ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIM J(S) 555/13
DATE: 2015-07-31
BETWEEN:
HER MAJESTY THE QUEEN
Andrea Esson and Jill Prenger for Her Majesty the Queen
- and -
NANDINI JHA
Dirk Derstine and Sharon Jeethan, Counsel for Ms. Jha
HEARD: March 23 & 24, 2015
Ruling on Expert Evidence from Kinesiologist
PUBLICATION BAN
An order has been made prohibiting the publication of the names of any surviving children of Nandini and Saroj Jha in any publication related to this criminal case.
Baltman J.
Introduction
[1] In September 2011 three year old Niyati Jha sustained a massive brain injury as a result of a blunt force trauma to her skull. She was admitted to the Sick Children’s Hospital in Toronto in a coma and died shortly thereafter.
[2] Her mother, Nandini Jha, was charged with second degree murder. The Crown alleges that she beat her daughter to death.
[3] The trial proceeded before a jury. Part way through the Crown’s case, the defence sought to call Dr. Laurence Holt, a kinesiologist, to testify as a “forensic kinesiologist” on the issue of “whether the fatal injuries sustained by Niyati resulted from a series of accidental falls”. On March 25, 2015 I dismissed the application, with reasons to follow. These are my reasons.
Factual Allegations
[4] The Jha family moved to Canada from India in 2010. Mr. Jha worked full time and Mrs. Jha, the accused, managed the house and looked after the children. Niyati’s older sister, S.J.[^1], was attending school full time by the time of this incident.
[5] Mr. Jha testified that when he arrived home from work on August 17, 2011, the accused told him that a bookcase had fallen on Niyati. At that point Niyati was asleep but when he saw her the next morning one side of her face was black and blue. Although she was behaving normally and did not complain
of pain, he and his wife took her to a walk in clinic. The attending physician did not observe anything alarming. According to Mr. Jha, on that evening and in the days following, Niyati behaved normally and did not complain of pain.
[6] On September 20, 2011 the accused telephoned Mr. Jha at work and told him she could not wake Niyati. He had seen her that morning before he left for work and she seemed normal. Mr. Jha came home and found Niyati asleep. He could not rouse her and so they took her to a walk in clinic. It was quickly apparent to the attending physician that she was unconscious and suffering from a serious head injury. She was rushed by ambulance to Trillium Hospital in Brampton and later transferred to Sick Children’s Hospital in Toronto. She was declared brain dead the next day, two days shy of her 4th birthday.
[7] When questioned by first responders and attending physicians as to what had preceded Niyati’s collapse, the accused had no explanation other than to refer to the bookcase that allegedly fell on Niyati one month earlier.
[8] Dr. Charis Kepron, the pathologist who performed the autopsy, found that Niyati had suffered repetitive head trauma on at least two occasions, causing scalp bruising, skull fractures on both sides of her head, subdural hemorrhage, and brain damage. Niyati also had a healing fracture of one rib in her back
[9] Dr. Kepron also identified many other bruises, scars and fractures on Niyati’s body. In particular she noted both recent and healing multiple bruising on the upper arms and thighs, and healing fractures of the 11th rib and the 2nd thoracic vertebrae, all of which were uncommon injuries in a young child.
[10] Dr. David Ramsay, a neuropathologist who reviewed the imaging and post mortem results and examined some of Niyati’s tissue samples, agreed with Dr. Kepron’s findings. He testified that “significant and substantial force” would have been required to cause the older head injuries. That force would have been recognized as potentially harmful to Niyati by anyone observing it. He thought it strange that a child could sustain fractures of this severity and not require hospital care.
[11] He also thought the recent head injury was both severe and inevitably fatal. Although he could not say whether that injury resulted from a fall or a blow, it resulted in such extensive brain swelling that no medical treatment, no matter how rapid, could have saved her.
[12] Dr. Emma Cory, a pediatrician at the Suspected Child Abuse and Neglect Unit at Sick Children’s Hospital in Toronto, testified that given the nature, number and pattern of injuries suffered by Niyati, it was unlikely they resulted from the ordinary activities of childhood. She testified that the brain and skull injuries suffered by Niyati are typically seen only in cases of car accidents and falls from several stories.
[13] Critically for this trial, it was virtually unchallenged that the accused had exclusive opportunity to inflict the injuries sustained by Niyati. She was Niyati’s primary caregiver and no other person was ever alone with Niyati.
The Disputed Evidence
[14] Dr. Holt submitted a report in which he purported to examine the circumstances surrounding Niyati’s death from a “movement science perspective.” The report consists of the following:
a) A review of numerous accidents that Niyati allegedly sustained in India;
b) Dr. Holt’s conclusion that as a result of those accidents Niyati “possibly” sustained one or more traumatic brain injuries and skull fractures;
c) His view that the traumatic brain injuries in turn created a “congenital insensitivity to pain”, which “explains” her high risk behaviour and many ongoing accidents;
d) A review of the many further accidents that Niyati sustained in Canada, including the fallen bookcase, which “resulted in major head trauma”, as well as fractures of the 11th rib and the 2nd thoracic vertebrae ;
e) Dr. Holt’s opinion that there were numerous events in the weeks leading up to Niyati’s death that could have caused the majority of her bruises and abrasions.
f) His ultimate conclusion that her fragile healing skull resulting from the bookcase incident, coupled with two further falls within the few days preceding her death, triggered her final collapse.
[15] In sum, Dr. Holt believes her death can be explained by a series of accidental events that began in India and continued throughout her remaining years in Canada. The original injuries caused her to adopt behaviours that exposed her to further harmful events, with the bookcase fall “bringing about the final culmination of injuries” that led to her death.
Legal Framework
[16] The relevant legal framework is not in dispute. Both counsel referred to our Court of Appeal’s decision in R. v. Abbey, 2009 ONCA 624, where Doherty J.A. reformulated the criterion from R. v. Mohan 1994 80 (SCC), [1994] 2 S.C.R. 9 into a two-step process. In step one, the judge considers the following four preconditions to admissibility:
• The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;
• The witness must be qualified to give the opinion;
• The proposed opinion must not run afoul of any exclusionary rule; and
• The proposed opinion must be logically relevant to a material issue, i.e. it tends to make the existence or non-existence of a fact more or less likely.
[17] Provided the proposed evidence satisfies those preconditions, the court moves into the second “gatekeeper” phase, where the judge performs a cost-benefit analysis, deciding whether the probative value of the evidence outweighs its prejudice. At this stage the trial judge considers the legal relevance of the proposed evidence, namely that it is “sufficiently probative” of a fact in issue to justify its admission.
[18] In assessing probative value, one must consider the reliability of the proposed evidence, taking into account the witness’ expertise, methodology and impartiality. However, the trial judge is deciding “only whether the evidence is worthy of being heard by the jury and not the ultimate question of whether the evidence should be accepted and acted upon”: Abbey, paras. 87-88.
Analysis
[19] The starting place in this analysis is that our Court of Appeal has already rejected Dr. Holt as an expert, on two grounds: first, he is not properly qualified, and second, his proposed evidence is based upon a novel scientific theory. In R. v. Chalmers, [2009] O.J. No. 1254 (C.A.), at paras. 77-107, Blair J. denied a fresh evidence application by the defence based upon the opinion of Dr. Holt that the deceased’s multiple skull fractures were caused by a horse riding accident rather than an assault by the accused. Significantly, the Court stated that such evidence was not admissible “even if it had been tendered at trial”: para. 69.
[20] Justice Blair’s decision focused on two defects of the proposed evidence: first, Dr. Holt’s opinion was based on a novel scientific theory, as “forensic kinesiology” was not a recognized sub-discipline of kinesiology, despite attempts by Dr. Holt to have it proclaimed as such. Second, Dr. Holt lacked special knowledge in the area in dispute, namely equestrian safety.
[21] In my view both of those concerns persist today. Dealing first with Dr. Holt’s qualifications, as Blair J. noted he is unquestionably qualified as a teacher and practitioner of human kinesiology. He also appears to have developed some specialized knowledge in the biomechanics of human sport and exercise activities. But this case is not about an injured athlete or the merits of a particular exercise program. Rather it is about whether a child died as a result of an accident or at the hands of her mother.
[22] Although he has significant experience with adult athletes and their injuries, Dr. Holt has no expertise in the movement patterns of young children or their typical injuries. He has no training or experience in pathology, pediatrics, brain injuries or even child development. Other than this case he has never been retained to determine whether a child’s injuries were inflicted or sustained by accident.
[23] Of particular concern in this case, he also has no expertise in the area of childhood falls or head injuries. Instead he relied on the literature of those who do, reading numerous articles by pathologists and pediatricians. A witness should not be qualified as an expert simply because he has reviewed the medical literature in an area; in R. v. Mathisen, 2008 ONCA 747, at para. 126, our Court of Appeal upheld the trial judge’s decision not to qualify an expert witness on that basis. The trial judge wrote:
In my opinion, it is inappropriate to find a witness to be a properly qualified expert where the source of the proposed expertise comes from reviewing literature – albeit with a facility that most of us would not have – in respect of a subject matter that is outside the field of that witnesses’ [sic] education and training.
[24] As the Court pointed out, were it otherwise courts would be obliged to qualify as experts persons who could not offer real opinions of their own on any given subject, but merely relied on what they had read.
[25] Second, it appears that the concept of “forensic kinesiology” has not advanced beyond what was presented to the Court of Appeal in 2009. Then, and now, it is not recognized outside of a single publication (which Dr. Holt co-authored) in an American medical journal where the concept was advocated. While kinesiology is now a regulated health profession within Ontario, there is still no program in forensic kinesiology anywhere in the world. No recognized standards. No certifying body. And no peers to evaluate completed work. In other words, nothing beyond Dr. Holt’s proposal for the creation of such a field.
[26] Dr. Holt candidly acknowledged that for forensic kinesiology to even come into existence, there first needs to be a rigorous curriculum at a recognized university which would include not only the standard subjects in any accredited kinesiology program but also education in law and medicine, particularly pathology, at a minimum. Until that happens his attempt for such recognition is, by his own admission, premature. As he put it, “I am at a large disadvantage getting involved…I am a novice.”
[27] In the meanwhile, there is another troubling aspect to Dr. Holt’s purported credentials, namely the manner in which he misstated his qualifications in his curriculum vitae. On the final page of his C.V. he stated:
Qualified as an expert on three occasions. Once in the supreme court [sic] of Nova Scotia (Peter Stewart). Twice in the provincial court [sic] (Kentville assault case), Preliminary Inquiry (Terry Dean Allen).
[28] That is hardly accurate. He was “qualified” in the Stewart case to the extent that he was permitted to testify. However, that was a judge alone trial – where the trier of fact is less likely to be improperly influenced by faulty science – and the trial judge was extremely critical of both Dr. Holt’s expertise and his methodology. She expressly rejected his evidence whenever it conflicted with that of other experts. Her approach was approved of on appeal: R. v. Stewart, 2003 NSCA 150.
[29] In the “Kentville” matter Dr. Holt was not qualified at all. All he did was submit a report. The matter never proceeded to trial.
[30] As for the “Allen” case, it didn’t go much further. Dr. Holt testified at the preliminary hearing (for the defence), but after his qualifications were challenged he was not permitted to testify at the trial.
[31] In sum, out of the three cases he identified, Dr. Holt was not qualified on two of them and was received very poorly on the third. Dr. Holt agreed that in light of those outcomes, the relevant portion of his C.V. should be “restated”. That puts it mildly. If the court cannot rely on the proposed expert to accurately state something as basic as his qualifications, how can he be trusted to give an honest opinion about the difficult matters in issue?[^2]
[32] Given that Dr. Holt’s opinion fails to meet the Mohan/Abbey preconditions for admissibility, it is not necessary for me to engage in a cost-benefit analysis. However, in case I am wrong in my assessment under the first prong, I will comment briefly on the second prong, particularly on the probative value of Dr. Holt’s report. In this case, I find it has minimal probative value, for at least two reasons.
[33] First, as Dr. Holt conceded, his conclusions depend greatly on the strength of the underlying factual evidence from the witnesses who purported to observe Niyati’s earlier falls. In this case, such evidence was, according to him, “very limited”. He continually asked for further details but none was provided, forcing him to draw conclusions based on sketchy, anecdotal information supplied by family members, with little objective data.
[34] Second, Dr. Holt admitted that he set out with the goal of demonstrating that Niyati’s life ended through a series of accidental injuries. He interpreted the evidence through that lens and selected medical literature that supported that view. In other words, he approached this case as an advocate, rather than with the open minded perspective one expects from a true expert.
[35] Finally, the prejudicial impact of this evidence would be high as, unlike the Crown’s medical experts, Dr. Holt presumed to comment definitively on the ultimate issue in the case, namely whether Niyati died by accident or was killed by the accused.
[36] For all those reasons, I concluded that Dr. Holt was not qualified to testify as an expert kinesiologist on the mechanisms that led to Niyati’s death or whether her fatal injuries resulted from a series of accidental falls. The application was therefore dismissed.
Baltman J.
Released: July 31, 2015
COURT FILE NO.: CRIM J(S) 555/13
DATE: 2015-07-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
NANDINI JHA
Ruling on Expert Evidence from Kinesiologist
Baltman J.
Released: July 31, 2015
[^1]: An order has been made prohibiting the publication of the names of any surviving children of Nandini and Saroj Jha in any publication related to this criminal case.
[^2]: In his evidence Dr. Holt also referred to his involvement in the Clayton Johnson appeal, where following a murder conviction of an accused who allegedly pushed his wife down a flight of stairs, he submitted a report (at the behest of the Association for the Wrongly Convicted) illustrating how the fall could have been accidental. While Mr. Johnson was on bail pending appeal, numerous other reports were filed in support of the defence. Ultimately Mr. Johnson was acquitted, but it is unclear what (if any) role Dr. Holt’s report had in the outcome: See R. v. Johnson, [1998] N.S.J. No. 381, para. 11.