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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration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 10 03 COURT FILE No.: 21-45000561 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Martin NGIGI
Before: Justice Cidalia C.G. Faria
Heard on: June 6, July 19, 2023 Oral decision: September 13, 2023 Reasons for Ruling released on: October 3, 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] On October 4, 2022, the Applicant filed an O’Connor application to obtain all the medical records of J.G., a nine-year-old boy with muscular dystrophy. The Crown alleges the Applicant assaulted J.G. and caused bodily harm by breaking his arm on February 2, 2021.
[2] I declined to order the production of all J.G.’s medical records and instead ordered the production to the court of J.G.’s outpatient medical records for November 25, 2020, and January 4, 2021, the two most recent records prior to the date of the allegations at Stage 1 of the proceedings. [2]
[3] The Applicant filed a second amended O’Connor application on January 26, 2023, renewing his request for all of J.G.’s medical records. The amended O’Connor application was also expanded to include J.G.’s school records. The application relied on the opinion of Dr. Ken Berger as an expert in emergency medicine and trauma, neuromuscular conditions, and cognitive functioning.
[4] The Crown and counsel for the complainant conceded Dr. Berger’s qualification as an expert in emergency medicine and trauma given that defendant confirmed that this area of expertise was not relied on for the purpose of the O’Connor application.
[5] Both the Crown and counsel for the complainant opposed the qualification of Dr. Berger as an expert in neuromuscular conditions and cognitive function. The Applicant contested whether counsel for the complainant should be permitted to cross-examine the proposed expert in the Mohan voir dire and the O’Connor application. I ruled she could do so in both proceedings. [4]
[6] Dr. Berger then testified in the Mohan voir dire to determine the issue of qualification. I qualified Dr. Berger as an expert in neuromuscular conditions, but not in cognitive function. [5]
[7] Dr. Berger further testified on neuromuscular conditions for stage 1 of the amended O’Connor application. In addition to his viva voce evidence, he was asked specific questions and provided answers via email. These answers were filed and narrowed the scope of the O’Connor application to all medical and school records going back three years prior to the date of the alleged incident and from the onset of the diagnosis of muscular dystrophy. A list of seven types of documents the medical records are to include was specified by the Applicant.
[8] Submissions were then heard on both the Mohan voir dire and Stage 1 of the amended O’Connor application.
II. ISSUE
[9] There are two issues to be determined:
(a) Mohan Voir Dire: Should the court receive Dr. Berger’s opinion evidence in deciding the amended O’Connor application?
(b) Stage 1 of the amended O’Connor application: Has the Applicant established that the additional records requested are likely relevant to an issue at trial and should be produced to the court for review?
[10] As the parties required a ruling to proceed to the next step, on September 13, 2023, I provided an oral decision with reasons to follow. The short answer to both questions is no. These are my reasons.
III. MOHAN VOIR DIRE
Position of the Parties
[11] The Applicant submits the Mohan test is met, and I should receive Dr. Berger’s opinion evidence because it is both necessary and relevant. First, the Applicant argues that the evidence is necessary because neuromuscular conditions are outside the experience and knowledge of the court. The court needs this information to understand how muscular dystrophy affects bone density, mobility, and the propensity to fall, which “underlies the injuries the Crown is seeking to adduce as evidence at trial” and is thus necessary to understand the “unfolding of events.”
[12] The Applicant also submits this expert opinion evidence is relevant to the “issue of causation” because muscular dystrophy can “affect the force required to cause a fracture”. The Applicant submits that understanding the complainant’s medical condition is required to determine which O’Connor application records are “likely relevant”, such as records pertaining to the complainant’s mobility, risk of fall, and support needed by wheelchair”. These are factors for the court to consider when “determining the unfolding of events, and the mechanism of injury”.
[13] The Crown’s submits the Applicant has not met his onus. Muscular dystrophy's effect on bone density, muscles, and mobility is not relevant to an issue at trial, nor is the propensity or predisposition to fall. Expert evidence is neither necessary nor relevant to the determination of how events unfolded that led to J.G.’s arm being broken.
[14] Counsel for the complainant submits Dr. Berger’s evidence is not logically relevant or necessary to an issue at trial, nor is it free from bias, therefore it does not meet the first stage of the threshold test. In the alternative, if the court does find it passes stage one of the Mohan inquiry, Counsel submits it does not meet the second gatekeeping stage where the court must ensure the benefits of admitting the evidence outweigh the costs.
Legal Principles
[15] Expert evidence is presumptively inadmissible, and the Applicant bears the onus to establish its admissibility on the balance of probabilities. [6]
[16] Pursuant to Mohan, the court must determine whether the evidence is:
a. Relevant to an issue at trial; b. Necessary to determine that issue; c. Offends an exclusionary rule; d. Proffered by a properly qualified expert. [7]
[17] The admissibility inquiry involves two steps. [8] First, the applicant must demonstrate compliance with the pre-conditions to admissibility. It is a rules-based analysis where each question yields a “yes” or “no” answer. If the evidence does not meet all the preconditions to admissibility, I must exclude it. [9]
[18] The Applicant must then get past the second “gate keeper” step, where I exercise judicial discretion to determine if the probative value of the evidence outweighs its prejudicial effect. [10]
[19] Under the first stage of the Mohan test, expert opinion evidence must be threshold relevant, necessary, not offend an exclusionary rule, and be proffered by a properly qualified expert. Relevance refers to basic logical relevance – does it tend to prove or disprove a fact at issue? [11]
[20] For expert opinion evidence to be necessary, it must provide information outside the experience and knowledge of the judge. However, it must not usurp the judge’s role. [12] The necessity criterion asks whether the judge can form a correct judgment about the issue without the assistance of a person with special knowledge. [13] Ensuring necessity is also part of the gatekeeping role. [14]
[21] Standard exclusionary rules apply to the expert evidence considered.
[22] The proposed expert witness must have acquired special or peculiar knowledge through study or experience in respect of the matters on which he/she/they undertakes to testify. [15] A properly qualified expert includes the requirement that the expert be independent and impartial. [16]
[23] The second step is that of a gatekeeping role. Expert opinion on an issue that the trier of fact is fully equipped to decide without that opinion is a “zero” on the benefit side of the cost-benefit scale. Evidence that is essential to understanding and evaluating material evidence will register high on the “benefit” side. Most cases fall in between. [17]
[24] At this stage, the court only decides whether opinion evidence is worthy of being heard, not the ultimate question of whether the evidence should be accepted and acted upon. [18]
[25] When performing the gatekeeper function, I am charged with deciding whether threshold reliability is met. I must determine whether the evidence is sufficiently reliable to merit its consideration. [19]
Analysis & Finding
[26] Pursuant to the materials provided to the court, the central issue at trial will be how J.G.’s arm was broken on February 2, 2021. He is expected to testify that the Applicant applied force to his arm. His ability to recall and recount what occurred will be tested. The reliability and credibility of his account will be, again, pursuant to the materials filed, the key determination to be made.
[27] The court will not receive Dr. Berger’s opinion evidence to decide the first stage of the amended O’Connor application. The Applicant fails to meet his onus on three of the four Mohan factors to consider in the first step of the analysis.
[28] Dr. Berger testified that, to assess J.G.’s functionality and to opine on possible ways J.G.’s arm could have been fractured, he would need to review all of J.G.s medical records, but particularly those of the last three years. This includes records pertaining to the initial diagnosis, the mobility device J.G. uses, the devices that have been recommended he use, his occupational therapy records, the history of his medications, his physiotherapy records since the onset of his diagnosis, his recreational therapy and day therapy records, imaging records including x-rays, bone scans, bone density tests, C.T. or MRI reports, as well as school records.
[29] First, Dr. Berger’s evidence is not relevant. Dr. Berger’s opinion of the status of J.G.’s muscular dystrophy condition, the density of his bones, the type of wheelchair he used, and his propensity and predisposition to fall has no bearing to the court’s determination of whether to accept or reject J.G.’s version of events that force was applied to his arm causing it to fracture.
[30] Second, Dr. Berger’s specialized knowledge of neuromuscular conditions is not necessary to determine the issue of causation, be it whether the Applicant applied force to J.G.’s arm, or if he fell, or any other way that emerges as a possible mechanism of injury.
[31] Even if the court is required to consider if J.G.’s arm fracture could be caused by a fall rather than the application of force, it is an undisputed fact that J.G. is a 9-year-old boy with muscular dystrophy who requires the use of a wheelchair. The court does not need an expert opinion on J.G.’s muscular dystrophy to consider the possibility, probability, or fact that a fall could be the cause of the injury after it hears the totality of evidence at trial.
[32] Finally, an expert’s opinion must be independent and impartial to be admissible. I find that the Applicant also fails on this factor. Both the Crown and Counsel for the complainant frequently had to urge Dr. Berger to respond to the question he was asked. He rambled at times. He also appeared to try and bolster his expertise by adding to his generalized responses “as a result of my education, training and experience”.
[33] Dr. Berger’s familiarity with the specific case was weak. He appeared inadequately prepared to respond to specific questions about the medical records he had reviewed, and the specific observations he made about J.G.’s video/audio statement.
[34] In addition, in several responses Dr. Berger included what could arguably be considered legal opinions about why his medical opinion was “relevant and necessary” to the court’s determination in the O’Connor inquiry. In doing so, he bordered on the role of an advocate and left me concerned about his ability to carry out his primary duty to the court.
[35] Dr. Berger also refused to acknowledge obvious conclusions. One such example was when it was suggested to him that a person who normally uses a wheelchair is at a higher risk to fall when attempting to walk without their wheelchair.
[36] Dr. Berger responded to the question with “No.” He testified he needed to know the strength of J.G.’s bones at the time of the incident and look at J.G.’s safety plan. He needed to know how J.G. self-managed those issues. He needed to know about J.G.’s “insight”. He needed J.G.’s “longitudinal history” such as his day therapy and recreational therapy records. He needed to know what professionals told J.G. about his abilities and what type of wheelchair he used. He testified there are nuances of the therapy that would assist him to opine on the mechanism of injury. That “it is not as simple” as an episodic occurrence, but he needed a full appreciation of J.G.’s condition and how it might relate to the “mechanism of injury”. He testified he had tried to be as narrow as possible with the types of records he required to have a “full appreciation” of J.G.’s condition. I do not accept that all the above information would be required to assess whether a person who normally uses a wheelchair for mobility is more likely to fall than the average person when they try and walk without it.
[37] For these reasons, I find Dr. Berger’s evidence to have demonstrated significant gaps and tendencies to generalize, overreach, and advocate, thereby giving rise to concerns about his independence and impartiality in this case.
[38] As the Applicant fails at the first step of the Mohan inquiry, I need not delve into the second step. Suffice it to say that had I found that the Applicant succeeded at the first step, and Dr. Berger’s evidence was relevant and necessary, even if marginally so, the Applicant would have definitively not passed the second step, because the prejudicial effect of Dr. Berger’s evidence would outweigh its probative value.
[39] Expert opinion on J.G.’s neuromuscular condition of muscular dystrophy on the issues this court must determine is far from essential to the court’s ability to understand and evaluate the trial evidence and how the fracture occurred. It is much closer to the “zero” benefit side of the cost-benefit scale when considering the considerable cost of the intrusion into his private medical records on the cost-benefit scale.
IV. STAGE 1 of O’CONNOR APPLICATION
Position of the Parties
[40] The Applicant submits that the medical records are likely relevant to the determination of the credibility and reliability of J.G.’s version of events. They are also likely relevant to J.G.’s propensity to fall and possible mechanisms of injury.
[41] Regarding the school records, the Applicant submits they are likely relevant to the issue of cognitive impairments observed by educators and accommodations he may need. This may provide information about J.G.’s memory and his ability to understand and communicate concepts and assist the court in determining his capacity to testify as a witness. The Applicant again referred to a comment the interviewing officer made that J.G. has a cognitive delay and added that Dr. Berger also made the same observation.
[42] The Crown’s position is that there is no evidence adduced to show that J.G. is suffering from cognitive impairment or mental illness at the time of the allegations. Dr. Berger was not qualified as an expert in cognitive impairment, and the court has already ruled on the issue.
[43] Counsel for the J.G. submitted the Applicant has not established case-specific evidence to support the production of her client’s medical records other than the subset already determined to be likely relevant at step one. There is no articulation of an alternative version of events to create a factual foundation for the further production of medical records. They submit that the Applicant appears to be on a “fishing expedition to obtain voluminous longitudinal medical records that can be provided to a defence expert to assist in the formulation of an as-yet-unknown defence theory.”
[44] Furthermore, Counsel submitted the Applicant has not established case-specific evidence to support J.G.’s school records, whether they show J.G. was receiving educational accommodations for his physical disabilities or not, are relevant to any issue at this trial.
Legal Principles
[45] The applicable legal principles and procedures are provided in O’Connor and were outlined in the first Ruling in this matter released on December 30, 2022, at paragraphs 16-23: R. v. Ngigi, 2022 ONCJ 666.
[46] Briefly, once the Applicant secures the production of the records sought from a third party via subpoena, provides notice to those with an interest in their confidentiality, files a formal written application supported by an affidavit setting out the specific grounds of productions, the Applicant then bears the onus in the two-step analysis that follows.
[47] The Applicant must show the information in the records is “likely relevant” to an issue at trial or the competence of the subject of the records to testify. This means there must be a reasonable possibility the records are logically probative of an issue at trial, or the competence of a witness to testify, and may assist the Applicant in the exercise of their right to full answer and defence. If this threshold is not met, the application is dismissed.
[48] If the threshold is met, then the records are produced for the court to review. Having reviewed the records, the court must then determine whether, and to what extent, the records should be produced to the Applicant. The analysis must balance competing interests and weigh the salutary effects of ordering records produced and the harmful effects if they are produced. The factors to consider are:
- The extent to which the record is necessary for the Applicant to make full answer and defence.
- The probative value of the record in question.
- The nature and extent of the reasonable expectation of privacy vested in that record.
- Whether production of the record would be premised upon any discriminatory belief of bias.
- The potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question. [20]
Analysis & Finding
[49] The Applicant argues that medical records will assist the court to determine the credibility and reliability of J.G.’s account, the unfolding of the narrative, the mechanism of injury, and any potential discrepancies in J.G.’s statements.
[50] The Applicant alleges there are inconsistencies in the statement J.G. made to the police about how his arm was fractured. These purported inconsistencies are par for the course when a court reviews, evaluates, and makes findings of credibility and reliability, particularly in the context of receiving evidence from a child. Knowing the "age of diagnosis, the progression of the disease, the mobility of the complainant, or the mobility assistive devices required" is not necessary for the court to make these credibility and reliability findings.
[51] This is particularly the case when the facts which are required to understand the alleged inconsistencies, such as the fact that the complainant is a nine-year-old with muscular dystrophy who used a wheelchair as a mobility device, are not disputed.
[52] Any further medical records, other than those already ordered disclosed, are not likely relevant to an issue at trial, and are not necessary for the Applicant to exercise his right to full answer and defence, as they are not probative of an issue in dispute.
[53] Therefore, the Applicant does not pass the first step of the analysis, nor would the Applicant pass the second step. There is a significant expectation of privacy vested in medical records, and a substantial intrusion on J.G.’s dignity, privacy, and security of person would occur if they were produced.
[54] Turning to the school records that the Applicant requests be produced to the court, in my first Ruling on the first O’Connor application, at paragraph 39, I found there was no evidence that J.G. has any cognitive disorder or cognitive disfunction.
[55] The interviewing officer’s opinion of J.G.’s responses to be “delayed” in the prosecution summary is simply a lay opinion. Dr. Berger, who was not qualified as a cognitive function expert, testified he made a similar observation when he watched J.G.’s statement as did Counsel for the Applicant in her original submission.
[56] I will have the opportunity to make these observations of the evidence myself at trial. The court does not need J.G.’s school records to evaluate J.G.’s testimony, his ability to recount events, to communicate, and to respond to questions.
[57] Again, there is no case specific evidence that J.G.’s competence to testify or cognitive ability is impaired,
[58] As a result, the Applicant fails in his request for J.G.’s school records.
V. CONCLUSION
[59] The two issues having been decided in the negative, the application will now proceed to the second stage on September 25, 2023, regarding the records produced to the court on December 30, 2022.
Released: October 3, 2023 Signed: Justice Cidalia C. G. Faria