ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-10000564-0000
DATE: 20151203
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EVERTON BIDDERSINGH
Respondent
Mary Humphrey and Anna R. Tenhouse, for the Crown
Jennifer Penman and Genevieve McInnes, for the Respondent
HEARD: December 3, 2015
RULING
LATE DISCLOSURE
a.j. o’marra j.
[1] Dr. Pollanen, now Chief Forensic Pathologist for Ontario, is the last witness in the Crown’s case. On December 2, 2015, Dr. Pollanen, the day before he was to testify, sent a letter, which is Exhibit No. 2, to the Crown to advise the following:
During my preparation for trial, and as a follow-up to my testimony at the preliminary inquiry, I have now examined histological sections obtained at autopsy; specifically I reviewed six histological sections that were prepared from the major organs at post-mortem examination. These included two sections of heart, two sections of lungs, [on one slide], a section each of ovary and endometrium [on one slide], a section of liver and kidney [on one slide], and skin. The tissues show various degrees of post-mortem thermal change. The most significant finding is a marked atrophy in the epicardial and subcutaneous fat. The histological findings further support the conclusion of starvation.
[2] The significance of the observation made by Dr. Pollanen from the review of the histological slides of samples taken from internal organs of the deceased is that it is additional information that the deceased was “chronological malnourished”. It coincides with the observation made by Dr. David Chiasson on his original post-mortem report that the deceased exhibited “a very thin habitus suggestive of chronic malnourishment”. Similarly, it coincides with pediatric nutritionist Dr. Stanley Zlotkin’s opinion that the deceased was severely malnourished at the time of death.
[3] The letter was disclosed to defence counsel approximately one hour after it was received by the Crown on December 2, 2015.
[4] At the commencement of proceedings yesterday, December 3, 2015, just before Dr. Pollanen was to testify, defence counsel applied for an order from the court to exclude the late disclosure as a remedy under s. 24 of the Charter of Rights and Freedoms for a breach of the defendant’s right to make full answer and defence as guaranteed by s. 7 of the Charter.
[5] On the trial, Dr. Chiasson testified that he made no reference to a loss of internal fat in his post-mortem report in association with the organs of the deceased. He did indicate that the deceased looked severely malnourished. From the post-mortem photographs of the deceased, it can be seen that there was decreased fat certainly in the abdominal wall area.
[6] His recollection was that the fat was present, but reduced around the organs; however, it was not contained in his report as such. He agreed in cross-examination that all of which he referred to was indicative of malnutrition, although in the microscopic findings section of his report there was nothing specifically noted concerning reduced fat with respect to the organs. The only indication of malnutrition, he said in the report section was reference of some evidence of an inactive endometrium with respect to the deceased’s uterus.
[7] The new information, defence counsel contends, undermines its position and defence strategy taken in examination of the forensic experts that the deceased did not die from malnutrition.
[8] This late disclosure arose in part as a result of questions asked of Dr. Pollanen by defence counsel at the preliminary inquiry in this matter on October 23, 2013. At the preliminary inquiry at page 95, Dr. Pollanen was asked by defence counsel the following:
Q: But there would be specific signs…well, I guess the better question is, there would be specific signs on autopsy.
A: Yes.
Q: So there would be signs in the organs for example…
A: Yes.
Q: …of some kind of abnormality.
A: Correct.
Q: Ok. And in this case we don’t have those indicia here.
A: As I said, I didn’t perform the autopsy.
Q: From your reading of the autopsy report.
A: I would have to review it again with that in mind; look at the histological sections again to see if some of those changes were present.
Q: Ok. So you can do that at some point and then…
A: If asked I could do that.
Q: Ok.
[9] Dr. Chiasson, who performed the original post-mortem, September 1, 1994, concluded at that time that the cause of death was undetermined. During the post-mortem he extracted fluid from the maxillary sinus of the deceased. Later in 1995, Dr. Pollanen examined the fluid and bone marrow of the deceased’s femurs and found diatoms. In his report of January 26, 1996, he opined that the presence of diatoms in the bone marrow that matched diatoms in the maxillary sinus fluid was indicative of drowning or drowning as a major contributing factor in causing death.
[10] Dr. Chiasson accepted Dr. Pollanen’s opinion as positive findings that co-relate to the original autopsy findings of pulmonary congestion and edema to provide strong presumptive support for drowning as the cause of death.
[11] Later, Dr. Zlotkin, a pediatric nutritionist from the Hospital of Sick Children, on a review of the post-mortem report and assessment of pre-death body weight of the deceased calculated on a basis of an estimated weight loss due to her body having been extensively burned, that her body mass index (BMI), at 9.0 was well below the first percentile for a girl of her age, 17.1 years. Her body weight at the time of death was the equivalent of an eight year old. Her body weight at the time of death was considered grossly abnormal. She was severely malnourished likely due to inadequate food intake over months or years.
[12] On the preliminary inquiry in this matter, both Drs. Chiasson and Pollanen acknowledged that the use of diatoms as a diagnostic of drowning is not without some controversy in the scientific community. Notwithstanding, both Drs. Chiasson and Pollanen, remained of the opinion that the presence of diatoms in this instance is indicative of drowning as the cause of death or in Dr. Pollanen’s perspective, drowning as a major contributing factor in causing death.
[13] Just before the start of trial, the Crown met with Dr. Pollanen, September 13, 2015 to discuss “the differential diagnosis of the cause of death” of Melonie Biddersingh, if diatoms were considered reliable indicators of inhalation of water, or in the alternative, if the presence of diatoms is spurious and not reliable indicators of water inhalation.
[14] Dr. Pollanen, in addressing the hypothetical that diatoms are assumed to be unreliable, indicated that he favoured starvation as the cause of death, being heavily influenced by Dr. Zlotkin’s report and analysis of starvation indicators present. Notwithstanding, he was still of the opinion that diatoms are a reliable diagnostic of drowning, and in this instance, the cause of death.
[15] Dr. Pollanen’s evidence on the trial has been deferred to the very end of the Crown’s case because of his professional commitments abroad in Iraq for the past month. On returning, as indicated in his letter, having reviewed the preliminary inquiry evidence and the questions asked about starvation by defence counsel, it appeared to him that a review of the histological sections should be done.
[16] The slides were initially kept in the office of the Chief Coroner and when the office was relocated they were transferred to the new facility, the Forensic Pathological Services Centre. On request the slides were provided to Dr. Pollanen, which he reviewed, and his observations were reported to the Crown immediately thereafter in the December 2, 2015 letter, Exhibit No. 2.
[17] On the application I directed that Dr. Pollanen should be called on the voir dire in order to understand the role of these observations and his expert opinion as to the cause of death.
[18] On the voir dire Dr. Pollanen indicated that his observations from the histological section are, provides “additional quantitative data, which supports the differential diagnosis of starvation based on what he considered earlier, the post-mortem report of Dr. Chiasson and photographs of the deceased’s remains at autopsy, as well as the body mass index of the deceased as considered by Dr. Zlotkin in his report.
[19] He described the histological slide observations as a third line of data supporting the conclusion of starvation or which is alternatively referred to as chronic malnutrition.
[20] This third line of data in addition to the post-mortem report review, the photographs of the deceased’s remains and Dr. Zlotkin’s BMI analysis, although supportive of his differential diagnosis of starvation, did not alter his opinion that death was due to drowning or that drowning was a major contributing factor to death because the data does not discount the presence of diatoms. Further, I took from Dr. Pollanen’s evidence that in the absence of the histological slide observations, his differential diagnosis of starvation based on what he had considered earlier, the post-mortem report, the photographs and Dr. Zlotkin’s report, would remain the same.
[21] The Crown maintains that notwithstanding the late disclosure, the defence should not have been caught by surprise by this evidence for three reasons:
(1) It was defence counsel who raised the question at the preliminary inquiry which elicited a response from Dr. Pollanen about the value of examining his histological slides;
(2) The defence applied at an earlier pre-trial motion to exclude Dr. Pollanen from testifying as to the hypothetical differential diagnosis of starvation; and
(3) Not to admit the evidence would prevent the jury from getting to the truth as to the cause of death in this case.
[22] The defence contends that it has already cross-examined Dr. Chiasson and elicited evidence that there was no pathological evidence of reduced fat in relation to the organs indicative of starvation. To allow the evidence of Dr. Pollanen’s observations of the histological slides would greatly prejudice the defendant’s position that Melonie Biddersingh did not die of starvation, but rather, drowning was the cause of death.
[23] The Crown’s position is that the observations of marked atrophy of fat cells adds to the evidence in support of starvation as the cause of death, should the jury reject the opinions of Drs. Chiasson and Pollanen that the cause of death was drowning due to the controversy as to the reliability of diatoms.
[24] There is no suggestion in this application that the late disclosure is as a result of any misconduct by the Crown. Indeed, up until Dr. Pollanen sent his letter of December 2, 2015 to the Crown, the Crown was unaware of the information and was prepared to call Dr. Pollanen to elicit his evidence as to his opinion of the cause of death being drowning or alternatively in the absence of diatoms, the differential diagnosis of starvation.
[25] In Regina v. Bijelland, 2009 SCC 38, [2009] S.C.J. No. 38, Justice Rothstein set out the appropriate considerations for the court when the exclusion of evidence is sought as a remedy under s. 24 of the Charter of Rights and Freedoms.
[26] In that case, shortly before the commencement of trial, the Crown provided late disclosure of alleged accomplice evidence it intended to call at trial. The defendant moved for a stay of proceedings, or alternatively for an order of excluding the evidence on the grounds his right to make full answer and defence had been prejudiced by the late disclosure. The trial judge ordered the exclusion of the late disclosure evidence under s. 24 of the Charter because the accused would not have had the opportunity to have cross-examined the potential Crown witnesses at the earlier preliminary hearing.
[27] At trial, the accused was acquitted. On appeal, the Court of Appeal set aside the acquittal and ordered a new trial finding that the trial judge had committed jurisdictional error by failing to consider a less severe remedy than the exclusion of the evidence. The majority of the Supreme Court agreed with the Court of Appeal, and the appeal was dismissed.
[28] The considerations set out by the Supreme Court are instructive in the exercise of the judicial discretion in such instances. The party seeking a remedy under s. 24 must establish that his Charter right has been infringed. In the circumstances of late disclosure constituting a breach, the accused must generally show an actual prejudice to his ability to make full answer and defence. The prejudice complained of must be material and not trivial. The Court observed at para. 24 that the trial judge should only exclude evidence for late disclosure in exceptional cases:
(a) Where the late disclosure renders the trial process unfair and the unfairness cannot be remedied through an adjournment and disclosure order or,
(b) Where the exclusion is necessary to maintain the integrity of the judicial system.
[29] I emphasized the following from the judgment:
Because the exclusion of evidence impacts on trial fairness from society’s perspective as it impairs the truth seeking function of trials, where a trial judge can fashion an appropriate remedy for late disclosure that does not deny a procedural fairness to the accused and where the admission of evidence does not otherwise compromise the integrity of the judicial system, it would not be appropriate and just to exclude evidence under s. 24(1).
[30] I accept that the observations made by Dr. Pollanen of the histological slides in this case is from real evidence and would assist in the truth seeking function in the trial; however, in these circumstances if the evidence is admitted there would be material prejudice to the accused. One of the examples set out in Regina v. Bijelland at para. 26 cited in which exclusion may be warranted is where the evidence is produced mid-trial after an irrevocable decision about the defence has been made. Here the disclosure is provided at the very end of the Crown’s case and well after the other forensic experts, more particularly Dr. Chiasson, have testified. The defence counsel cross-examined Dr. Chiasson based on his report and obtained answers supportive of its position and the defensive strategy that starvation is not the cause of death.
[31] In my view, an adjournment would not remedy the prejudice. In effect, for the accused the dye has been cast. Further, the recall of Dr. Chiasson for additional cross-examination, which I considered, would not reverse the effect of the late disclosure and only serve to undermine the defence strategy.
[32] It is, indeed, unfortunate that the histological slides had not been examined at an earlier occasion with the result of disclosure being made when the differential diagnosis of starvation was first advanced. I accept that the observation of starvation and in his observations to admit it now would compromise procedural fairness for the accused. However, I add that to exclude the evidence would not diminish what appears to be an otherwise substantial evidentiary basis for the opinion of chronic malnutrition. The Crown’s case with respect to cause of death will neither rise nor fall on the recent observations of the microscopic examinations by Dr. Pollanen.
[33] In the result, Dr. Pollanen’s evidence as to his recent review of the histological slides shall not be allowed. Notwithstanding this exclusion, I add that the defence, of course, must be cautious in its cross-examination of Dr. Pollanen not to suggest that there is no indicia of starvation based on the examination of the internal organs of the deceased in light of the existence of the evidence, albeit excluded for reasons outlined above.
A.J. O’Marra J.
Released: December 3, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EVERTON BIDDERSINGH
Respondent
Ruling late disclosure
A.J. O’Marra J.
Released: December 3, 2015