WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2023 06 05 COURT FILE No.: 21-45000561 Metro North – Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Martin NGIGI
Before Justice Cidalia C.G. Faria Heard on January 27, March 7, 9, May 23, 2023 Oral Reasons on Mohan Voir Dire – Expert Qualifications May 30, 2023 Written Reasons Released June 5, 2023
Counsel: Christopher Tsiligiris........................................................................ counsel for the Crown Laura Remigio..................................................... counsel for the defendant Martin NGIGI Kelley Bryan............................................................................ counsel for complainant J.G.
Faria J.:
I. OVERVIEW
[1] Martin Ngigi is charged with Assault and Assault Bodily Harm. The Crown alleges Mr. Ngigi broke the arm of a 9-year-old boy named J.G. on February 2, 2021, while the boy was in his care. J.G. lives with muscular dystrophy. The Defendant made an O’Connor [1] application for the disclosure of all J.G.’s medical records in possession of his family physician and his treating specialist regarding his muscular dystrophy and cognitive ability. I ruled on stage one of that Application that the medical records of November 25, 2020, and January 4, 2021, the two sets of records just prior to the date of the allegation, be disclosed to the court. [2]
[2] The Defendant then made a second Application for J.G.’s medical records, expanding the request to include school records and an affidavit from Dr. Ken Berger supporting the Application as an expert in emergency medicine and trauma, neuromuscular conditions, and cognitive function.
[3] Dr. Berger’s qualifications were in dispute in the proposed areas of expertise and the parties embarked on a Mohan [3] voir dire. After Dr. Berger testified on March 7, 2023, the parties litigated whether counsel for the complainant should be allowed to cross-examine Dr. Berger on his credentials. I permitted counsel for the complainant to cross-examine the proposed expert in both the Mohan and O’Connor applications. [4]
[4] At the conclusion of the Mohan voir dire on May 23, 2023, the Crown and counsel for the complainant both conceded Dr. Berger is an expert in emergency medicine and trauma. However, both the Crown and counsel for the complainant dispute his expertise in neuromuscular conditions and cognitive function. I provided oral reasons on May 30, 2023, and these are my written reasons.
II. ISSUE
[5] The two issues to be determined are:
(i) Is Dr. Berger a qualified expert in neuromuscular conditions? (ii) Is Dr. Berger a qualified expert in cognitive function?
III. POSITION of the PARTIES
[6] Counsel for the Defendant submits Dr. Berger has specialized knowledge in the areas of neuromuscular conditions and cognitive function via his professional experience as a physician for over 30 years, which included treating patients with muscular dystrophy and assessments of cognitive function. She relied on Marquard [5], Wade [6], and Bell [7] for her position.
[7] The Crown submits Dr. Berger is not an expert in either neuromuscular condition nor cognitive function as he has not treated many such patients in his medical career. He also attended law school, practiced law, and has no experience with cognitive function and muscular dystrophy. He relied on Pham [8]. The Crown had no concerns regarding Dr. Berger’s impartiality.
[8] Counsel for the complainant agrees with the Crown’s position that Dr. Berger is not qualified as an expert in neuromuscular conditions and cognitive function. Counsel for the complainant also argues that he is not qualified, as his affidavit asserts, to opine in 7 other areas, namely: the nature of muscular dystrophy; the impact of muscular dystrophy on bones; the side effects of medication; the mechanism of injury (fracture); the potential causation of injury (fracture); cognitive issues and muscular dystrophy; and capacity to testify.
[9] Counsel for the complainant submits Dr. Berger is not qualified in these areas because he is primarily a family physician who has treated very few patients with muscular dystrophy. He has not studied, specialized, researched, presented, or written on muscular dystrophy and cognitive impairment. In addition, although not submitting that Dr. Berger was biased or impartial per se, counsel did refer to the sometimes unresponsive, indirect, and oppositional tenor in which Dr. Berger testified. She, too, relied on Pham.
IV. EVIDENCE: Dr. Berger
[10] Dr. Ken Berger is a medical doctor and a practising lawyer.
C.V. Academic
[11] Dr. Berger’s CV [9] states he became a medical doctor in 1992 when he graduated from the Faculty of Medicine at the University of Toronto. He went on to complete an Emergency Medicine Fellowship, a Family Medicine Residency, and Core Surgery Training at McGill University until 1996. Dr. Berger attended Osgoode Hall Law School from 2002 until 2007, obtaining a J.D. He was called to the Ontario Bar in 2008.
[12] Between 1996 and 2002 Dr. Berger was primarily a family physician. He also taught Advanced Cardiac Life Support, Emergency Trauma Life Support, and Paediatric Advanced Life Support to physicians, residents, nurses, paramedics, and RTs. He was awarded Diplomat Canadian Academy of Sports Medicine in 1998 as he was a team physician for ice hockey, rugby, and soccer teams. He was also involved with sports medicine for Olympic events, marathons, and the Pan American Games between 1997 and 2007.
C.V. Employment
[13] Dr. Berger was an Entertainment Medical Consultant for 5 years for Austin Agency Health Professionals (1997-2002), a physician for Rogers Communications in Corporate Health, Occupational and Family Medicine and a Medical Consultant for Workplace Safety and Insurance Board for 3 years (2003-2006).
[14] From 1996 to 2019, he was an active staff hospitalist at Sinai Health Systems Bridgepoint Health. He managed disease complexity, complex medicine patients, rehabilitation, complex care, neurological injury disease, pain management in palliative care, and the complex and serious brain injury unit and medical unit for 20 years.
[15] Dr. Berger has also been in Family Medicine at the Toronto East General Hospital since 1996. At one point or another, he was a member of the Education Committee, a Director for Education in the Emergency Department, sat on Emergency Department committees, and organized education for residents, nurse practitioners and paramedics.
[16] From 1998 to present, Dr. Berger has worked as emergency staff at Sunnybrook and Women’s Health Sciences Center as well as Women’s College Hospital [“WCH”], though WCH has not had an active emergency department for some time. He has been courtesy staff at Unity Health Toronto, St. Joseph’s Site, for the same amount of time.
[17] Dr. Berger is part of an Expert Working Group for the World Health Organization, developing international guidelines for physicians on medical causation and confirmation of death and medical certification of death since 2020. His work since 2022 appears to be primarily as an independent contractor credentialed as an expert for the Social Securities Administration for the United States government providing expert medical opinions on issues of medicine, disability and employment related to Social Security Disability listings to Administrative Judges in the United States. He has an active advocacy practise.
[18] Dr. Berger’s CV asserts that since 1998 he has:
assisted both Civil and Criminal lawyers on a variety of medical issues in approximately 20-30 cases and been qualified as an expert witness by the court in many cases that have involved issues related to neurological conditions, the standard of care, capacity, voluntariness, automatism, diminished responsibility, appropriate medical care, rehabilitation, and the consequences of brain injury, trauma, rehabilitation and medical conditions and their impact on matters in dispute in civil and criminal litigation.
[19] None of his listed 10 publications from 1992 to 2013 are related to neuromuscular conditions, or cognitive function, or the connection, if any, between the two.
[20] None of his listed 38 presentations, from 1992 to 2020 are on neuromuscular conditions or cognitive function, or the connection, if any, between the two. He spoke once, in 1998, in the “Neurological Emergencies Lecture Series” for the Toronto East General Hospital.
Experience in Neuromuscular Conditions:
[21] Dr. Berger testified he has worked with neurological disorders and complex care and spent approximately 20 years in emergency medicine in several hospitals where he treated many children with fractures.
[22] Dr. Berger recalled one child patient with muscular dystrophy during his time working in a busy clinic as a family doctor during his first decade as a doctor and testified he has treated over 50 patients with complicated neurological and neuromuscular conditions of which muscular dystrophy is a “relatively rare” subset. He “managed 10 and not more than 20” such patients over his career and attended conferences that included the subject of muscular dystrophy.
[23] He has conducted no clinical trials or specific research on muscular dystrophy but had conducted a literature review in preparation for this case.
Experience in Cognitive Function:
[24] Dr. Berger reviewed the literature to prepare for his testimony. He stated he did “evidence-based research on cognitive issues and muscular dystrophy” and “thinks there is a relationship in my view.” He did not recall having any patients with such a condition, although he has “lots of expertise” in his practice with children and developmental issues and cognitive issues and evaluating children as part of his training, education, and experience.
[25] He testified he has opined in the United States on cognitive issues. In Canada, he has done so twice, once regarding a person with developmental issues’ and whether they had the cognitive capacity to consent to sexual relations, and again regarding a child who had a fall. He also testified he had provided opinions on the mechanism and causation of injury.
[26] Dr. Berger testified that he disagreed that there was a difference between a medical assessment of cognitive function and simply dealing with a patient with diminished cognitive function. He testified “any professional can assess” cognitive function, and that he had received formal education in such assessments during his internship residency and in conferences, as this is “an important area in medicine”. During his medical practice, he testified he or a nurse would conduct cognitive testing, and he would review and interpret the results to determine if intervention or medication is required in the case of cognitive impairment.
Experience as Expert
[27] Dr. Berger testified he had been deemed an “expert” in Canada “4 or 5 times” but could not recall if any of the cases were reported. He testified he was qualified as an “expert” in about “30 criminal and civil cases, though civil cases seem to resolve” when, it seemed, he was referring to having been retained by parties in litigation.
[28] Dr. Berger estimated he had been a qualified expert 60 or 70 times in the United States relating to “complex medical conditions including muscular skeletal conditions” though never for muscular dystrophy specifically.
[29] Dr. Berger has never specifically been qualified as an expert in neuromuscular conditions, cognitive function, or the connection between the two, if any, in Canada.
[30] The Crown and Counsel for the complainant cross-examined Dr. Berger on three reported decisions where he was qualified as an expert:
In R. v. Coates [10] Dr. Berger was “board certified in the areas of emergency medicine and sports medicine and having been responsible for the neurological care unit at Bridgepoint for 23 years”. He was permitted to give opinion evidence regarding the diagnosis and treatment of concussions. During his testimony, Dr. Berger raised the defence of automatism and that Mr. Coates’ acts were “likely” non-volitional. [11] The court accepted Dr. Berger’s opinion that Mr. Coates was concussed but did not accept his “further opinion” that the concussion left him in a state of automatism. [12] The Court found that Dr. Berger’s limited knowledge of the evidential record compromised his opinion. [13]
In R. v. Singh [14] Dr. Berger was qualified to give expert evidence on head injuries and brain trauma. The court in that case, after reviewing the report, had concerns that Dr. Berger’s evidence “was going to be more advocacy than opinion”, but ultimately found Dr. Berger’s oral evidence was helpful. The court accepted his review of the medical records which concluded the patient had sustained a trauma to the head causing a concussion and broken nose.
R. v. Rehnu-Vasanthakumar [15] was a bail review case in Superior Court where Dr. Berger had been qualified as an expert in trauma and rehabilitation by the Justice of the Peace in the decision to release. The Superior Court found Dr. Berger “misapprehended the contents of the hospital records concerning the ulnar nerve injury and the hospital’s recommendations for therapy [16] and did not accept his opinion that the accused’s injuries could not be treated while he was in pre-trial detention.
[31] In each instance, Dr. Berger took issue with a finding or the characterization of his evidence.
V. LEGAL PRINCIPLES and ANALYSIS
[32] As opinion evidence is presumptively inadmissible, the onus is on the party tendering the evidence on a balance of probabilities. [17]
[33] In making its determination as to whether the Applicant has met this burden, the court must determine the exact nature and scope of the proposed opinion evidence. [18] One of the criteria for the Mohan [19] test is whether the expert is properly qualified.
[34] This inquiry is at the first stage and requires “yes” or “no” answers. [20]
[35] In Marquard [21], the Supreme Court stated:
“The only requirement for the admission of expert opinion is that the ‘expert witness possesses special knowledge and experience going beyond the trier of fact’: R. v. Beland [1987] 2 S.C.R. 398 at p. 415. Deficiencies in the expertise go to weight, not admissibility.”
Quoting Sopinka, Lederman and Bryant, the court went on to say:
“The admissibility of [expert] evidence does not depend upon the means by which that skill was acquired. As long as the court is satisfied that the witness is sufficiently experienced in the subject-matter at issue, the court will not be concerned with whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence.
[36] In Wade [22], the Ontario Court of Appeal noted “others were admittedly more qualified to make that assessment”, but concluded that this spoke to the weight rather than the admissibility of the expert’s evidence because the doctor had a “degree of specialized knowledge and experience”.
[37] Though the Applicant relied on Bell [23], that case stands for the proposition that while there may be a more relaxed standard for the Defence on the consideration of necessity, it does not apply to a more relaxed standard on the consideration of qualification.
[38] More helpful to the determination of whether Dr. Berger is a qualified expert in the proffered areas of neuromuscular conditions and cognitive function is Pham [24], wherein Justice Durno lists 11 non-exhaustive factors to consider. They are:
i. The way the witness acquired the special skill and knowledge upon which the application is based. ii. The witness’ formal education (i.e.: degrees or certificates). iii. The witness’ professional qualifications (i.e.: memberships). iv. The witness’ membership and participation in professional associations related to his/her/their proposed evidence. v. Whether the witness has attended additional courses or seminars related to the areas of evidence in dispute. vi. The witness’ experience in the proposed area(s). vii. Whether the witness has taught or written in the proposed area(s). viii. Whether, after achieving a level of expertise, the witness has kept up with the literature in the field. ix. Whether the witness has previously been qualified to give evidence in the proposed area(s) including the number of times and whether the previous evidence was contested. x. Whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why. xi. Whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence, and if so, who might give evidence.
[39] I found Dr. Berger’s CV and testimony to be unimpressive because it was difficult to identify his work related to neuromuscular conditions or cognitive function. However, as stated in Wade, the proffered expert need not be the most qualified; he/she/they need only demonstrate a degree of specialized knowledge and experience beyond that of the trier of fact.
[40] I note that a medical doctor will, on issues of a medical nature, likely always have such knowledge vis-à-vis a trier of fact. The health condition at issue is of a sufficiently specialized medical nature that even a family physician will have specialized knowledge which the trier or fact does not have.
[41] Turning to the specific factors identified in Pham, I note Dr. Berger does not have specialized formal education or membership and participation in professional associations related to his proposed evidence in either area. He has not taught or written in the two proposed areas. He has not been qualified to give evidence in a criminal case in Canada in either area. It is unclear precisely how, and when he has been qualified, before very differently constituted administrative tribunals, in the United States.
[42] As a result, on factors ii, iv, vii, ix, and x, Dr. Berger’s experience does not warrant qualification as an expert in the areas of neuromuscular conditions or cognitive function.
[43] Though neither the Crown nor counsel for the complainant provided any caselaw or legal texts that identified the areas at issue as proper areas for expert evidence, as noted earlier, given their medical nature, I find they are proper areas of specialized knowledge that an expert could opine in a manner that assists a trier of fact on issues to be determined, therefore factor xi is satisfied.
[44] To support the assertion that Dr. Berger has expertise in the two areas that he is proffered to opine, the defence relies on Dr. Berger’s being a family physician (factor iii) with experience treating patients with neuromuscular conditions in a busy clinic between 1996 - 2002. The defence also points to his proficiency in emergency medicine and as a staff hospitalist at Sinai Health Systems Bridgepoint and Toronto East General Hospital for over 20 years, in its totality, (factor i).
[45] Dr. Berger testified he attended conferences that included education on neurological, neuromuscular, and muscular dystrophy conditions (factor v) and conducted a literature review in preparation for this case (factor viii). Specifically, he has treated “about 10, though no more than 20” patients with muscular dystrophy, and over 50 with complex neurological conditions.
[46] Having treated, managed, and engaged in the broader area of complex neurological conditions that include neuromuscular conditions, of which muscular dystrophy is a subset, I conclude that Dr. Berger does have some specialized knowledge that goes beyond that of the trier of fact, and as such is qualified to opine on neuromuscular conditions.
[47] The limitations demonstrated by his lack of formal specialized certification, participation in relevant specialized professional associations, and non-existent experience in clinical research, presentations or writing in muscular dystrophy will likely go to weight and admissibility rather than to his qualification to opine on neuromuscular conditions. Similarly, evidence elicited by the Crown on the recency of Dr. Berger’s experience, or on the nature of Dr. Berger’s current practice, may impact the weight I give his evidence.
[48] Regarding the submissions of impartiality and/or bias, although Dr. Berger testified in an oddly argumentative manner at times, avoided direct answers on occasion, and was sporadically combative with counsel, I find no evidence of impartiality or bias.
[49] Regarding cognitive function, there were several instances in Dr. Berger’s testimony that, when considered alongside the absence of specific education, training, and limited general experience in the area, raise concerns about Dr. Berger’s knowledge in the area.
[50] Dr. Berger testified he had “lots” of experience in his practice evaluating child development and cognitive issues in children, though he did not recall if any of his patients with muscular dystrophy had any such cognitive problems.
[51] Dr. Berger disagreed there is a difference between assessing cognitive function and treating a patient with diminished cognitive function. This statement appears inaccurate on its face. He also testified that “any professional” could test for cognitive function. This response was made in a cavalier and offhand manner.
[52] While testifying in Coates regarding concussions and their treatment, Dr. Berger wandered into the mens rea of the offence and suggested the legal defence of automatism when opining on the patient’s cognitive functionality after a concussion, which the court rejected.
[53] Though he had no professional, clinical, or other experience, after conducting a literature review in preparation for this case, Dr. Berger testified he “thinks” there is a connection between muscular dystrophy and cognitive function.
[54] Overall, Dr. Berger’s CV and evidence of his knowledge of cognitive function were vague, general, and anecdotal regarding very different contexts.
[55] I find that neither Dr. Berger’s education, training, or experience, individually or collectively, satisfies enough of the factors articulated in Pham to warrant the qualification as an expert in cognitive function.
[56] It is of note that the Defendant’s O’Connor Application is for Dr. Berger to testify in the areas of “neuromuscular conditions” and “cognitive function”. Dr. Berger’s affidavit, however, went unnecessarily further as he asserted additional areas of expertise, such as “inpatient and outpatient medicine”, “falls, mechanisms of injury, prevention, treatment of fractures”. [25] In court he also testified on the effect of medication, and medical records as relevant to issues of “recall and communicate evidence”, and “competency to testify.”
[57] Dr. Berger was briefly examined in chief in these areas. Neither Dr. Berger’s CV, nor his evidence, established he is qualified to opine in inpatient and outpatient medicine, falls, mechanisms of injury, prevention, the effect of medications in general, memory/recall, or competency to testify. His evidence was vague and general, and as such insufficient to satisfy me that he had specialized knowledge in these areas warranting the characterization of expertise. I anticipate Dr. Berger may give evidence on how these areas of specialized knowledge are part of, or a subset to, his expertise in neuromuscular conditions. As such, they will be subject to submissions as to whether they are or are not areas of specialty and the appropriate weight the court should give to such evidence.
VI. CONCLUSION
[58] As conceded, Dr. Berger is qualified as an expert in emergency medicine.
i. Is Dr. Berger a qualified expert in neuromuscular conditions?
[59] Yes. With some concerns as to the breadth and depth of Dr. Berger’s expertise in the specific neuromuscular condition of muscular dystrophy, I qualify him as an expert capable of providing an opinion on neuromuscular disorders as requested.
ii. Is Dr. Berger a qualified expert in cognitive function?
[60] No. The evidence does not demonstrate Dr. Berger to have sufficient specialized knowledge in cognitive function to qualify him as an expert.
Released: June 5, 2023 Signed: Justice Cidalia C. G. Faria
Footnotes
[1] R. v. O’Connor, [1995] 4 SCR 411 [O’Connor]. [2] Ruling #1: R. v. Ngigi, 2022 ONCJ 666. Oral reasons given December 9, 2022; written reasons released December 30, 2022. [3] R. v. Mohan, [1994] 2 SCR 9 [Mohan]. [4] Ruling #2: R. v. Ngigi, 2023 ONCJ 447. Oral reasons given March 9, 2023; written reasons released April 18, 2023. [5] R. v. Marquard, [1993] 4 SCR 223 [Marquard]. [6] R. v. Wade, [1994] O.J. No. 543 (O.C.A.) [Wade]. [7] R. v. Bell, [1997] N.W.T.J. No. 18 (C.A.) [Bell]. [8] R. v. Pham, 2013 ONSC 4903 [Pham]. [9] Application Record, Tab 2, Dr. Ken Berger, Curriculum Vitae, undated 2021. [10] R. v. Coates, 2022 ONSC 6218 at para. 286 [Coates]. [11] Ibid at para. 307, 334. [12] Ibid a para. 339. [13] Ibid at para. 341. [14] R. v. Singh, 2018 ONCJ 995 [Singh]. [15] R. v Arthavan Rehnu-Vasanthakumar, 2015 ONSC 2663 [Rehnu-Vasanthakumar]. [16] Ibid at para. 36. [17] R. v. Abbey, 2009 ONCA 624 at para. 71. [18] Ibid at paras. 62-63. [19] Mohan, supra note 3, at para. 17. [20] Abbey, supra note 17, at para. 78. [21] Marquard supra note 5, at para. 35. [22] Wade, supra note 6, at paras. 24-25. [23] Bell, supra note 7, at para. 28. [24] Pham, supra note 8, at para 31. [25] Application Record, Tab 1, Dr. Berger Affidavit dated January 25, 2023, at paragraphs 13, 14, 15, 16, 17.