DATE: 2004-04-23 DOCKET: M30565-C32352
COURT OF APPEAL FOR ONTARIO
DOHERTY, SHARPE and SIMMONS JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and -
MARCO TROTTA Applicant
Counsel: Lucy Cecchetto for the Crown Russell Palin for Peterborough Lakefield Police Services Howard Borenstein for Anisa Trotta Delmar Doucette for Anthony Kporwodu John Rosen for Angelo Veno Michael Lomer and Janette Mills for Marco Trotta Al O'Marra, Walter Myrka and Richard Coutinho for the Office of the Chief Coroner
HEARD: January 9, 2004
An application seeking production of certain documentation in connection with appeals pending from convictions entered by a jury presided over by Mr. Justice Alfred J. Stong of the Ontario Court of Justice (Gen. Div.) on June 12, 1998.
DOHERTY J.A.:
[1] Marco Trotta, an appellant in a pending appeal, sought an order requiring the Crown to produce certain material in its possession. Anisa Trotta, a co-accused and appellant in the same proceedings, supported the application. The court reserved judgment at the end of oral argument and subsequently advised counsel that the application was dismissed with reasons to follow. These are those reasons.
I
[2] Eight-month old Paulo Trotta died on May 20, 1993. Dr. David Chan performed an autopsy and concluded that his death was attributable to Sudden Infant Death Syndrome (SIDS). About a year after Paulo's death, his one-month old brother, Marco Jr., was admitted to hospital with a fractured femur. Hospital personnel suspected that Marco Jr. had been physically abused. The authorities opened an investigation into Marco's injuries and also decided to re-examine the death of Paulo. Paulo's body was exhumed and a second autopsy was performed by Dr. Randal Smith. This autopsy and related investigations revealed various injuries to Paulo, including three skull fractures. Dr. Smith could not identify a specific cause of death, however, in his view, death was consistent with brain edema due to brain injury and asphyxiation caused either by the brain injury or to mechanical asphyxiation. Dr. Smith rejected the diagnosis of SIDS and testified that in the absence of a credible explanation for the injuries, he assumed that the death was not accidental.
[3] The police charged the applicant, Paulo's father, with murder, aggravated assault and assault causing bodily harm. They charged Anisa Trotta, Paulo's mother, with manslaughter, criminal negligence causing death and failure to provide the necessaries of life. It was the Crown's position that Paulo's numerous injuries were inflicted by his father at different times, and that his mother knew or should have known of the assaults, but failed to take action to protect Paulo because of her devotion to her husband, Marco.
[4] The jury convicted the applicant on all charges. They acquitted Anisa Trotta on the manslaughter charge, but convicted her on the other two charges. Both have appealed their convictions to this court.
II
The Nature of the Application
[5] The perfection of these appeals was delayed for various reasons. They have now been perfected and are scheduled to be heard in May of this year. Counsel for the appellants have been in correspondence with Crown counsel for quite some time concerning production of material in the possession of the Crown relating to various reviews or comments that have been made regarding Dr. Smith's competency as a paediatric pathologist and his objectivity as a Crown witness in a number of criminal investigations. The appellants intend to bring an application to adduce fresh evidence on the appeal challenging Dr. Smith's competency and objectivity. As I understand it, they propose to lead evidence demonstrating that his work in other cases was not competent and that he was biased in favour of the Crown in other cases. The appellants will argue that this evidence renders his opinion evidence in this case unreliable.
[6] By notice of application dated November 4, 2003, Marco Trotta (the "applicant") moved before Sharpe J.A. for an order requiring production of certain material in possession of the Crown and/or the Office of the Chief Coroner of Ontario (the "Coroner"). Although the notice of application did not expressly say so, it was common ground that the applicant sought production of material to assist him in his efforts to gather fresh evidence to challenge the competency and objectivity of Dr. Smith. Sharpe J.A. held that a judge of the court did not have jurisdiction to make the order sought. He referred the application to a panel of the court and gave various directions, including requiring the notification of third parties whose privacy interests would be affected by a disclosure order.
[7] When the application came on for hearing in January 2004, the applicant had not filed any motion to adduce fresh evidence on the appeal. The court was advised by counsel for the applicant that the applicant would be pursuing a fresh evidence application targeting the credibility and reliability of Dr. Smith's evidence regardless of the outcome of this application.
[8] The applicant seeks material that falls into one of two categories:
- Materials associated with reviews of Dr. Smith's work in 17 criminal matters conducted at the request of the Attorney General's Department. In all cases, the Coroner's office did an internal review and, in some cases, an external review was also performed.
- Material provided by Crown attorneys in response to inquiries from the Attorney General's Department as to any concerns the Crown Attorneys had arising out of Dr. Smith's participation in any criminal investigations or prosecutions.
[9] The material in the first category described above was ordered produced in November 2002 by Trafford J. in R. v. Kporwodu and Veno.[^1] In that case, Dr. Smith had performed an autopsy on the three-month old deceased. His opinion as to the timing of certain injuries was crucial to the decision to charge the accused with murder. Counsel for Kporwodu and Veno sought disclosure of the material generated as a result of the internal and external reviews of Dr. Smith's performance in other criminal matters. The Crown resisted production. Trafford J. held that the material was producible under the principles enunciated in R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.).
[10] The materials referred to in the second category were voluntarily produced to the defence by the Crown in R. v. Kporwodu and Veno.
[11] Mr. Lomer, counsel for the applicant, submitted that the applicant is in the same position as were Mr. Kporwodu and Mr. Veno and that this court should make the same order that Trafford J. made. He contends that Dr. Smith's evidence was important evidence at trial. The Crown relied on his opinions to support the position that Paulo's death was a culpable homicide. Counsel argues that if there is good reason to doubt those opinions, there is good reason to doubt the validity of the convictions.
[12] Mr. Lomer concedes that Dr. Smith's competency and objectivity were not attacked at trial. He argues that developments since 1998 place Dr. Smith's competency and objectivity in a very different light. Counsel points out that since the fall of 1999, there has been a growing body of public, judicial and medical opinion casting doubt on Dr. Smith's competency as a paediatric pathologist and his objectivity as a Crown witness. Some of that material is referred to by Trafford J. in R. v. Kporwodu and Veno and some of it is found in the material filed in support of the application.
[13] Counsel submits that the material he seeks produced may provide evidence of Dr. Smith's competency or objectivity, or may lead to such evidence. He argues that the principles in R v. Stinchcombe, supra, govern the Crown's disclosure obligation on appeal and that under those principles any information in the possession of the Crown which may assist the applicant in challenging Dr. Smith's credibility must be produced to the defence unless protected by some recognized privilege or some overriding third party interest: see R. v. O'Connor (1996), 103 C.C.C. (3d) 1 (S.C.C.).
[14] Counsel correctly points out that the Crown has not advanced any privilege claim. He seeks to avoid any complications that may arise from third party claims by abandoning for the present, at least, any claim to production of any material that is subject to a third party privacy claim that has not been waived on this application.
[15] Counsel for the applicant acknowledges that he will ultimately have to convince the court that it is in the interests of justice to receive fresh evidence going to the competency and objectivity of Dr. Smith. He accepts that at that stage, the factors identified in R. v. Palmer, [1980] 1 S.C.R. 759 will become important. He maintains, however, that the ultimate admissibility of any of the material he seeks produced has no bearing on whether the Crown is obliged to produce it to him. It is his position that he need only show that the material sought could potentially offer some assistance to the applicant in the pursuit of his fresh evidence application.
[16] Counsel for Kporwodu and Veno appeared on the application. They are in possession of copies of the material that the applicant wants. They properly take the position that they hold the material subject to an undertaking that they will use it only in the defence of their own clients. They cannot produce it to counsel for the applicant without a court order. Counsel for Kporwodu and Veno take no position on the merits of the application, but offered to provide whatever assistance the court might request either on the application, or in connection with any order to produce the court might make. Counsel helpfully advised the court that their copies of the material have been organized and indexed to facilitate access.
[17] Counsel for the Coroner appeared on the motion to ensure that the court appreciated the sensitive and personal nature of some of the information contained in the material sought by the applicant. The material includes autopsy reports, other medical records, and information from various social service agencies. Counsel for the Coroner stressed that privacy interests of third parties, including parents of deceased children, had to be considered before the court could order production of the material sought by the applicant. Counsel contacted several individuals with potential privacy interests. Some had waived those interests, others had asserted those interests, and still others did not reply to the Coroner's inquiry.
[18] I agree that there are very difficult and important privacy issues raised by the production request as initially framed by the applicant. However, as indicated above, the applicant abandoned his request for production of any material that could be subject to a third party privacy claim unless that claim has been waived. For present purposes, the difficult issues flagged by Coroner's counsel do not arise and nothing said in the rest of these reasons is intended to address a situation in which third party interests must be considered.
[19] The Crown opposed the application. Crown counsel did not suggest that the Crown did not have disclosure obligations at the appellate stage of the criminal process. She submitted, however, that before the Crown could be required to produce material in relation to an appeal, the applicant must offer some ground upon which the requested material could be admitted as fresh evidence on the appeal. Counsel forcefully argued that any attempt to challenge Dr. Smith's competency and objectivity by way of evidence questioning his competency and objectivity in other cases could not possibly be admitted as fresh evidence on this appeal absent some reason to doubt the accuracy of the medical opinions he gave in this case. Counsel stressed that the applicant has had five years since his trial to seek and obtain medical evidence challenging any part of Dr. Smith's opinion. The applicant has offered no such evidence.[^2] Crown counsel submitted that this application for production has delayed what is already a long overdue appeal. She contended that an order requiring production would only cause further delay with no real prospect that it would generate any evidence which would be admitted on appeal.
III
The Disclosure Obligation
[20] The Crown is obliged to make timely disclosure to an accused of all relevant information in the Crown's possession: R. v. Stinchcombe, supra, at pp. 9-12. Relevant information refers to any information that there is a reasonable possibility may assist the accused in any aspect of the exercise of the right to make full answer and defence: R. v. Chaplin (1995), 96 C.C.C. (3d) 225 at 233-34 (S.C.C.); R. v. Dixon (1998), 122 C.C.C. (3d) 1 at 11-12 (S.C.C.). Any information that clears this low relevance hurdle must be disclosed by the Crown unless the Crown can establish a privilege that precludes disclosure: Stinchcombe, supra.
[21] The heavy disclosure obligation placed on the Crown is necessary to give full vitality to an accused's right to make full answer and defence as protected under s. 7 of the Charter. Full, generous and timely disclosure protects against wrongful convictions. As Sopinka J. said in Stinchcombe at p. 9:
… There is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigor by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice [citations omitted]. The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure the innocent are not convicted.
[22] The disclosure jurisprudence arises out of the pre-verdict phase of the criminal process. I see no reason why the Crown's disclosure obligations should not continue through the appellate process. The protection of the innocent is as important on appeal as it is prior to conviction.
[23] While the nature of the Crown's disclosure obligation and its rationale remain constant after conviction, the resolution of disclosure disputes on appeal will require a somewhat different analytical framework than that described in Stinchcombe. There are at least two reasons for this different approach. A convicted accused is no longer presumed innocent. In fact, the opposite is presumed. The conviction stands unless the appellant can convince the appeal court that it should be set aside. A convicted person has also exhausted his or her right to make full answer and defence. It is inappropriate at the appellate stage to speak either of the presumption of innocence or the right to make full answer and defence. It is equally inappropriate to describe the boundaries of the Crown's disclosure obligation on appeal by reference to the presumption of innocence or an accused's right to make full answer and defence.
[24] An accused does, however, have broad rights of appeal under the Criminal Code. These include not only legal and factual challenges arising out of the trial record, but also the right to adduce fresh evidence under s. 683(1) if the interests of justice so require. The broad rights of appeal, the power to receive fresh evidence, and the court's wide remedial powers are all designed to maximize protection against wrongful convictions.
[25] The Crown's disclosure obligation on appeal must recognize and give full value to an accused's broad rights of appeal and the rationale underlying those rights. The Crown's disclosure obligation on appeal must extend to any information in the possession of the Crown that there is a reasonable possibility may assist the accused in the prosecution of his or her appeal.[^3] In the present case, the applicant seeks disclosure in aid of a proposed fresh evidence motion. To obtain production, the applicant must first demonstrate a connection between the request for production and the fresh evidence he proposes to adduce. The applicant must show that there is a reasonable possibility that the material sought could assist on the motion to adduce fresh evidence. By assist, I mean yield material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence. The applicant must next demonstrate that there is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal. Unless the appellant can make both links, there is no reasonable possibility that the material sought could assist in the prosecution of the appeal and consequently, no reason for this court to require the Crown to disclose it.
[26] In assessing whether the applicant has made the first link, that is some connection between the material sought and the evidence proposed to be adduced on appeal, the applicant will often have limited knowledge of the contents of the material. The court will bear this disadvantage in mind in determining whether the applicant has established the necessary link. In this case, that difficulty does not arise. The applicant has a very good idea of the nature, if not the specifics, of the content of the material he seeks.
[27] I am satisfied that the applicant has demonstrated a link between the material he seeks produced and evidence that would challenge Dr. Smith's competence as a paediatric pathologist and his objectivity when testifying for the Crown. The applicant has shown that the material he seeks could provide evidence going to either or both of these issues, or at least could provide material that would assist in generating evidence that would be relevant to Dr. Smith's professional competence and his objectivity.
[28] In considering whether the applicant has made the second link, that is whether evidence of the kind he proposes to adduce could reasonably be received on appeal, it is necessary to consider the principles governing the admission of fresh evidence on appeal. At this stage, those principles are consulted not to determine admissibility, but to determine whether there is a reasonable possibility of admissibility.
[29] Section 683(1) of the Criminal Code provides that the court may receive fresh evidence where it is "in the interests of justice". Criteria to be addressed in determining whether fresh evidence should be admitted are well known and I need not repeat them here: see R. v. Palmer, supra. I will refer to only one of those criteria. Fresh evidence will not be received unless considered with the rest of the evidence adduced at trial, it could reasonably be expected to affect the verdict. This only makes sense. Evidence which is not sufficiently cogent to give cause for concern over the verdict serves no purpose at the appellate stage.
[30] Dr. Smith testified that the weight of Paulo's brain as recorded by Dr. Chan (940 grams) was well beyond the normal brain weight for an infant of Paulo's age and size. Dr. Smith further testified that the weight of the brain indicated brain edema or swelling, a non-specific response to injury or a disease process. Dr. Smith noted that Dr. Chan had not observed any disease process. According to Dr. Smith, if disease was excluded, brain edema could be caused by trauma to the brain or asphyxia. Asphyxia could be the product of brain injury or some unrelated cause such as strangulation. Dr. Smith opined that a brain injury was the most likely cause of the brain edema. In reaching this conclusion, he referred to the three skull fractures revealed by the x-rays, two of which occurred at least four months before Paulo's death, but one of which occurred some time between a couple of days before Paulo's death and ten minutes before his death. Dr. Smith said that this third fracture could have caused a lethal injury.
[31] In his report, Dr. Smith wrote that the cause of death was "undetermined". In cross-examination, he indicated that he could not identify the cause of death with any certainty. In re-examination, he was asked whether he could exclude any possible causes of death. He replied:
I don't have any evidence of natural disease to explain Paulo's death. If I accept the history that you gave me, that is that he was seemingly well at 7:00 in the morning and dead at 7:30 or in extremis such that he ultimately died a little while afterwards, if that's true - and here once again you understand how frustrating this is because I don't know. There's a whole series of things I don't know whether they're true or not true. If that's true, then I have to regard Paulo's death as being non-accidental in nature unless an alternate credible explanation is given.
[32] Dr. Smith was skilfully cross-examined at trial. No attempt was made to challenge his competency or his objectivity. Specifically, no attempt was made to challenge his medical opinion concerning Paulo's brain weight or the medical conclusions that he drew from that weight. Instead, counsel established that Dr. Smith's opinion depended in large measure on the observations that had been made by Dr. Chan. Using Dr. Smith's expertise, counsel then attempted to demonstrate that Dr. Chan's observations were unreliable and his competence as a paediatric pathologist doubtful.
[33] In cross-examination, Dr. Smith acknowledged that Dr. Chan had made numerous errors during the autopsy. Dr. Smith criticized several aspects of the autopsy, including the basic techniques used by Dr. Chan, his failure to follow certain procedures relating to the examination of the brain, and his absence from the autopsy room when Paulo's skull was first opened for examination. Dr. Smith also agreed that Dr. Chan had failed to observe injuries which Dr. Smith said were obvious (e.g. the fractures to the skull), and had made no observations of symptoms that were commonly associated with cerebral edema. Dr. Smith indicated that these symptoms should have been obvious if they were present at the time of the first autopsy.
[34] During cross-examination, counsel also established that Dr. Smith could not identify a specific cause of death because of the many questions left unresolved by the first autopsy.
[35] The applicant's factum filed on appeal does not raise grounds of appeal that challenge the competency of Dr. Smith as a paediatric pathologist. Three of the grounds of appeal arise out of Dr. Smith's evidence. The first alleges that the trial judge misstated Dr. Smith's evidence as to the cause of death when summarizing his evidence. This allegation has nothing to do with Dr. Smith's competence or objectivity.
[36] The other two grounds of appeal involving Dr. Smith's evidence contend that Dr. Smith erroneously placed an onus on the accused to establish a non-culpable cause of death and that he engaged in prejudicial speculation in describing certain hypothetical scenarios that may have led to Paulo's death. These allegations could suggest a bias on Dr. Smith's part in favour of the Crown. I do not see, however, how evidence that Dr. Smith displayed a Crown bias in other cases could possibly assist in advancing these grounds of appeal. The trial record speaks for itself. Either Dr. Smith improperly placed an onus on the accused or he did not, and either Dr. Smith speculated in a prejudicial manner or he did not. The answer to these questions and their impact on the convictions lies in a review of the trial transcript and not in what Dr. Smith did or did not do in other unrelated cases.
[37] I agree with Crown counsel's submission that it is significant that the applicant has offered no evidence to suggest that any of the opinions given by Dr. Smith in this case are open to legitimate debate. Absent such evidence, I do not see how a reasonable trier of fact could possibly find the opinions given by Dr. Smith in this case to be unreliable based on his conduct in other cases. The medical opinions advanced by Dr. Smith in this case are quite limited. It may be that from a medical perspective they are sufficiently elementary to be beyond dispute. Certainly, the applicant has offered nothing to suggest that Dr. Smith's medical opinions in this case are in any way controversial. The manner in which Dr. Smith chose to express those opinions is a subject of controversy on the appeal, but would not be illuminated by evidence of his conduct in other cases.
[38] I am satisfied that absent any basis upon which to doubt Dr. Smith's opinion in this case, evidence questioning his competence and objectivity in other cases could not possibly affect the verdict in this case and, consequently, could not be received as fresh evidence on appeal.
IV
[39] One additional comment is in order. Counsel made it clear that the applicant would attempt to lead fresh evidence regardless of the outcome of this application. The court was not provided with the proposed fresh evidence or any indication as to the specific nature of that evidence. As this request for production was in aid of a motion to adduce fresh evidence, it would have been helpful for the court to have the proposed fresh evidence or at least some indication as to the form in which the applicant proposed to place fresh evidence before the court. Had I been inclined to order production, I would have required the applicant to produce the fresh evidence that we are told will be tendered regardless of the outcome of this application so that I could assure myself that the fresh evidence application did warrant the production requested.
[40] The application for production is dismissed.
RELEASED: "DD" "APR 23 2004"
"Doherty J.A." "I agree Robert J. Sharpe J.A." "I agree Janet Simmons J.A."
[^1]: Trafford J. subsequently found a breach of s. 11(b) of the Charter and stayed the proceedings: (2003), 176 C.C.C. (3d) 97. This stay is under appeal.
[^2]: There is some suggestion in the correspondence (Crown letter dated November 16, 2001) that the defence did have additional medical opinions at trial. If they did, these opinions were not adduced in evidence. The defence did not call any evidence at trial.
[^3]: This formulation of the disclosure obligation on appeal assumes that none of the material is subject to a privilege claim or a third party claim that could limit the appellant’s right to disclosure.