comments:

256. Now, ladies and gentlemen, evidence that Jeffrey Smith was a good, caring father, if you accept it, can be taken into account by you in two very important ways.

257. … The evidence of his good character as a father is also capable of supporting the inference that he is unlikely to have committed the crime that he is accused of. If you decide to … accept the evidence of good character, that evidence may be sufficient of itself to raise a reasonable doubt about the guilt of the accused…

258. …

259. … if you accept it it’s capable of supporting the inference that he is unlikely to have committed the crime that he’s accused of. Good parents are less likely to shake their babies than bad parents.

260. …

261. With regard to why the accused might have shaken Katie on that day, the Crown submits that the evidence discloses a series of risk factors that resulted in a powder keg situation on the 21^st. Some of the risk factors included …

262. …

263. The defence says that notwithstanding Jeffrey Smith’s willing and untypical assumption of the responsibilities of fatherhood at the age of 17 and notwithstanding his repeated and persistent attempts to obtain appropriate medical assistance for his daughters, according to the defence, notwithstanding the absence of any evidence of foul play, despite careful monitoring of the twins and the family situation by health care professionals and … the lack of any reason or motive for Jeff to assault his daughter on March 21^st, despite all of those things, Jeffrey Smith now stands indicted with the murder of his daughter…

264. [100] In cross-examination, Dr. Mian gave evidence that included the following:

265. Q. Don’t you have any problem with the concept of parents rushing their children to the hospital sometimes two or three times a day. Every time they have a health problem … And actually having … disputes with the hospital authorities because they won’t keep their children in the hospital … aren’t you having trouble thinking parents that are that worried aren’t going to shake their baby … a day after getting out of hospital after having a serious infection?

266. A. No, it’s not unusual for parents who in fact bring their children to hospital repeatedly are also parents who will end up abusing their children. There’s not a one-on-one correlation.

267. …

268. Q. Tell me, doctor, is there anything that a parent might do that couldn’t be viewed as consistent with them being the type of parent that would shake their child? Is there? Is there any single fact that you couldn’t turn around and say, “oh, we can see this as evidence … that this man would shake his daughters”?

269. A. I am not giving you this … as evidence that this man has shaken his daughters, you asked me is it still possible given that this child had just come home that she would have been shaken. I’m telling you yes it is possible. I’m not saying it is likely. I’m not even saying that he’s done it. But you questioned me. You said can I conceive of it? Is it possible? And I’m saying yes it is possible. It is written that it can happen.

270. [101] It would undoubtedly have been preferable had the trial judge cautioned the jury that they should not use the presence of one or more of the noted factors to conclude that the appellant was the type of person who would shake his daughter to death, and had the trial judge explained in more detail the precise purpose for which the social risk factors evidence was adduced and how it should be used. In my view however even though the excerpted portion of the evidence arose during cross-examination it illustrates the point that this evidence was not presented in such a way so as to suggest that Mr. Smith belonged to the same class of individuals as the perpetrator or that the presence of various risk factors meant he is the type of person who would shake his child. I would not give effect to this ground of appeal.

271. iii) Did the Trial Judge Err in Failing to Instruct the Jury that, Even if Not Accepted, the Evidence of Mr. Smith Could Raise a Reasonable Doubt?

272. [102] The appellant submits that the trial judge erred in failing to instruct the jury that even though they might not believe his evidence, or the other evidence called on his behalf, that body of evidence is still capable of raising a reasonable doubt in accordance with the second branch of the charge in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). He submits that this error was fatal in the context of this particular case. The two main issues were whether Katie was purposely shaken to death, and, if she was, whether the appellant was the perpetrator. Given that he testified that he did not shake Katie, his credibility was clearly front and centre. He submits that the charge as a whole fails to convey the second branch of a proper W.(D.) instruction, either expressly or by implication, and that, in the absence of such an instruction, it is likely that, having determined they disbelieved his evidence, the jury proceeded directly to a finding of guilt.

273. [103] I disagree. The trial judge instructed the jury on the vital issue of credibility at several points during the course of his charge. Some of the key passages are as follows:

274. Remember, you do not have to decide whether to believe one group of witnesses over another; instead, when you are deciding whether the Crown has established beyond a reasonable doubt each of the elements of the offence including causation, you must consider all of the evidence. If after considering all of the evidence relevant to the issue of causation, you have a reasonable doubt then Jeffrey Smith will be found not guilty and you will not have to deliberate further in considering the issue of identity or whether if Jeffrey Smith did shake Katie to cause her death whether his act amounted to blameworthy homicide. [emphasis added]

275. …

276. If you disbelieve Jeffrey Smith and you think that maybe Katie had an apnoea attack and he panicked and shook her to try to revive her without realizing that what he was doing would harm the child and that he caused her death as a result then I instruct you that as a matter of law that would not be a crime.

277. On the other hand, if you decide that it is reasonably possible that what happened here was that Katie had an apnoea attack that day and when she didn’t respond Jeffrey Smith shook her in a panic in a misguided attempt to resuscitate her without realizing that what he was doing would harm the child and when he saw what he had done he lied about it then his conduct would not amount to an assault on Katie.

278. If you have a reasonable doubt about that then he would not have committed an unlawful act and you would be left in a state of reasonable doubt about an essential element of the offence.

279. …

280. Ladies and gentlemen, I want to caution you about a few other things. The decision for you to make is not whether you believe one group of witnesses over another. The decision for you to make is whether the Crown has proved beyond a reasonable doubt that the accused Jeffrey Smith is guilty of any crime or if you have a reasonable doubt about his guilt. It is important to remember, therefore, that even if you do not believe Jeffrey Smith or any of the other defence witnesses, you must still consider all of the other evidence and only if you are satisfied beyond a reasonable doubt after considering all of the other evidence would you be justified in returning a verdict of guilty of any crime. [emphasis added]

281. [104] In my view it is clear from the second of the foregoing passages that the trial judge conveyed to the jury through an example that even if they disbelieved the appellant’s evidence, it was still capable of giving rise to a reasonable doubt. The trial judge also told the jury on at least two occasions that they were not required to decide whether they believed one group of witnesses over another. Accordingly, while I agree that it would have been preferable for the trial judge to have explicitly instructed the jury in accordance with the standard W.(D.) formulation, he effectively communicated the necessary concepts, and the absence of an express instruction does not amount to reversible error in the circumstances.

282. iv) Did the Trial Judge Err in his Instructions to the Jury on Reasonable Doubt?

283. [105] The instructions to the jury in this case were delivered prior to the Supreme Court of Canada’s decision in R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1. The trial judge said the following about reasonable doubt:

284. Now, when I speak of reasonable doubt, I use the words in their ordinary natural meaning, not as a legal term having some special connotation. I think you know what a reasonable doubt is. It’s an honest, fair doubt based on reason and common sense. It’s a real doubt, not an imaginary or frivolous doubt. Proof beyond a reasonable doubt has been achieved when each of you as jurors feels sure of the guilt of the accused of the charge which he faces. In order to convict Mr. Smith, you must each be able to say that you are sure that he is truly guilty.

285. …

286. On the other hand, should the evidence which you have heard leave you with a lingering or nagging doubt with respect to the proof of some essential element of the offence with which the accused is charged so that you are unable to say to yourselves that the Crown has proven the guilt of the accused in respect of that offence beyond a reasonable doubt so that you are sure of the guilt of the accused then your duty is to find him not guilty of that offence.

287. [106] This instruction is similar, if not identical, to an instruction on reasonable doubt given by the same trial judge and considered by this court in R. v. Phillips (2001), 2001 CanLII 24121 (ON CA), 154 C.C.C. (3d) 345 (Ont. C.A.). As in this case, the appellants in Phillips submitted that the trial judge erred by failing to expressly compare and distinguish the criminal standard of proof from the civil standard of proof. The appellants in Phillips also asserted that the trial judge erred by defining reasonable doubt as “an honest and fair” doubt based on reason and common sense and by describing it as an “ordinary term”, not a “legal term having some special connotation”. Moldaver J.A. said the following, at paras. 38, and 42-49 of Phillips, in finding the foregoing instruction to be sufficient compliance with the Lifchus requirements:

288. As a result of these alleged errors, the appellants contend that the jury may well have been led to believe that proof beyond a reasonable doubt would be achieved, in relation to each accused, if they were satisfied that he “probably” was the person who shot and killed the deceased.

289. …

290. Turning to the first of the three complaints, the appellants submit that it was wrong to qualify the word “doubt” with the adjectives “honest” and “fair” because the use of those words may well have induced the jury to apply a standard of proof lower than that required. (See R. v. Lifchus, supra, at p. 10). I disagree.

291. In my view, the words “honest” and “fair” do not add or detract, in any meaningful sense, from the word “reasonable” which itself modifies the word “doubt”. Rather, as I see it, they are essentially synonymous with the word “reasonable”. How a “dishonest” and “unfair” doubt could nonetheless be said to be “reasonable” escapes me!

292. Unlike adjectives such as “serious”, “haunting” and “substantial” which Cory J. in Lifchus, supra, at p. 10, found to be offensive because of their tendency to mislead the jury into applying a higher or lower standard of proof than that required, the words “honest” and “fair” are far less problematic. Indeed, I question whether their use is improper at all. Be that as it may, if the trial judge did err in including them, the error was not fatal. (See R. v. Russell, 2000 SCC 55, [2000] 2 S.C.R. 731]).

293. The second concern relates to the description of reasonable doubt as an “ordinary term”, not a “legal term having some special connotation”. In light of Lifchus, supra, and its progeny, it is clear that this language should not have been used. It is equally clear however, that standing alone, this error could not realistically have misled the jury into applying the civil standard of proof. Rather, its impact, if any, must be assessed in context, having regard to the instruction as a whole.

294. That brings me to the third concern, namely, the failure on the part of the trial judge to expressly compare and distinguish the criminal standard of proof from the civil standard of proof.

295. Manifestly, the impugned instruction does not track the language used by Cory J., at p. 13 of Lifchus, supra, to differentiate the criminal and civil standards of proof. In and of itself, however, that is not fatal. The crucial issue is whether the instruction, read as a whole, raises a reasonable likelihood that the jury misapprehended the correct standard of proof.

296. Measured against that yardstick, I am satisfied that the language used by the trial judge adequately distinguished the criminal standard of proof from the civil standard of proof. The trial judge told the jury that proof beyond a reasonable doubt would only be achieved if they felt “sure of the guilt of the accused”. In the next sentence, he made it clear that in order to convict, the jury had to be satisfied beyond a reasonable doubt that each accused was “truly guilty”. Shortly thereafter, he reinforced the very high standard of proof needed to convict when he instructed the jury, in no uncertain terms, that if, after considering the whole of the evidence, they were left with a “lingering” or “nagging” doubt such that they could not be sure of the guilt of the accused, then it was their duty to acquit.

297. Read as a whole, I am satisfied the jury would have appreciated the high standard of proof needed to support a conviction. Expressed somewhat differently, it is speculative to think that this jury would have been left with the impression that proof on a balance of probabilities or anything close to it was sufficient to justify a conviction.

298. [107] I am mindful that appellate review of pre-Lifchus instructions must be carried out on a case specific basis with a view to determining whether the charge, read as a whole, gives rise to a reasonable likelihood that the jury misapprehended the correct standard of proof: R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745 at para. 12. I am also mindful of the fact that the pre-Lifchus deficiencies in Avetysan were found to have been exacerbated by a failure to instruct the jury in accordance with W.(D.).

299. [108] Here, I am satisfied that the concepts from W.(D.) were adequately communicated for the reasons previously set out. Having reviewed the instruction on reasonable doubt, in the context of the charge as a whole, I would not give effect to this ground of appeal for the reasons set out by Moldaver J.A. in Phillips.

300. v) Did the Trial Judge Err in his Instruction to the Jury Concerning how to Deal with the Conflicting Medical Evidence?

301. [109] The trial judge’s instructions to the jury concerning expert evidence included the following:

302. I want to make some comments about expert witnesses. This case has been extraordinary, if not unique, because of the significant role of experts. Obviously you, ladies and gentlemen, and I are not possessed of special knowledge to allow us to decide what was wrong with Katie or what happened to her that tragically ended her life. That is why the law permits the calling of expert witnesses to help us understand things that are not within our knowledge as laypersons. In a case like this, the expert medical evidence is crucial to an understanding of the issues to be decided. We would not have got very far without the benefit of the expertise of the expert witnesses.

303. …

304. Now, the reason I described Dr. deSa’s credentials in more detail than the others is not because you should consider him to be any more credible than the expert witnesses called by the Crown; instead, I did that in order to emphasize what I’m about to say: Ladies and gentlemen, you must guard carefully about the possibility of letting the sheer numbers of expert witnesses sway you or take you away from your task of independently assessing the evidence.

305. …

306. Ladies and gentlemen, over the past ten weeks, we have been afforded a glimpse into a fascinating and impressive world, the world of paediatric health care. I have and you no doubt have as well gained new insight into the great contribution paediatrics has made in the last generation. You and I have learned of the enormous progress that has been made in all aspects of the medical treatment of newborns including premature infants. We have also learned that there is much that is not yet known and experts can and they will vigorously disagree and we have also seen that like the rest of us they can be wrong. [emphasis added]

307. Ladies and gentlemen, I’m quite sure that you realize that medical experts, for all of their credentials, are subject to the same human frailties as are all human beings. You may have found some of them to be shy and modest and others arrogant and pompous. You may or may not have perceived bias and narrow-mindedness in some but not others. As well, you may or may not have thought that some of them were not truthful in all aspects of their testimony. In the end, it is your perceptions and your conclusions which will determine what, if any, weight to give to the opinion of any of the experts. [emphasis added]

308. The crucial issues in the criminal law, the credibility of witnesses, the guilt or innocence of accused persons must not be decided by expert witnesses no matter how high their qualifications. ... [emphasis added]

309. It has been said that in a criminal trial it is not safe for a jury to arrive at a verdict based on expert evidence alone. You must instead consider the totality of the evidence in arriving at your verdict and you must weigh the credibility of the expert medical witnesses in the same way that you approach an assessment of any other witness. As well, before relying on the opinion of an expert witness you must be satisfied that there is a scientific basis for the opinion expressed. Above all, please remember you may believe all or none or only part of the evidence of any witness including that of the experts. [emphasis added]

310. In the end, before you are entitled to return a verdict of guilt of either murder or manslaughter you must be satisfied beyond a reasonable doubt on the totality of the evidence that all of the elements of the particular offence have been proved. [emphasis added]

311. …

312. I have talked at some length about expert evidence, the fact that although this evidence is important, without it you probably wouldn’t have any insight into this case really. At the same time you mustn’t be bowled over by it because in the end, although experts have special knowledge they are subject to the same frailties as everybody else and it’s for you to assess their evidence in the same way that you assess the evidence of other witnesses. [emphasis added]

313. [110] Subsequently, after concluding his instructions and review of the evidence on the issue of causation the trial judge said the following:

314. Remember, you do not have to decide whether to believe one group of witnesses over another; instead, when you are deciding whether the Crown has established beyond a reasonable doubt each of the elements of the offence including causation, you must consider all of the evidence. If after considering all of the evidence relevant to the issue of causation, you have a reasonable doubt then Jeffrey Smith will be found not guilty and you will not have to deliberate further in considering the issue of identity or whether if Jeffrey Smith did shake Katie to cause her death whether his act amounted to blameworthy homicide. [emphasis added]

315. [111] The appellant contends that faced with Crown and defence medical evidence that was diametrically opposed on the issue of causation it was incumbent on the trial judge to tell the jury that they could only convict if they were sure the Crown expert evidence was correct. He submits that the trial judge committed reversible error by failing to communicate this essential instruction to the jury, either expressly or by implication.

316. [112] I disagree. The appellant relies on comments of this court, which are set out below, in R. v. Molnar (1990), 1990 CanLII 10925 (ON CA), 55 C.C.C. (3d) 446 and R. v. Bourguignon (1997), 1997 CanLII 1917 (ON CA), 118 C.C.C. (3d) 43 in support of his position. In my view, the comments in Molnar are a specific response to an error sometimes committed when faced with conflicting expert evidence on a vital issue i.e. instructing the jury to accept the opinion, which in their view, is entitled to greater weight. The suggested instruction embodied in the comments emphasizes the error committed. It is not intended to displace the usual rules concerning instructions about the standard of proof. As is explained in R. v. Wade (1994), 1994 CanLII 10562 (ON CA), 89 C.C.C. (3d) 39 (Ont. C.A.) the standard of proof as applied to expert evidence is no different than the standard of proof as it applies to all other evidence.

317. [113] In Molnar, the appellant appealed from his conviction for arson in relation to a dwelling house. Crown experts testified that the fire was of an incendiary origin, while defence experts said it was accidental. The trial judge instructed the jury as follows:

318. You also heard that there’s a conflict in the opinion of some of the experts. Simply resolve that conflict by accepting the opinion that, in your judgment, is entitled to the greater weight.

319. [114] This court said the following at p. 447:

320. We are not satisfied that this is a correct statement of the law with respect to expert evidence. We think that this is the same error that the trial judge fell into in R. v. Parnell (1983), 1983 CanLII 3602 (ON CA), 9 C.C.C. (3d) 353 (Ont. C.A.). At pp. 363-4 Mr. Justice Lacourcière, for the court, said this:

321. The proper direction to be given in a case of conflicting expert evidence is summarized in a case summary and comment in R. v. Platt, [1981] Crim. L.R. 332. In that case, two pathologists, one called by the prosecution and the other for the defence, had expressed differing opinions as to the maximum time between the infliction of certain injuries and the brain death of the victim. In relation to the conflicting doctors, the jury was directed “You have to decide whose evidence you prefer.” Allowing the appeal from a conviction for manslaughter, the Court of Appeal said, in summary, at p. 333:

322. “The only safe way of directing the jury was either to tell them that before they accepted the opinion of the prosecution’s pathologist they must feel sure that he was correct, or else to tell them that they were to assume that the defence pathologist was right and, therefore, to approach the case on the other evidence solely and not base their approach on the pathologist’s evidence at all. Unfortunately the judge had done neither but had asked the jury to decide which of the two bodies of medical evidence they preferred. In the extraordinary circumstances, that was a misdirection and the conviction would be quashed.”

323. In cases of competing expert evidence, it is not proper to limit the jury by asking whose evidence is preferred or who had the better opportunity to observe. It is correct to point to the latter, as a factor only, to be considered in resolving the question whether the Crown has proved guilt beyond a reasonable doubt: see R. v. Laverty (No. 2), (1979) 1979 CanLII 3010 (ON CA), 47 C.C.C. (2d) 60 at p. 62 …

324. We are not satisfied that had the jury been correctly charged in accordance with the decision in R. v. Parnell, supra, the verdict would have been the same. That is, in our view, sufficient reason to order a new trial.

325. [115] In Bourguignon the appellant was convicted of the murder of his two and a half year old nephew who had been sexually assaulted and strangled. Scratch marks were observed on the appellant’s body following his arrest. Some witnesses reported the appellant attributing the marks to a fall from a horse, while others reported him saying a stray cat caused them. At trial, the appellant said they were inflicted by a cat, and denied saying they were caused by a fall from a horse. The Crown called a dermatologist, who said the marks could have been caused by fingernails but not a fall from a horse, and a veterinarian, who opined that a cat could not have caused the marks. A defence expert said in chief, it was impossible to say whether a cat had caused the marks. However, he agreed in cross-examination that he would defer to a veterinarian. The appellant submitted that the trial judge erred by failing to instruct the jury that they could only act on the Crown expert evidence if they felt sure it was correct. This court simply commented that the Molnar principle had no application because the competing expert opinions did not relate to a critical issue.

326. [116] In Wade the appellant killed his wife but raised the defence of non-insane automatism brought on by a variety of sleep disorders. The defence adduced a variety of expert evidence indicating the accused was in an automatic state, unaware and unable to control what he was doing. The Crown relied on an expert who testified that in his opinion the accused was not in a state of automatism at the time of the killing. Doherty J.A. said the following at p. 50:

327. Counsel for the appellant further contends that the trial judge failed to instruct the jury properly with respect to the onus of proof as it related to the opinion of the competing experts. He argues that the jury should have been told that they could accept the evidence of the Crown expert … only if they could “arrive at a conclusion with certainty that he was correct”.

328. The trial judge did not so instruct the jury. He would have been in error had he done so. Certainty suggests a level of proof beyond that required by proof beyond a reasonable doubt. Furthermore, the ultimate burden of proof applies to the entirety of the Crown’s case, and not to the evidence of a single witness: R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 at p. 205 … The Crown’s case rested on more than the evidence of [its expert], and it would have been reversible error in favour of the Crown had the trial judge instructed the jury in the manner now contended for by counsel for the appellant. [emphasis added]

329. The trial judge made it clear that the expert evidence was a crucial feature of this case. After an accurate and even-handed direction as to the evidentiary significance of that evidence and the manner in which the jury should assess and consider that evidence, the trial judge continued:

330. Now really, the issue of sleepwalking, automatism, is the central issue in this case. I cannot see how a trier of fact in the circumstances of this case, would be able to convict unless the trier of fact rejected the conclusions of the psychiatrists who testified for the defence and was left in no state of reasonable doubt by those conclusions. I only say that because their conclusion was that the accused was, on the facts given to them, in a state of automatism. That clearly, is the central issue in this case.

331. This direction effectively alerted the jury to the operation of the burden of proof as it related to the competing opinions of the experts.

332. [117] In this case the trial judge did not fall into the error identified in Molnar, but rather, correctly instructed the jury that they were not obliged to decide whether to believe one group of witnesses over another. He also clearly and properly instructed the jury that the guilt of accused persons must not be decided by expert witnesses, and that they could only convict if satisfied beyond a reasonable doubt based on the totality of the evidence that all of the elements of either murder or manslaughter had been proven. As already noted, the trial judge communicated the second branch of W.(D.) by way of example. He also carefully warned the jury not to be swayed by the number of witnesses who testified for the Crown, nor by the credentials of the various experts.

333. [118] In my view, the trial judge’s instructions encompass all of the necessary elements arising from the noted authorities. Notably, experienced trial counsel did not object. Although it would have been open to the trial judge to instruct the jury along the more emphatic lines set out in Wade, he did not commit reversible error by simply instructing the jury that they must be satisfied as to the proof of each element of the offence beyond a reasonable doubt based on the totality of the evidence.

334. Disposition

335. [119] For the reasons given, I would dismiss this appeal.

337. Released: December 18, 2001 “D.D.”

338. “Janet Simmons J.A.”

339. “I agree Doherty J.A.”

340. “I agree K. Feldman J.A.”

[^1]: Their mother’s due date was February 2, 1994. [^2]: Explained literally by the examining pathologist to mean a problem with the brain arising from lack of oxygen and lack of blood flow. [^3]: A neonatologist called by the Crown described apnoea as a period during which a baby fails to take a normal breath. When a pause in breathing is 20 seconds or longer, it is generally referred to as apnoea. [^4]: “Retinopathy of prematurity” means simply premature retina. The blood vessels in the retina have not covered it completely, and a line has formed to demarcate where they have gotten and where they have they have to go. [^5]: A common childhood lung virus that can cause infection and inflammation (pneumonitis). [^6]: A virus that is the most common cause of diarrhoea and vomiting in children. [^7]: The subdural space is the space between the dura (a tough membrane lining the skull) and the arachnoid membrane (outer surface of the brain). The subarachnoid space is the space between the arachnoid membrane (directly on the surface of the brain) and the surface of the brain (pia). The ventricles are four spaces within the brain that are filled with cerebral spinal fluid, and which act as a cushion for the brain. The white matter and grey matter of the brain are arranged around the ventricles. [^8]: Deposit of iron from red blood cells left after red blood cells in a haemorrhage break down (evidences old haemorrhage). [^9]: Swelling of the brain. [^10]: Dead cells within the pituitary gland (at base of brain) due to a lack of blood flow through the gland. [^11]: Immature lungs. [^12]: Death of cells in the muscle of the heart. [^13]: Prominent vein running along the top of the brain between the left and right hemispheres that plays a role in draining blood from the brain. In Katie’s case this vein was considerably smaller than normal. [^14]: Improperly formed vein structure. [^15]: Back inner side of the eye that is the area of the eye with which one actually views the world. [^16]: For blood to coagulate (clot) it is dependent on a number of coagulation factors (i.e. fibrinogen), many of which are related to liver function. The tests measure levels of activity in different coagulation factors to measure different elements in the development of coagulation. [^17]: Describes a situation in which the blood does not clot normally because the coagulation factors have been destroyed or used up.