R. v. Vander Wier, 2013 ONSC 7390

CITATION: R. v. Vander Wier, 2013 ONSC 7390

COURT FILE NO.: Crim J. (P.)1604/11

DATE: 20131204

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

P. Scrutton & R. Flumerfelt, for the Crown

• and -

WILL VANDER WIER

H. Black, for Will Vander Wier

HEARD: October 21, 2013

RULING ON PROPOSED EXPERT EVIDENCE

Re: Dr. Allen

COATS J.:

[1] Mr. Will Vander Wier is charged with aggravated assault. It is alleged that on March 27, 2003, Mr. Vander Wier punched Mr. Tran and broke his jaw. The Crown is calling Dr. Allen, an oral maxillofacial surgeon, who diagnosed and treated Mr. Tran's injuries. On the voir dire it became clear to the parties that Dr. Allen has over 40 years of clinical experience in treating fractures.

[2] The Crown seeks to qualify Dr. Allen as an expert in maxillofacial fractures and to illicit opinion evidence as to the diagnosis of mandible injuries, the mechanism of injuries and the direction of force required to cause Mr. Tran’s injuries. The defence submits that Dr. Allen is not qualified to provide expert opinion on causation, direction of force and magnitude of force.

[3] After hearing evidence on his clinical experience, I qualified Dr. Allen as an expert in maxillofacial fractures and allowed him to provide opinion evidence on the diagnosis of mandible injuries and the mechanism and pattern of injuries. In regards to the mechanism of injuries, I permitted Dr. Allen to provide opinion evidence on:

1. what he examines when he treats fractures and whether he looks for the presence of other fractures;

2. the relative strength of the jaw;

3. common injuries he expects to see when treating patients; and

4. the four or five cases where he treated patients who experienced falls.

[4] After careful consideration, I concluded that Dr. Allen is not properly qualified to provide opinion evidence on causation, direction of force or magnitude of force in relation to jaw fractures for the following reasons.

The Test for the Admissibility of Expert Evidence

[5] Expert evidence is presumptively inadmissible and the party tendering the evidence must establish the admissibility of the evidence on a balance of probabilities: see R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330 at para. 71 leave to appeal refused [2010] S.C.C.A. No. 125. Accordingly, it is for the Crown to establish Dr. Allen’s expertise in the contested areas.

[6] In R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, the Supreme Court of Canada sets out four criteria to determine the admissibility of expert evidence at para. 17:

1. relevance;

2. necessity in assisting the trier of fact;

3. the absence of any exclusionary rule; and

4. properly qualified expert.

[7] There is no dispute that the contested evidence qualifies under the first three criteria. It is the last criterion, a properly qualified expert, which is at issue in this ruling. To be admissible, the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify: see Mohan at para. 27.

[8] Justice Doherty in Abbey identifies a two-step process for determining admissibility at paras. 76 and 78:

76 Using these criteria, I suggest a two-step process for determining admissibility. First, the party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. For example, that party must show that the proposed witness is qualified to give the relevant opinion. Second, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This "gatekeeper" component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence. [Citations omitted.]

78 It is helpful to distinguish between what I describe as the preconditions to admissibility of expert opinion evidence and the performance of the "gatekeeper" function because the two are very different. The inquiry into compliance with the preconditions to admissibility is a rules-based analysis that will yield "yes" or "no" answers. Evidence that does not meet all of the preconditions to admissibility must be excluded and the trial judge need not address the more difficult and subtle considerations that arise in the "gatekeeper" phase of the admissibility inquiry.

[9] At the first phase, Justice Doherty sets out four preconditions to admissibility that must be established at para. 80:

1. the proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;

2. the witness must be qualified to give the opinion;

3. the proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and

4. the proposed opinion must be logically relevant to a material issue

[10] At the second phase, the gatekeeper stage, Justice Doherty goes on to discuss the “cost” side of the analysis at para. 90:

90 The "cost" side of the ledger addresses the various risks inherent in the admissibility of expert opinion evidence, described succinctly by Binnie J. in J.-L.J. at para. 47 as "consumption of time, prejudice and confusion". Clearly, the most important risk is the danger that a jury will be unable to make an effective and critical assessment of the evidence. The complexity of the material underlying the opinion, the expert's impressive credentials, the impenetrable jargon in which the opinion is wrapped and the cross-examiner's inability to expose the opinion's shortcomings may prevent an effective evaluation of the evidence by the jury. There is a risk that a jury faced with a well presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury: J.-L.J. at para. 25.

[11] Sopinka J. in Mohan explains that experts must not be permitted to usurp the functions of the trier of fact: see para. 24. The Court states at para. 28 “The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle.”

[12] Further, the Supreme Court of Canada in R. v. J.J., 2000 SCC 51, [2000] 2 S.C.R. 600 at para. 28 states: “The admissibility of the expert evidence should be scrutinized at the time it is proferred, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.”

Is Dr. Allen a Properly Qualified Expert?

[13] The admissibility of an expert’s evidence is a case-specific determination. In R. v. Pham, 2013 ONSC 4903, Durno J. at para. 31 provides a non-exhaustive list of factors to assist in determining whether a tendered expert witness is qualified:

• The manner in which the witness acquired the special skill and knowledge upon which the application is based;
• The witness' formal education (i.e. degrees or certificates);
• The witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons);
• The witness' membership and participation in professional associations related to his or her proposed evidence;
• Whether the witness has attended additional courses or seminars related to the areas of evidence in dispute;
• The witness' experience in the proposed area(s);
• Whether the witness has taught or written in the proposed area(s);
• Whether, after achieving a level of expertise, the witness has kept up with the literature in the field;
• 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;
• Whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and
• Whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence.

[14] In determining the admissibility of the contested evidence, I have considered the authorities relied upon by counsel: see Abbey; Mohan; JJ; R. v. Bedford (2000), 2000 2487 (ON CA), 143 C.C.C. (3d) 311 (Ont. C.A.); Karakachian v. Canada (Minister of Citizenship and Immigration), 2009 FC 948, [2009] F.C.J. No. 1463; Jahazi v. Canada (Minister of Citizenship and Immigration) 2010 FC 242, [2010] F.C.J. No. 271; R. v. Balen, 2012 ONSC 2209, 2012 CarswellOnt 4259; R. v. K.(A.) (1999) 1999 3793 (ON CA), 137 C.C.C. (3d) 225 (Ont. C.A.); R. v. Johnston, 2010 ABCA 230, [2010] A.J. No. 833 (C.A.); R. v. Thomas (2006), C.C.C. (3d) 86, [2006] O.J. No. 153 (Sup. Ct.); R. v. Burns, [1994] S.C.R. 656, (2009) 1994 127 (SCC), 89 C.C.C. (3d) 193; R. v. K. (A.) (1999), 137 C.C.C. (3d) 225 (Ont. C.A.) and R. v. Bryan (2003), 175 C.C.C. (3d) 285, 2003 24337 (Ont. C.A.). I do not propose to review each of these cases in detail.

Dr. Allen’s Educational Background

[15] Dr. Allen received a Doctor of Dentistry and a Master of Science in Oral Surgery. He completed a two year residency in Oral and Maxillofacial Surgery.

[16] Beyond this, there was no evidence before me that Dr. Allen has any formal training or education on causation, direction or magnitude of force in relation to fractures.

Dr. Allen’s Professional Experience

[17] Dr. Allen was an Advisor in the planning stage of the Dental Service at McMaster Medical Science Centre and Children’s Hospital (MUMC). Dr. Allen was also the Head of Dental Services at the Hamilton General and Henderson Hospitals from 1971 to December 1986, and then on active staff until he retired in October 16, 2009. He testified that he performed administrative tasks within this role.

[18] Dr. Allen was on the Operating Room Committees and Medical Staff Advisory Committee of the Hamilton General and Henderson Hospitals. He was also on the Planning Committee for the Out Patients Department of the new Hamilton General Hospital. Dr. Allen testified that in these committees, much of the work consisted of administration, planning and financial issues.

[19] Dr. Allen was on active staff at MUMC and Chedoke Hospital. He was also on courtesy staff at St. Joseph’s Hospital and the Hamilton Psychiatric Hospital, which is now the mountain division of St. Joseph’s Hospital.

[20] While at the hospital, Dr. Allen was on-call to treat fractures. The emergency room physician would determine whether there was a fracture and then Dr. Allen would be paged to treat the fracture.

[21] From his clinical experience, Dr. Allen testified that causation was irrelevant to him when treating patients. He did not rely on a patient’s account of the cause of their injury. Dr. Allen testified that he had four or five cases where the patients reported they fell and broke their jaw. Dr. Allen also had one case where a person fell who was handcuffed.

[22] Dr. Allen testified that in his work experience he also performed extractions and reductions.

[23] Dr. Allen was also specialty member of the Oral and Maxillofacial Surgeon of the Royal College of Dental Surgeons of Ontario until December 2010. He is also a member in the Ontario Dental Association, the Canadian Dental Association, the Ontario Society of Oral and Maxillofacial Surgeons, the Eastern Great Lakes Head and Neck Oncology Association and ACLS Provider for the Heart and Stroke Foundation of Ontario.

[24] None of Dr. Allen’s experiences in these specified areas, however, qualify him to give the opinion evidence that the Crown seeks to lead with respect to causation, direction or magnitude of force in relation to jaw fractures.

Dr. Allen’s Research, Teaching or Other Academic Experience

[25] Dr. Allen has not done any research or academic writing in the area of causation, direction or magnitude of force of jaw fractures. Since publishing his thesis when he did his masters, Dr. Allen has not published any academic articles. He has attended conferences of the Canadian Society of Oral and Maxillofacial Surgeons.

[26] Dr. Allen was an Assistant Clinical Professor of Surgery at McMaster University Medical School for 31 years. Within this role, Dr. Allen taught medical residents about the interpretation of radiology and how to look for fractures on the x-rays. Dr. Allen did not teach the students about causation, direction or magnitude of force.

Dr. Allen’s Previous Experience As An Expert Witness

[27] Dr. Allen has previously not been qualified as an expert with respect to determining the causation, direction or magnitude of force of fractures. However, Dr. Allen has been previously qualified to give opinion about the origin and the nature of facial injuries by Tulloch J. in 2006.

[28] In the case at bar, the Crown made a different request of qualification, namely, for Dr. Allen to provide expert opinion on the diagnosis of mandible injuries, the mechanism of injuries and the direction of force required to cause Mr. Tran’s injuries. The cross-examination of Dr. Allen in this trial was extensive as he was also cross-examined on three articles he submitted to the court. In this ruling I have also considered the Court of Appeal’s decision in Abbey, which has been released since Tulloch J.’s ruling.

[29] In cross-examination, Dr. Allen testified:

Q. But today you are. You are trying to say X caused B, aren’t you? You’re trying to say this injury was caused by a blow from the side and not from the front, and yet you said you are not the person who’s qualified to give that opinion, are you? Are you, then? Mmm? Doctor? Are you?

Q. Do you understand what I’m asking you, sir? You said....

A. Well, I’m not a forensic....

Q. So, you’re - so, you....

THE COURT: Sorry, he hadn’t finished his answer.

A. Yeah. I’m not a forensic maxillofacial surgeon.

Q. Right. And that means that you cannot say, what? How it was caused. Can you?

A. Okay. It’s just for my own personal benefit, not - not anything else.

Q. So, you - you’ll say - you’re confident in saying for your own personal information, but you would not want a court to rely on it, would you? You would not want a man’s trial to depend on it, would you?

A. No.

Q. Would you?

A. Yeah, I’m....

Q. Doctor? Would you answer the question?

A. Well, I - I already admitted, I’m not a forensic....

MR. BLACK: Thank you, Your Honour. Those are my questions.

[30] Based on the foregoing, it is clear that Dr. Allen has never been qualified to give opinion evidence of the type the Crown now seeks to elicit.

Dr. Allen’s Knowledge of the Literature

[31] Dr. Allen submitted three articles and was cross-examined on them. None of the articles discuss causation, direction or magnitude of force. Two of the articles are not peer reviewed; one of the articles is off of Wikipedia. Dr. Allen relied on one of the articles when discussing magnitude of force but could not identify the source of this article.

[32] Overall, Dr. Allen was unable to discuss the literature relevant to this supposed field of expertise with any greater precision.

Conclusion

[33] Dr. Allen is highly qualified in his field; however, the evidence is clear that Dr. Allen’s expertise is limited to treating fractures and performing extractions and reductions. Dr. Allen does not have the specialized or peculiar knowledge or expertise to determine causation, direction or magnitude for force of jaw fractures.

[34] There is a close and strong connection between Dr. Allen’s opinion on causation, direction and magnitude of force of jaw fractures and the ultimate issue of Mr. Tran’s injuries. Accordingly, I have applied a much more stringent level of scrutiny to the evidence of Dr. Allen. This evidence, if admitted, could usurp the jury's fact-finding role on the ultimate issue in this trial.

[35] Accordingly, I qualified Dr. Allen to provide opinion evidence on the diagnosis of mandible injuries and the mechanism and pattern of injuries primarily because of his clinical experience in treating jaw fractures for over 40 years in addition to his education.

Coats J.

Released: December 4, 2013