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

Decision ON ADMISSIBILITY OF MEDICAL OPINION EVIDENCE

Benotto J.

[1] On September 12, 2010, Adriel DaSilva was brought to the Emergency Room at Sick Children's Hospital in Toronto. He was five and a half months old. He had several obvious signs of abuse including bruises, lacerations and injuries to his stomach, buttocks, penis and foot. These injuries were not life-threatening. He did, however, have a life threatening brain injury and subdural haemorrhage. He underwent immediate neurosurgery. He also suffered retinal haemorrhages too numerous to count. Adriel was in the hospital on a ventilator for 9 weeks until his death on November 9, 2010.

[2] Mr. Munoz-Hernandez was living with the baby's mother on September 12, 2010 and is charged with second degree murder.

[3] The defence position is that the non-life-threatening injuries were not caused by the accused and that the brain injury was the result of a single blunt force trauma which occurred accidentally, most likely as a result of a short fall. The Crown alleges that the brain injury was caused by acceleration and deceleration of the baby which was deliberately inflicted.

[4] The issue on this voir dire is whether the specialists who treated Adriel are qualified to give an opinion on the cause of his brain injury and retinal haemorrhages.

[5] The Crown seeks to call the forensic pathologists who conducted the autopsy and the physician from the Suspected Child Abuse and Neglect ("SCAN") unit at Sick Children's Hospital. The Crown gave notice that opinion evidence is also sought from three clinicians who treated Ariel. They are:

• Dr. Scroff, the Neuro-radiologist;

• Dr. Ali, the Paediatric Ophthalmologist; and

• Dr. Taylor, the Paediatric Neurosurgeon.

[6] There is no issue about the admissibility of the evidence with respect to what each doctor saw and did. The issue arises because the Crown seeks to elicit opinion evidence from each doctor concerning the possible causes of the brain injury. The Defence argues that the mechanism of injury is beyond the expertise of the treating physicians. Instead, according to the Defence, the evidence concerning the mechanism of injury should only be given by the forensically trained doctors.

[7] The treating physicians each testified on the voir dire. As a result of the testimony, the Defence conceded that the admissibility of the opinion evidence of Dr. Scroff. Dr. Ali and Dr. Taylor's opinion evidence is in issue.

Involvement of Doctors Taylor and Ali

[8] Adriel was seen in Emergency by the Neurosurgery Fellow, Dr. Ellis. Dr. Ellis immediately called Dr. David Taylor, the staff paediatric neurosurgeon on call and told him to get to the CT Scan room right away. Dr. Taylor arrived within minutes. Dr. Taylor said that Adriel was "really, really sick." His pupils were fixed and dilated which meant that a big part of his brain was not reacting. He appeared not to be breathing above the ventilator. He had a very low heart rate and blood pressure and high inter-cranial pressure ("ICP".) He was, according to Dr. Taylor, "actively dying."

[9] Dr. Taylor performed a "quick once over" to make sure that he was not "bleeding out." He saw that the baby was covered in bruises, had lacerations to the penis, there was red blood on his penis and blood pooled around his anus. He called for someone from SCAN to get there immediately. Dr. Taylor was concerned about saving Adriel's life and wanted SCAN there to document the injuries.

[10] The CT Scan showed acute right side subdural hematoma. It also showed a separate existing brain injury. The subdural hematoma required immediate attention. Dr. Taylor performed an aspiration in the CT Scan room to withdraw blood and alleviate the ICP. The brain injury was to the right hemisphere of the brain and portions of the left frontal lobe. The brain was very swollen. This was, according to Dr. Taylor, a primary brain injury, not secondary to the hematoma.

[11] Adriel was stabilized enough to get him to the Operating Room. The operation performed by Dr. Taylor, and assisted by Dr. Ellis, involved removing the skull, and the "dura." The dura is a leathery wrapping between the brain and the skull. Once that was done, Dr. Taylor could see the brain. A large amount of it was swelling out beyond the skull. He was able to remove 95% of the subdural hematoma.

[12] It was apparent that Adriel suffered injuries to his eyes. Dr. Ali is a paediatric ophthalmologist at the Hospital for Sick Children who is involved in the evaluation of eye trauma. He was called to see Adriel on the following day, Monday, September 13, 2010. Dr. Ali found that Adriel had severe bilateral retinal haemorrhages. The entire extent of the retina in both eyes was involved in haemorrhages. There were too many to count. In his opinion, these haemorrhages were not a result of the ICP because it would not have happened that quickly. In addition, there was schisis which looks like a blister in the eye. This was separate from the haemorrhages and nothing can be done about it. The ischemia did not cause the haemorrhages because the haemorrhages were multi-layered.

Opinion of Doctors Taylor and Ali

[13] Dr. Taylor's opinion is that the cause of Adriel's brain injury was an "acceleration/deceleration" movement of the brain. The extent of his brain injury was so severe that, in his view, it could not have been caused by a blunt force trauma without damage to the skull. Dr. Taylor saw the skull and saw that there was no damage to it. He was certain that a short fall that did not damage the skull could not have caused the brain injury.

[14] Dr. Ali spoke of the causes of the injury to the eyes. He ruled out a bleeding disorder and concluded that the type of injury he saw could be caused by a direct blow to the head strong enough to break the skull or a crushing type injury. A short fall would not, in his view, cause the haemorrhages or the schisis.

The Additional Crown Medical Evidence

[15] Drs. Cory, Kepron and Ramsay testified at the preliminary inquiry and provided reports.

[16] Dr. Cory is a staff paediatrician at the Hospital for Sick Children. She is affiliated with the SCAN unit and was on duty when Adriel was admitted. She is an expert with respect to the forensic aspects of child abuse. She examined Adriel and spoke to the clinicians who treated him. She stated that the lack of external signs of impact makes impact less likely although she did not exclude that possibility. She opined that the brain injury, the subdural haemorrhage and the retinal haemorrhages would be explained by shaking.

[17] Dr. Kepron is a forensic pathologist and a consultant with Sick Children's Hospital. She conducted the autopsy on Adriel on November 10, 2010. She was assisted by Dr. Ramsay, a neuropathology expert. Dr. Kepron testified that the injuries were likely to be the result of non-accidental head injury. The mechanism, in her view, "may involve impact or shaking or both." She opined that the nature of the subdural haemorrhage (predominantly on one side with a midline shift of the brain) was more in keeping with blunt impact trauma. She said further that the head injury was probably secondary to the blunt force trauma and not likely caused by shaking alone.

[18] Dr. Ramsay, from the London Health Sciences Centre, attended the autopsy at Dr. Kepron's request. His opinion was similar to Dr. Kepron's. In his opinion, the retinal haemorrhages and the subdural haemorrhages suggested an inflicted head injury which could have been produced by an impact, although shaking was also an explanation. He stated that the single large haematoma probably came from a torn bridging vein. (Dr. Taylor agreed.)

[19] Although he agreed that shaking could have caused the torn bridging vein, he stated that impact was a better explanation. He acknowledged that this is a controversial area. With respect to the retinal haemorrhaging, he stated that, in his view, it can occur as a secondary effect of brain swelling. He acknowledged that this view was at odds with the ophthalmologists and the paediatricians in the clinical community.

Summary of Divergence in Opinions

[20] The most significant divergence of opinion relates to the mechanism of injury: was the injury to Adriel caused by blunt force trauma or shaking? Dr. Taylor, the neurosurgeon, is of the opinion that shaking, not blunt force trauma was the cause of the injuries. Dr. Ramsay and Dr. Kepron are of the view that blunt force trauma is the more likely cause. Dr. Ali, the ophthalmologist, is of the opinion that the retinal haemorrhages were caused by the head trauma. Dr. Ramsay is of the view that they were a secondary effect of the brain swelling.

Defence Submission

[21] The Defence takes the following positions with respect to the evidence of Dr. Taylor and Dr. Ali:

1. Although qualified to give opinion evidence with their fields of study, they are not qualified to give opinion on forensic issues and the mechanism of injury is a forensic issue.

2. The Crown has forensic evidence from Drs. Cory, Ramsay and Kepron and does not require Drs. Taylor and Ali.

3. The probative value of the proposed evidence would be outweighed by the prejudice to the accused.

[22] The Defence argues that Dr. Taylor and Dr. Ali lack forensic training and thus should not be allowed to opine on the mechanism of injury. According to the Defence, only the forensic neuropathologist can testify about the cause of the injury. The Crown has forensic experts who are qualified to testify and the addition of clinicians would confuse the issues and place too many competing opinions before the jury.

[23] The Defence placed significance on a condition of the brain referred to and relied upon by Dr. Taylor in coming to his conclusion. The condition occurs when one or both of the hemispheres of the brain are black and swollen. It is sometimes referred to as "big black brain." This, according to Dr. Taylor, indicated the extent of the brain damage as indicative of a primary injury. The Defence submits that threshold reliability is not met because none of the other doctors referred to this. Since this evidence is inconsistent with Dr. Cory, Dr. Kepron and Dr. Ramsay, according to the Defence, it does not meet threshold reliability.

Analysis

[24] It is axiomatic that the trial judge must properly define the limits of the proposed expert opinion evidence and the language that the expert is to use. The jurisprudence is clear on this.[^1]

[25] A consideration of the medical opinion evidence in connection with the death of an infant must be informed by the Report of Justice Goudge pursuant to the Inquiry into Pediatric Forensic Pathology in Ontario. The Report is firmly grounded in the considerations set out in R. v. Mohan,[^2] namely relevance, necessity, absence of an exclusionary rule and special knowledge of the subject matter. The Report emphasizes the trial judge's role as gatekeeper to define clearly the subject area about which the proposed witness will offer an opinion and to set the limits of the witness expertise with a rigorous approach to threshold reliability of the evidence. Reliability is embedded in all parts of the Mohan test:

Reliability must therefore be a constant concern of judges in their gatekeeping role, whether the science is classified as novel or not and even though reliability does not have its own separate label when Mohan is reduced to a four-part test for the admissibility of expert evidence.[^3]

[26] The defence submits that threshold reliability has not been met because Drs. Taylor and Ali are not forensically trained. This submission fails for the following reasons:

1. Drs. Taylor and Ali are highly specialized experts speaking within the narrow confines of their expertise.

2. There was a 9 week gap between the time that Drs. Taylor and Ali saw Adriel and the time of the autopsy.

3. There are controversies within the medical community which the jury is entitled to know about.

4. The factors usually used in determining threshold reliability support the admission of the evidence.

5. There was confirmatory evidence by the other experts, including the "big black brain" observation.

Confines of Expertise

[27] Dr. Taylor's expertise as an eminent paediatric neurosurgeon is not in issue. He holds a Ph.D in Laboratory Medicine and Pathobiology from the University of Toronto, extensive postgraduate research and training in paediatric neurosurgery and neurobiology. He is a senior scientist at the Hospital for Sick Children Research Institute, professor of Surgery at the University of Toronto and a staff neurosurgeon at the Hospital for Sick Children. Since there are 5 neurosurgeons of his caliber in Toronto, he estimates that he sees one-fifth of all the infant brain injuries in the metropolitan area.

[28] The contested aspect of Dr. Taylor's evidence regarding Adriel is in relation to the cause of the brain damage. Simply put, it is this: The damage to Adriel's brain could not have been caused by blunt force trauma because the skull was not fractured. Dr. Taylor sees infant brain injuries every day of his working life. He is clearly qualified to give this evidence and it is precisely within the area of his expertise.

[29] Dr. Ali is a highly qualified paediatric ophthalmologist specializing in the evaluation of eye trauma. He is on staff at the Hospital for Sick Children where he is the Director of Clinical Services.

[30] The contested portions of his evidence relates to the cause of the extensive retinal haemorrhages. In his opinion, the retinal haemorrhages were caused by head trauma and not a secondary effect of brain swelling.

[31] Dr. Ali's opinion is precisely within the area of his expertise.

[32] Drs. Taylor and Ali are specialists within their respective fields who routinely see and treat injuries. Indeed, they are more highly specialized within these fields than are some forensic pathologists. Forensic pathologists routinely should and do consult with clinicians. These opinions are important particularly where they are speaking within the precise area of their expertise.

[33] The reliability concern about clinicians testifying usually arises in connection with therapeutic treatments that are not sufficiently reliable to be used in court to identify or exclude the accused as a potential perpetrator.[^4] These issues do not exist here. There is no "technique" or therapy being employed for diagnostic or treatment purposes. Drs. Taylor and Ali are offering an opinion as to the cause of the injuries they observed based on extensive specialized experience, education and training. In addition, they are not speaking outside of their area of expertise.

[34] The importance of the evidence of the clinician was referred to by Justice Goudge in his Report:

I strongly encourage forensic pathologists, particularly in difficult cases to consult with fellow forensic pathologists and other experts in forming their opinion. These specialists might include neuropathologists, pediatric pathologists, neurosurgeons and forensic ondontologists.[^5]

[35] The Court of Appeal of the United Kingdom conducted a thorough review of child homicides in a series of cases.[^6] The cases focused on the cause of injury to a child and highlighted the need to manage and scrutinize the expert evidence. The opening line of the decision of Lord Justice Moses is this:

There are few types of case which arouse greater anxiety and controversy than those in which it is alleged that a baby has died as a result of being shaken.

[36] In full awareness of the controversy, the Court discussed the importance of expert evidence of clinicians:

The fact that an expert is in clinical practice at the time he makes his report is of significance. Clinical practice affords experts the opportunity to maintain and develop their experience. Such experts acquire experience which continues and develops. Their continuing observation, their experience of both the foreseen and the unforeseen, the recognized and the unrecognized, form a powerful basis for their opinion. … [Clinicians] may provide far more reliable source of evidence than that provided by those who have ceased to practise their expertise in a continuing clinical setting … [^7]

[37] It would be unwise to exclude out of hand the evidence of clinicians because they are not forensic pathologists. The irony is that these highly specialized experts may be better qualified to provide this evidence than the more generally trained forensic physicians.

[38] The Defence submits that Drs. Taylor and Ali should be curtailed with respect to the "level of certainty" of their opinions. While the language issue will be dealt with separately, it would be an intrusion on the trial for the court to tell a highly specialized expert to change an honestly held opinion.

[39] Drs. Taylor and Ali will not be testifying as to the cause of death, but rather the likely cause of the injuries that each observed.

The 9 Week Gap

[40] Dr. Taylor saw Adriel the day he was brought to the hospital. He operated on him that day. He saw the skull, he saw his brain. Dr. Ali saw him the next day. Adriel lived on a ventilator for 9 weeks until his death when the pathologist performed the autopsy.

[41] By the time of the autopsy, Adriel's skull had been sent to the bone bank. The retinal haemorrhages would have been resolved.

[42] This places both Dr. Taylor and Dr. Ali in a different and unique position from which to proffer an opinion as to the cause of the injury, based on the observations immediately following the injury.

The Controversies

[43] There are controversies in the medical community with respect to the cause of the retinal haemorrhages. Pediatricians, paediatric ophthalmologists and neurosurgeons are of the view that brain swelling is not the cause. Forensic pathologists think it is.

[44] There is also debate in the medical community about the degree of force necessary to cause serious brain damage in infants. This is exemplified in the evidence of Dr. Ramsay and Dr. Taylor.

[45] These are high-level debates amongst sophisticated scientists. Far from being a reason to exclude the evidence of Dr. Taylor and Dr. Ali, it is a reason to include it. Dr. Ramsay acknowledged that there is a controversy. The fact that controversies exist with respect to expert opinion is not a reason to exclude it[^8]. The jury is entitled to know about it and to have this information.

Factors used to Determine Threshold Reliability

[46] The Report of Justice Goudge set out suggested factors for the trial judge to consider when threshold reliability is determined. They are:

1. The reliability of the witness, including whether the witness is testifying outside his or her expertise;

2. The reliability of the scientific theory or technique on which the opinion draws, including whether it is generally accepted and whether there are meaningful peer review, professional standards, and quality assurance processes;

3. Whether the expert can relate his or her particular opinion in the case to a theory or technique that has been or can be tested, including substitutes for testing that are tailored to the particular discipline;

4. Whether there is serious dispute or uncertainty about the science and, if so, whether the trier of fact will be reliably informed about the existence of that dispute or uncertainty;

5. Whether the expert has adequately considered alternative explanations or interpretation of the data and whether the underlying evidence is available for others to challenge the expert's interpretation;

6. Whether the language that the expert proposes to use to express his or her conclusions is appropriate, given the degree of controversy or certainty in the underlying science; and

7. Whether the expert can express the opinion in a manner such that the trier of fact will be able to reach an independent opinion as to the reliability of the expert's opinion.

[47] As stated, the witness would be testifying within the precise confines of his expertise.

[48] The proposed evidence does not relate to a "theory" or technique that is capable of being tested. Infant brain trauma is not easily amenable to empirical testing.

[49] There is a dispute in the medical community and the jury is entitled to be reliably informed. Dr. Taylor and Dr. Ali are aware of, and have considered, the alternate views.

[50] The "language" issue will be separately dealt with.

[51] Both doctors are capable of expressing the opinion in a manner that will allow the jury to reach an independent decision on reliability.

[52] The proposed evidence is highly probative of the cause of the infant's injuries which, in turn, goes directly to the issue of intent. The prejudicial effect of the evidence for the accused is far outweighed by the probative value.

Confirmatory Evidence

[53] The Defence has argued that the fact that none of the other doctors mentioned "big black brain" means that Dr. Taylor must be on a frolic of his own. However, the other doctors did address this.

[54] Dr. Cory said at p. 4 of her report that a review of the CT scan of September 12, 2010 revealed:

Diffuse severe cerebral edema (brain swelling) characterized by near-complete loss of the cerebral and cerebellar grey-white distinction.

[55] This is the black swollen brain referred to by Dr. Taylor.

[56] At p. 13, Dr. Cory states that Adriel sustained subdural haemorrhage and brain injury. Although she does not use the term "big black brain" she describes it and indicates that the brain injury and the haemorrhage are separate injuries.

[57] At the preliminary inquiry Dr. Cory repeatedly made the distinction between the brain injury and the haemorrhage[^9]. She also spoke about the severity of the brain injury.[^10] Dr. Cory is also consistent with Dr. Taylor on the cause of the injury:

…he's got a really severe brain injury. It would be unusual for a fall to produce that.[^11] The severity of his brain injury would be very rare from things like household falls or common accidental injuries.[^12]

[58] Dr. Ramsay and Dr. Kepron testified at the preliminary inquiry. Although, at that time, the focus was on the subdural haemorrhage, there was confirmatory evidence with respect to Dr. Taylor.

[59] Dr. Ramsay testified that there would have been significant changes to the brain by the time of autopsy because it would have atrophied. He testified, consistent with Dr. Taylor, that there was a primary brain injury and a subdural haemorrhage.[^13]

[60] Dr. Kepron also accepted Dr. Taylor's view that there was a primary brain injury as well as a subdural haemorrhage. Kepron also relied on Dr. Ali. She did not examine the eyes.

[61] This confirmatory evidence establishes threshold reliability.

Prejudice to the Accused

[62] The Defence argues that even if threshold reliability is met, the prejudice outweighs the probative value. The prejudice alleged is the potential confusion of issues, multiplicity of experts and potential contest of credentials.

[63] The proposed evidence does not confuse the issue. Explained, as it was, in a straightforward, clear and understandable way, the evidence adds an important element to the task of the jury. There is no doubt that each of the experts is highly accomplished. There is no potential contest of credentials. Juries can be trusted to follow the evidence and the instructions of the trial judge and to do their job in a professional, dispassionate manner.

[64] To exclude this evidence in a misguided attempt to "streamline" or simplify the evidence would leave important information out of the evidence and thus seriously hamper the jury and do a disservice to the criminal justice system.

Conclusion

[65] The jury will be required to determine the cause of Adriel's brain injury. Was the injury caused by a short fall (which could have been accidental) or by acceleration/deceleration movements (which would have been deliberate?) This determination will involve a consideration of controversial and complex factors. There are also subsidiary issues which will inform the determination. Was the retinal haemorrhage caused by the brain injury or was it a secondary effect of swelling? If the former, what level of force would have been required to cause it? Was the subdural haemorrhage caused by the brain injury or was it a separate injury? If the latter, what level of force would have been required to cause it?

[66] These are highly nuanced issues, in a controversial area of extraordinary sophistication. Where the views of highly respected specialists who treated the baby diverge from those of the forensic pathologist, it is too simplistic to simply exclude the former on the basis that only the forensically trained expert can testify. That approach would usurp the function of the jury and keep vital information from it. The jury is entitled to have all the evidence available in its truth seeking function.

M.L. Benotto J.

Released: June 21, 2013

[^1]: See for example: R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534 and cases therein referred to
[^2]: [1994] 2 S.C.R. 223
[^3]: Report of Justice Goudge, p. 479
[^4]: See R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239 at para 37 and R. v. J.L.J. 2000 SCC 51 at para 35
[^5]: Chapter 16 p. 423
[^6]: R. v. Henderson; R. v. Butler, R. v Oyediran, [2010] EWCA Crim 1269
[^7]: Para. 208
[^8]: R. v. Abbey, para. 146
[^9]: June 25, 2012 pp. 155, June 26, 2012 pp. 90, 92 97, 142
[^10]: June 25, 2012 p. 110
[^11]: June 25, 2012 p. 153
[^12]: June 26, 2012 p. 98
[^13]: P. 36