ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12500007090000
DATE: 20130621
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RONNY ALEJANDRO MUNOZ HERNANDEZ
Laura Bird and Alex Rourke, for the Crown
Peter Bawden, for the Defendant
RuLING ON THE LANGUAGE OF THE EXPERT WITNESSES
Benotto J.
[1] There are several areas of concern raised by the Defence in connection with the proposed language to be used by the Crown expert witnesses. Some of the issues have been resolved by counsel. Those still in dispute are:
The use of analogies to describe the degree of force necessary to cause injury;
The words used to describe the subdural haemorrhage;
The words used to describe the extent of the bruising;
Whether the Crown can lead evidence concerning the lack of explanation for the injuries;
The description of the injuries to the baby's penis.
Analogies
[2] The Defence has made it clear that it will be argued that the brain injuries were caused by a short accidental fall. Experts have testified about the sort of fall that would be required to cause the injuries suffered by Adriel. They have stated in lay-terms how far the fall would have to be. For example, by indicating the number of stories from a balcony. Dr. Kepron used the phrase: "one storey window." Others have spoken about car crashes, falling objects and so on.
[3] One of the tasks of the trial judge is to help the jury understand scientific evidence. Analogies such as those used during the voir dire are helpful. They assist in the interpretation of evidence in terms that are easily understandable.
[4] More importantly, to the extent that the degree of the fall is a live issue, it is important for the jury to know what distance a baby would have to fall in order to sustain the injury.
Size of the Subdural Hematoma
[5] Every doctor has used the word "massive" to describe the size of the subdural hematoma. The Defence wants that word replaced with "space occupying."
[6] I do not agree. The size of the hematoma is relevant to the origin and cause of the bleeding. The term "massive" is a medical term. It is factually accurate and understandable to the jury.
[7] It is agreed that the degree of force is not equated to the size of the subdural hematoma.
Extent of the Bruising
[8] This baby had bruises all over his body. The defence denies responsibility for the bruises. The experts will not be required to limit the description of the bruises. However, comparisons to other cases which include the phrase "the worst case" that the expert has seen should not be led by the Crown.
Lack of Explanation
[9] The Crown seeks to adduce evidence that there was no information provided to the doctors that would account for the injuries. In addition, the Crown seeks to call Jhon Molina and Jessica DaSilva to testify that the accused did not say that there had been an accident while he was with the baby.
[10] The Defence says that this approach reverses the burden of proof, impacts the right to silence and invites "default diagnosis" reasoning.
[11] There is a distinction, actually discussed in the Goudge Report, between allowing the absence of an explanation to substitute for pathology findings and allowing a pathologist to testify about explanations given. At p. 416 of the Report:
In addition to providing the primary conclusions, the forensic pathologist should outline and evaluate, where applicable, the alternative explanations that are raised by the pathology or by the reported history associated with the individual's death.
[12] Thus, while the Report cautions against default diagnosis reasoning by the pathologist, it contemplates a consideration of the explanations given in the history.
[13] The lack of explanation is part of the history taking function of the hospital and informed the work of the clinicians and the opinion of the forensic pathologists. It is to remain in the reports.
Injury to Penis
[14] Dr. Taylor described the injuries to Adriel's penis as though it had been "chewed." While this reflects an understandable image, it also imports a sexual abuse overtone which is not part of the case. It appears that there were, what resembled bite marks on other parts of Adriel's body. That would be a less inflammatory description and should be used instead of the word "chewed".
M.L. Benotto J.
Released: June 21, 2013