CITATION: R. v. Biddersingh, 2015 ONSC 6063
COURT FILE NO.: 15-10000564-0000
DATE: 20151001
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EVERTON BIDDERSINGH
Defendant
Mary Humphrey and Anna R. Tenhouse, for the Crown/Respondent
Jennifer Penman and Genevieve McInnes, for the Applicant
HEARD: September 28 – 29, 2015
Application to Exclude Expert Evidence
A.J. O’MARRA J.
[1] The defendant/ applicant, Everton Biddersingh, is charged with the first degree murder of his 17 year old daughter, Melonie Biddersingh in 1994. Melonie’s body was found in a suitcase which had been set on fire. Her remains were partially burned. On autopsy her body was found to weigh 50 lbs. and she had 21 ante-mortem bone fractures. She remained unidentified until a DNA comparison was made with her biological mother in 2012.
[2] The applicant seeks to exclude from evidence any expert opinion that the deceased in this matter could have died from starvation as speculative, as it is premised on an entirely unreliable pre-death weight estimate of the deceased arrived at without any quantifiable scientific basis.
Post-Mortem Evidence and Expert Opinion
[3] Dr. David Chiasson, forensic pathologist conducted the initial post-mortem in 1994. He concluded that cause of death was undetermined. No anatomic or toxicological cause of death was established, however “asphyxia modes of death could not be completely ruled out.” He observed that she was approximately 5’ 2” and had a “very thin body habitus with long slender extremities suggestive of undernourishment”.
[4] In 1995, Dr. Michael Pollanen, forensic pathologist, found diatoms in fluid found in the right maxillary sinus and bone marrow from her right and left femurs. Diatoms naturally occur in bodies of fresh water. He concluded that drowning was either the cause of death or a major contributing factor.
[5] Dr. Chiasson on receiving Dr. Pollanen’s report indicating the presence of diatoms amended his report to the cause of death as “drowning”.
[6] Dr. Stanley Zlotkin, an expert in Pediatrics and Nutrition, on a review of the post-mortem reports and after discussion with Dr. Chiasson as to weight loss resulting from Melonie’s body being partially burned, on a conservative estimate of 10 percent weight loss she would have been approximately 55 lbs., at the time of death. For a girl of 17 years with a height of 5’5.5” +/- 2.8” she was severely malnourished at the time of her death. At the preliminary inquiry he testified that inadequate food intake had been going on for months or years, and she had been in significant pain from the injuries suffered. Experiencing both hunger and pain she would have been weak and incontinent.
[7] At the preliminary inquiry Dr. Pollanen testified as to five major observations from the autopsy results:
She was starved from a prolonged lack of food;
She was injured resulting from blunt force trauma causing 21 fractures;
A pepper was inserted in her vagina;
She inhaled water resulting in drowning, or drowning as a co-factor in her death, or near drowning; and
She had been folded up and placed into a suitcase and set on fire after death.
[8] Dr. Pollanen also testified that a person in a weakened state would be much easier to drown. Even if a person’s mouth and nose were covered in a small amount of water, if the person was too weak to get up drowning could occur.
[9] Both Dr. Chiasson and Dr. Pollanen acknowledged when giving evidence at the preliminary inquiry that the theory of diatoms as a diagnostic of drowning is not without controversy in the scientific community.
Differential Diagnosis - Starvation
[10] On September 13, 2015 just prior to the commencement of the pre-trial applications scheduled on September 16, 2015 the Crown met with Dr. Pollanen to discuss “the differential diagnosis of the cause of death of Melonie Biddersingh if diatoms are reliable indicators of inhalation of water, and if the presence of diatoms are spurious and not reliable indicators of water inhalation.”
[11] Dr. Pollanen indicated hypothetically, if it is assumed diatoms are unreliable then he favoured starvation as the cause of death, heavily influenced by Dr. Zlotkin’s report and analysis of the extent of starvation present. However, his view is that diatoms are reliable and the cause of death is drowning. Dr. Pollanen’s letter of September 14, 2015 outlining the nature of their discussion was provided to defence counsel by the Crown.
The Application
[12] Everton Biddersingh has applied to have excluded the opinion evidence of Dr. Michael Pollanen that starvation is a possible differential diagnosis as to the cause of death of Melonie Biddersingh, as there is no factual basis for his speculation that death could have occurred by starvation in this case. His reliance on the opinion of Dr. Zlotkin is no more than speculation because Dr. Zlotkin’s opinion as to pre-death weight was without any scientific foundation and no more than a speculative guess.
[13] Initially, the defence contended that the Crown had failed to provide proper notice of an expert opinion that would significantly impact the dynamics of the trial by putting forth a new cause of death. Rather than seek an adjournment as a remedy, the defendant objects not only to the opinion evidence of Dr. Pollanen based on the hypothetical but also to the Crown adducing evidence from any of the forensic expert witnesses, specifically Dr. David Chiasson and Dr. Zlotkin as to the estimated pre-burnt weight of Melonie Biddersingh’s body on the basis it is no more than a guess.
Dr. Pollanen’s letters of September 14 and 21, 2015
[14] Let me start by setting out the content of Dr. Pollanen’s letters out outlining the nature of the hypothetical discussion with the Crown and his analysis.
[15] In the letter of September 14, 2015, Dr. Pollanen provided the following analysis:
If diatoms are reliable then there are two inferences:
death was caused by drowning while the air passages were immersed in water, or death ensued after the inhalation of water and was a slower process following removal from water. There are pathological findings to prove the latter.
near drowning occurred but there was survival afterwards and death was caused by something else. The timing of the near drowning cannot be inferred, scientifically. This is possible, but not probable as judged by the lack of any reported cases of this occurring, to my knowledge.
Between these two choices, I favour No. 1. Essentially No. 2 logically leads to same two possibilities as listed below. If diatoms are not reliable, then there are two inferences: 1. Death occurred by starvation in the context of multiple old fractures. This is supported by the report of the Pediatric Gastroenterologist. 2. Death is unexplained or undetermined. Between these two choices, I favour No. 1. Thus, in my view the cause of starvation is drowning. But, if it is not drowning, I would give the cause of death as starvation.
[16] In the letter of September 21, 2015, Dr. Pollanen clarified that his opinion had not changed regarding the cause of death as drowning based on the presence of diatoms. His opinion as to starvation was based on a hypothetical predicated on the assumption that the diatom result was discounted as unreliable. He stated the following:
If we assume that the diatom result is excluded from consideration, then I favour starvation as the cause of death. There are two steps of reasoning that form the basis of my conclusion.
Step 1: Dr. Zlotkin’s report influences me heavily on the severity and duration of the nutritional deprivation. He judges the starvation to be more severe than I had originally appreciated. He is more qualified than me to provide an expert opinion in that domain. I accept his view as authoritative, based on his expertise as a pediatric nutrition expert. My forensic interpretation, based on my expertise as a forensic pathologist, is that the extent of starvation disclosed by his analysis could have cause death. Thus, starvation is “a” (possible) cause of death in this case.
Step 2: Forensic pathologists often use a simple evidence based framework to decide the cause of death. We group cases into one of five hierarchal categories:
Observable evidence of an acute process that is necessarily incompatible with life (e.g. gunshot wound of the head).
Observable evidence of an acute process that could cause death, in the absence of No. 1 (e.g. cocaine toxicity).
Observable evidence of a chronic process that could cause death in the absence of No. 2 (e.g. ischemic heart disease).
No observable evidence of a process in the form of No. 1, 2 or 3; but, historical evidence a possible (e.g. sudden unexpected death in epilepsy) lethal condition that lacks observable evidence.
Undetermined due to a lack of any evidence (skeletal remains with no observable findings or history).
If definite weight is given to Dr. Zlotkin’s opinion (step 1) and the diatoms are removed from consideration (assumption), then this is a class 3 case largely based on exclusionary evidence. Thus, starvation is “the” cause of death.
Thus, in my opinion, death was caused by drowning. Hypothetically, if the diatoms were discounted, I would give the cause of death as starvation, based on Dr. Zlotkin’s analysis and the concept of class 3 evidence.
Late Notice of a New Expert Opinion as to Cause of Death
[17] First, let me deal whether the letter of September 14 of Dr. Pollanen’s opinion based on the hypothetical discussion was late notice of a new expert opinion.
[18] The Crown’s theory based on the anticipated evidence of Elaine Biddersingh, Cleon Biddersingh and Suan Biddersingh, Melonie’s half-sister and the expert evidence as to the condition of her remains is that Everton Biddersingh beat, starved and either drowned or caused Melonie to inhale water prior to her death. One of the causes of death being drowning, drowning while in a weakened state or starvation.
[19] Elaine Biddersingh testified at the preliminary inquiry that Melonie was thin and looked like the starving children of Africa before her death. Everton controlled the food and Melonie appeared malnourished.
[20] Cleon testified that their food was rationed and in the days leading up to Melonie’s death she was “so weak” crawling to the bathroom, and that she was vomiting and incontinent. She was beaten and chained up so she could not leave the apartment, confined in a closet for punishment and made to sleep on a sheet of cardboard.
[21] Her half-sister, Suan said that Melonie looked healthy when she first arrived in Canada and not underweight, however when she saw her in the later years after her brother’s death Dwayne, she looked tired and down. Her weight had changed, she weighed less.
[22] In the preliminary hearing in this matter, Bigelow J. in committing Everton Biddersingh to stand trial to the offence of first degree murder stated the following:
The critical question in this case is did the accused cause the victim’s death both factually and legally.
Dr. Chiasson did state that in his opinion the cause of death was drowning but he based his conclusion of the report of Dr. Pollanen which stated that the presence of diatoms in both the femur and the sinus cavity was “indicative of drowning as a cause of death or major contributing cause of death”. In other words, drowning may not have been the only cause of death. He also indicated that the physical condition of an individual can have impact on their ability to avoid the inhalation of liquids.
In his oral evidence, Dr. Pollanen was asked whether an individual in a weakened state or unconscious who fell into some water could drown and he indicated that this could happen. He also indicated that one would have to consider based on the evidence of inhaled water, the possibility of both drowning and near drowning and he could not exclude that Melonie died due to starvation. (Emphasis added).
A jury is entitled to consider all of the evidence both from experts as well as other witnesses in determining whether they are satisfied with respect to causation and the weight to be attached to that evidence is in their hands. In particular, they are entitled to consider the evidence of Cleon Biddersingh of the physical abuse that Melonie suffered at the hands of her father and her weakened condition prior to her death and to combine that with the medical evidence.
In my view, a reasonable jury properly instructed could find that the accused caused the death of his daughter factually but for the acts of the accused in beating her to such a degree that she suffered 21 fractures and restricting her food to the extent that she was starving she would not have died. I am also of the view a reasonable jury properly instructed could find that the assaults and the starvation were a significant contributing cause of her death and that therefore the Crown has also established legal causation.
[23] Counsel for the defendant contends that Bigelow J. was simply wrong when he stated that Dr. Pollanen indicated that he could not exclude that Melonie died due to starvation. In his evidence, Dr. Pollanen indicated that in reading the other reports and looking at the pictures of her remains she was “malnourished, starved, injured”.
[24] In cross-examination at the preliminary he was asked the following with respect to the issue of starvation:
Q: …now, am I correct that in cases of…where malnutrition or starvation is the cause of death that well, typically, what you are seeing is a complication from starvation being the cause of death like pneumonia, an infection because of an inability to fight something, I don’t know, I’m, am I generally…on the right track there?
A: often that’s the case, but not always. Sometimes…well, I’ll give you three variations. So severe malnutrition, and they simply die. They just don’t have enough protein, enough energy, possibly enough fluid, and they don’t, they just fade away and die. That’s one variation. And we see that, to be frank, most frequently in neglected children or neglected infants. They may not get a terminal infection; they just may simply die. So that does happen. Now, the malnutrition tends to be extreme in those cases.
Q: So a lot, a certain amount more than what you see here?
A: I would say so, but not to the exclusion of that as a possibility, I would say.
Then Dr. Pollanen described the other two variations of starvation where a person is in a weakened state and succumbs to an infection or where malnutrition is secondary to another process such as an underlying disease like cancer which kills the person but becomes malnourished.
[25] In his power point presentation to the court, Dr. Pollanen observed that in this instance Melonie’s body as a result of the wasted appearance and minimal fat stores was “markedly malnourished”. No disease was found to account for the malnourished state. He note in his slide: “Therefore, malnutrition was due to starvation (lack of adequate oral intake of food).
[26] In my view, Dr. Pollanen, although clearly of the opinion that drowning was the cause of death or a major contributing factor, he did not exclude the possibility of starvation being the cause of death in his evidence. Bigelow J. was not incorrect when he stated “he could not exclude that Melonie died due to starvation”, contrary to the submission of defence counsel. Further, it is consistent with the theory advanced by the Crown.
[27] I note as well that defence did not bring a certiorari application to contest the committal on the basis cited by Justice Bigelow. I fail to see how the defence has been taken by surprise.
Late Notice
[28] Even if the opinion of Dr. Pollanen based on the hypothetical put to him is considered new in the sense the defendant has not prepared to address it, there is ample time without an adjournment for the defence to adjust his trial strategy to accommodate any perceived change in his evidence. Dr. Pollanen is not scheduled to testify on this trial until December 3, 2015, some 72 days, more than two months from the notice.
[29] Any remedy based on late notice in this situation does not include excluding the evidence as sought by the defendant. In Regina v. Horan, 2008 ONCA 589, [2008] O.J. No. 3167 (O.C.A.) at start of the trial the Crown disclosed medical evidence it intended to call. Defence counsel asked for an order precluding the doctor from testifying because of a breach of the Crown’s disclosure obligations and because the accused was in custody he would be prejudiced by an adjournment of the trial. The trial judge declined the adjournment and excluded the evidence. The Crown successfully appealed the trial judge’s decision to exclude medical evidence. Rosenberg J.A. at para. 29 observed in reference to s. 657.3 of the Criminal Code and deficient notice of expert witness’ qualifications, reports or summary of their anticipated opinions there are remedies such as an adjournment, but the provision does not give the trial judge the power to refuse to allow the expert witness to testify.
Failure to meet the Daubert Criteria
[30] The principal objection brought by the defendant on the application is to the Crown leading evidence from any of the experts as to the estimated pre-death weight of Melonie Biddersingh. Defence counsel contends that the basis for Dr. Zlotkin’s view about Melonie’s pre-death weight is based on a speculative estimate by the pathologist as body weight loss caused by her body being burnt. It was based on an unreliable guess as to her pre-burnt height and weight. There is no scientific basis for the estimate.
[31] In Dr. Zlotkin’s report of October 15, 2013 he wrote the following:
The conclusions that I reach pertaining to Melonie Biddersingh’s nutritional status are entirely based on reports and photographs contained within the information that I received.
It is normally expected that an assessment of an individual’s nutritional status is based on five components:
i.) medical history;
ii.) Dietary assessment;
iii.) Anthropometric measurements compared to “normal” standards;
iv.) Physical examination;
v.) Laboratory evaluation.
Medical History: There is no medical history available on Melonie Biddersingh.
Dietary Assessment: There was no information available to assess dietary intake. From the autopsy report the stomach contained: “about 100 ml of yellow/green liquid with fine pale yellow glandular food particles and other fragments of partially digested food”.
Anthropometric Measurements: Anthropometric data was available from the original autopsy (September 1994) as well as report from the forensic anthropologist, Dr. Kathy Gruspier, dated December 14, 2004.
From the autopsy, height was estimated as about 5’ 2”, body was in flexed fetal like pose due in part to thermal effects. From examination of the largely complete skeleton, “the individual stood approximately 169.4 cm. plus/minus 7.1 or 5’ 5 ½” +/- 2.8 in life. In interpreting the different height measurements, Dr. Gruspier stated:
“The remains were burned, and the methodology introduces sufficient errors so that the length at post-mortem and modified remains cannot be translated directly as representing living height. This estimate of stature was derived from the fibula and can be considered more demonstrative of living height”.
Her length at 169.4 cm. plus/minus 7.1 was between the 15-50 percentile for age on CDC (Centre for Disease Control, Atlanta, Georgia, U.S.A.) reference standard charts. This is a normal range.
Weight 50 lbs. at the time of autopsy.
Ms. Biddersingh’s weight at 50 lbs. was the typical weight of an average 8 year old (50th percentile). Her age at the time the weight was taken was 17.1 years. There is no “rule of thumb” for estimating the impact of burns on loss of body tissue (weight), but from the photographs supplied, I have estimated that the burns would account for no more than 10% of her body weight. Dr. Chiasson called this a conservative estimate. It would be no more than 10%.
Based on this weight and height at the time of her death, her BMI (body mass index) would have been 9.0 kg/m squared. This value, 9.0, is defined as “severely underweight” according to World Health Organization Reference Standards: severely underweight is defined by the WHO as less than 16.5. Normal is 18.5 to 25.
[32] Dr. Zlotkin takes note as well in the final report of Dr. Chiasson: “Post-mortem examination revealed very thin body habitus suggestive of chronic malnourishment…no natural disease process which could account for death was identified”.
[33] Further, Dr. Zlotkin observed, “a typical girl 17 years of age would weigh (on average) 55 kg. (120 lbs.). At the time of the autopsy, the deceased weighed 22.7 kg. (50 lbs.) or about 41.7% of “normal”. Assuming a 10% loss of weight from burns her estimated weight would be 55 lbs. The weight of 55 lbs. is equivalent to the weight of an average 8 year old child. Her length at autopsy was within normal range.”
[34] He concluded his report with the following:
At autopsy her height was within normal range, but her weight was severely abnormal. At an estimated 55 lbs., her weight was the equivalent of an 8 year old while her chronological age was 17.1 years. Her body mass index (BMI) at 9.0 was well below the 1st percentile, meaning that it was grossly abnormal. From the autopsy findings, there is no obvious medical reason for her severe malnutrition. She did not have cancer, heart or kidney disease or any condition associated with malnutrition. The likely explanation for her malnutrition was inadequate food intake. There is no alternative hypothesis to explain the malnutrition and resulting inadequate growth. Given that her weight and BMI were so abnormal (42% of normal); I believe that her inadequate intake of food likely occurred with over months or even years.
[35] With respect to determining pre-burnt body weight to determine Melonie’s Body Mass Index Dr. Zlotkin’s estimated 10-15 % loss. He wrote in an email, October 1, 2013:
My question is related to the weight that was recorded on September 1, 1994 at the time of the autopsy. That weight was 50 lbs. Can you estimate the impact of the fire/heat on the amount of tissue (and thus weight) that would have been lost because of the heat affects. I estimated 10% to 15% but my estimate is not based on either science or experience. Thus, my question to you.
[36] He received a response noted on his email that the estimate could not be more accurate or definitive, but a 10% loss was likely conservative. As he noted in his report, Dr. Chiasson told him that there is no rule of thumb that pathologists would use in cases like this.
[37] At the preliminary inquiry into this matter, on October 21, 2013, Dr. Chiasson was asked about his conservative estimate of weight loss and consultation by Dr. Zlotkin:
Q: …when we’re looking at the 50 lbs. that you’ve noted there in terms of the remains, you were asked a question about how much body tissue would have been lost from the burns and from the burn damage.
A: Yes
Q: And I understand that you estimated something, about 10%
A: We had a discussion about this. He suggested 10%. I said basically, there is no data, there is no data to really assist us in determining you know, comparing a body that is unburned and, you know, the effects of burning. So it’s a, I thought it was a conservative estimate to say that, you know, 10% of the body weight, you know, was burned. It could have been more, but I, there’s no, there’s no, I’m not basing that on any science. There’s clearly tissue lost here, there’s clearly been…the weight at autopsy is less than the weight prior to death. But having said that, how much loss, I speculated, if you will, 10% seemed to be reasonable, but I have no scientific basis to make that judgment.
Q: And just so I understand, the question that you were being asked, and that you were answering was, how much body tissue would have been lost.….And when you were answering that question, tell me specifically what it is you were referring to?
A: Well, there’s, the skin is charred away, there is a lot of skin that has been made lost, if you look at the, as I’m looking at this photograph of the back of the body, there’s clearly tissue loss from the upper left arm, there is that exposure of the bones in the upper, the collarbones, the neck, there’s clearly a loss of tissue. And there would have been a loss of some fluid as well, certainly, in the burned areas. So fluid, you know, the body has got a lot of fluid in it, normally. So there is that element of loss as well, losing fluid. So undoubtedly, there is some loss of weight. It’s the determination of how much loss of weight given this, you know, the experiment that would need to be done was a bunch, a large number of bodies that are not burned, you burn them, you know, you photograph them and say okay, so for this amount of, and you weigh them before and after, and I am unaware that that any data of that sort that would help us in saying okay, how much body have we lost, how much weight have we lost.
Q: So if we can just go back for a second because that’s part of where I want to go when you answered the question to Dr. Zlotkin and said about 10%, I gather what you’re saying is that was really a guess.
A: It’s a guess. He suggested to me 10% and I said that was a reasonable guess.
Q: And you said, I think I saw in the email or correspondence that you had said that that was a conservative estimate. So when you’re saying conservative, you mean it could have been more.
A: Yes, it could have been more.
Q: It could have been 15%.
A: It could have been 15%.
[38] Dr. Chiasson further notes during cross-examination that there was not a lot of extreme burn damage with respect to this body and there were unburned portions. Although he could not give an accurate weight as to what she was beforehand, he stated:
What I can tell you is that this person clearly had her limbs where there is no burn effects, quite strikingly elongated, thin appearing and that’s the comment about the appearance of the body being undernourished related primarily to the appearance of the body in terms of the lower extremities, they’re very thin looking limbs.
[39] He indicated that he had autopsied thin people before and while he said something about their thin habitus, in this instance her thin body habitus was “particularly striking”, which was why he raised the issue of undernourishment in his summary of findings.
[40] In R. v. Mohan (1994), 1994 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.) the four criteria required for the admissibility of expert opinion evidence are: 1. relevance; 2. necessity in assisting the trier of fact; 3. the absence of an exclusionary rule; and 4. a properly qualified expert.
[41] In considering the issue of relevance the proposed evidence must not only be logically relevant but it must be sufficiently probative to justify its admission. In R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534 at para. 87 Doherty J.A. notes that when one looks to the potential probative value of the evidence, one must consider the reliability of the evidence. Reliability concerns reach not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert’s expertise and the extent to which the expert is shown to be impartial and objective.
[42] The defence position is that the evidence of Dr. Chiasson and Dr. Zlotkin, experts in their respective fields, as to the estimate of pre-death weight of Melonie, or weight loss has a result of being burned, is unreliable as there is no science, experience or data relied on by the doctors for their estimate. The evidence must meet a certain threshold of reliability in order to have sufficient probative value to meet the criteria of relevance.
[43] Counsel contends that these experts are just guessing. It is this kind of evidence counsel suggests which could confuse the jury when given by experts. It does not meet threshold reliability. The court in its role as gatekeeper must exclude the evidence as not scientifically validated.
[44] In R. v. Abbey, supra, leave to appeal refused 2010 S.C.C.A. No. 125 (S.C.C.) the court held that the trial judge had erred in excluding Dr. Totten’s evidence as an expert in the culture of urban street gang culture and significance of a tear drop tattoo. The court concluded that the trial judge erred in applying the Daubert factors in the reliability analysis as to his methodology and the statistical probability of the accuracy of his conclusions. His opinion was not a product of scientific inquiry or its reliability qualified by a scientific validity. His opinion flowed from a specialized knowledge gained through extensive research, years of clinical work and his familiarity with relevant academic literature. The court stated at para. 109:
Scientific validity is not a condition precedent to the admissibility of expert opinion evidence. Most expert evidence routinely heard and acted upon in the courts cannot be scientifically validated. For example, psychiatrists testify as to the existence of various mental states, doctors testify as to the cause of an injury or death, accident re-constructionists testify as to the location or cause of an accident, economists or rehabilitation specialists testify to future employment prospects and future care costs, fire marshals testify about the cause of a fire, professionals from a wide variety of fields testify as to the operative standard of care in their profession or the cause of a particular event. Like Dr. Totten, these experts do not support their opinions by reference to error rates, random samplings or replication of test results. Rather, they refer to specialized knowledge gained through experience and specialized training in the relevant field. To test their reliability of the opinion of these experts and Dr. Totten using reliability factors referable to scientific validity is to attempt to place the proverbial square peg into the round hole.
Tested exclusively against the Daubert factors, much of the expert evidence routinely accepted and acted upon in the courts would be excluded despite its obvious reliability and value to the trial process. However, Daubert does not suggest that the factors it proposes are essential to the reliability inquiry.
[45] The Daubert factors of measureable error rates, peer review results, random sampling and replication of results – the scientific method is not essential to the reliability inquiry. While all expert opinion evidence must demonstrate a sufficient level of reliability a flexible approach is essential. There are areas of expertise where it is inappropriate to use the Daubert factors to assess reliability of an expert opinion. Doherty J.A. at para. 115, quotes from the Goudge Inquiry Report into Forensic Pediatric Pathology at page 493:
Forensic pathology provides a good example of a discipline that has not traditionally engaged in random testing or determining rates of error. The reasons are obvious: testing and reproducibility cannot be used to verify a cause of death. The forensic pathologist’s opinion must instead rely on specialized training, accepted standards, and protocols within the forensic pathology community, accurate gathering of empirical evidence, attention to the limits of the discipline and the possibility of alternative explanations or error, knowledge derived from established peer reviewed medical literature and sound professional judgment.
[46] Indeed, Drs. Chiasson and Zlotkin, as qualified experts in their respective fields, forensic pathology and pediatric gastroenterology do not assert any scientific basis for the opinion as to a weight loss through burning.
[47] Dr. Chiasson was candid in his testimony that it is based on experience and observation and examination of the condition of the deceased in question. Dr. Chiasson, testifying at the preliminary inquiry of Elaine Biddersingh on December 2, 2013, indicated that he had not reviewed Dr. Zlotkin’s report in arriving at his estimate of 10%. In addition to the photographs of the deceased during the post-mortem examination he found:
…in terms of the internal organs they’re not showing any significant evidence of destruction, no desiccation of significance. We were able to obtain blood from the body for toxicological testing and in a severely burned body that’s a major issue. So…you know given that the internal organs and the internal tissues and structures are essentially preserved I think that…a lot of the body weight is going to be you know related to that…there are parts of the body that aren’t burnt so I think that, you know, based on that the amount of tissue loss is…and I made the example of, you know, no tissue loss of significance and somebody that’s got 2nd degree burns and nothing…to severe cremation. We are closer to the less tissue loss and 10%...and again there is no scientific data that I am aware of that really assist in trying to determine that and that’s because of the variability of burnt bodies. Even if you did a study, you know, bodies are burnt variably so…you know I think we are left in the 10%, 15%, 20% possibly but I really do think that’s the extreme…I certainly don’t think it’s beyond 20%.”
[48] Dr. Chiasson testified as to the limitations of the evidence as to weight loss based on his experience and observation.
[49] Dr. Zlotkin is entitled to rely on the estimate, and in turn, Dr. Pollanen is entitled to rely on Dr. Zlotkin’s report to draw his differential diagnosis of starvation as a possible cause of death, if diatoms, which he relies on, were excluded from consideration. Dr. Pollanen is entitled to rely on the opinions of other experts, in this case, both Dr. Zlotkin and Dr. Chiasson as a basis for drawing conclusions as to the cause of death, even if it is based on second hand evidence.
[50] In Regina v. Lavallee, [1990] S.C.J. No. 3666 at para. 83 Sopinka J. stated:
…an expert arrives at an opinion on the basis of forms of inquiry and practice that are accepted means of decision within that expertise. A physician, for example, daily determines questions of immense importance on the basis of observations of colleagues, often in the form of second or third hand hearsay. For a court to accord no weight to, or to exclude, this sort of professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees of trustworthiness that surround it. And would be, in my view, contrary to the approach of this court taken to the analysis of hearsay evidence in general…
[51] Dr. Pollanen’s differential diagnosis of starvation was based on Dr. Zlotkin’s report which includes an estimate of Melonie Biddersingh’s pre-burnt body weight which possesses indicia of reliability. It is common place for forensic pathologists to rely upon the reports and opinions of experts in other fields to draw conclusions about the cause of death, which is noted in Lavallee carries with it the circumstantial guarantees of trustworthiness.
[52] In this instance, Dr. Chiasson’s opinion as to the percentage of weight loss meets threshold reliability. Dr. Chiasson’s estimate of weight loss is based on his education and experience as a forensic pathologist and qualified by the limitations he cited. He is in a position based on his experience as a pathologist to assist the trier of fact in an area with which they have no experience. It is not the court’s role to take the matter from the hands of the jury. It is for the jury to determine its ultimate reliability, as the trier of fact. The jury will assess its weight in the context of all the other evidence.
[53] The defendant’s application to disallow Dr. Pollanen testifying as to the differential diagnosis of starvation in the hypothetical and to prevent the other experts, Dr. Chiasson and Dr. Zlotkin from giving evidence as to an estimated pre-burnt weight of Melonie Biddersingh’s body is dismissed.
A.J. O’Marra J.
Released: October 1, 2015
CITATION: R. v. Biddersingh, 2015 ONSC 6063
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EVERTON BIDDERSINGH
Defendant
REASONS FOR JUDGMENT
A.J. O’Marra J.
Released: October 1, 2015