Court File and Parties
COURT FILE NO.: CR-15-176 DATE: 20160929 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – MARCELLO FRACASSI Defendant
Counsel: Frank Faveri and Mary Anne Alexander for the Crown James C. Fleming for the Defendant
HEARD: September 29, 2016
RULING ON QUALIFICATION OF DR. BRIAN MURRAY
Boswell J.
[1] This ruling addresses the qualification of a neurologist, Dr. Brian Murray, to offer opinion evidence in the area of sleep disorders.
Overview
[2] Geoffrey Gaston was an employee of the Township of New Tecumseth. In that capacity he was operating a machine repainting parking stall lines on the main downtown thoroughfare in Alliston in the early morning hours of June 20, 2014. As he did so, he was struck and killed by a pickup truck driven by Marcello Fracassi. A second Township employee was also struck but suffered less grievous injury.
[3] The Crown’s position is that Mr. Fracassi was impaired at the time of the collision. They preferred an indictment against him which includes charges of impaired driving causing death and injury; dangerous driving causing death and injury; and failing to stop.
[4] The defence position is that Mr. Fracassi was not impaired at the time of the collision. Rather, he was asleep. More particularly, that he was in the thralls of a somnambulistic episode. In other words, he was sleep driving.
[5] Sleep driving is a recognized parasomnia, though it is rare. “Parasomnia” is a broad term that captures a group of disorders where people engage in acts normally associated with wakefulness, but they are actually asleep. Somnambulism (sleepwalking, or in this case sleep driving) is one of those disorders. As a defence, parasomnia falls under the category of automatism.
[6] The automatism defence was first recognized in Canada in R. v. Rabey (1977), , 37 C.C.C. (2d) 461 (Ont. C.A.), aff’d (1980), , 54 C.C.C. (2d) 1 (S.C.C.). As Doherty J.A. described in R. v. Luedeke, 2008 ONCA 716, at para. 54,
Automatism is the legal term used to describe one specific kind of involuntary action…[it] refers to involuntary conduct that is the product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action. A person in a state of automatism may perform acts, sometimes complicated and apparently purposeful acts, but have no control over those actions. (Internal citations omitted).
[7] Involuntary acts are not criminal acts: R. v. Rabey, as above. The assertion of automatism attacks the voluntariness requirement and is a denial of the actus reus of the charged offence: R. v. Spears, [2009] O.J No. 5648
[8] The defence of automatism has been given careful consideration by the Supreme Court in at least two very notable cases following Rabey: R. v. Parks, , [1992] 2 S.C.R. 871 and R. v. Stone, , [1999] 2 S.C.R. 290. In Stone, the court held that where automatism is asserted the defence has a legal burden – in other words a persuasive burden – to prove involuntariness on a balance of probabilities: para. 179. The defence also has an evidentiary burden where automatism is asserted to satisfy the trial judge that a properly instructed jury could find that the defendant acted involuntarily on a balance of probabilities. This evidentiary burden requires the defence to present expert psychiatric evidence confirming its claim: para. 184.
[9] In this instance, Mr. Fleming has presented expert psychiatric evidence from two physicians: Dr. Colin Shapiro and Dr. Julian Gojer. Both are sleep clinicians and both were qualified by me as experts in sleep and sleep disorders. The qualifications of both psychiatrists are not in dispute.
[10] Dr. Gojer diagnosed Mr. Fracassi as suffering from multiple sleep problems, including sleep apnea and snoring. He further diagnosed Persistent Depressive Disorder, Chronic Anxiety and several obsessive compulsive behaviours. He testified that he has no doubt that Mr. Fracassi suffers from parasomnia. He clarified, however, that a diagnosis of parasomnia is not the equivalent of saying the disorder was present at the time of the collision.
[11] Dr. Gojer considered whether an alcoholic blackout may explain Mr. Fracassi’s behaviours on the night in question and his subsequent lack of memory. He concluded that it could, but indicated that if Mr. Fracassi’s evidence of alcohol consumption is accepted, another explanation for his behaviours and lack of memory is required. In his opinion, Mr. Fracassi was in a state of sleep driving at the time of the collision. His actions were not voluntary.
[12] Dr. Shapiro similarly testified that he has no doubt that Mr. Fracassi suffers from parasomnia. Again, however, he recognized that the real issue is whether the parasomnia explains the incidents that give rise to the charges before the court. After considering factors both for and against the diagnosis of parasomnia at the time of the collision, he indicated that his opinion, on balance, was that Mr. Fracassi was sleep driving at the time of the collision.
[13] In reply, the Crown served and filed a report from Dr. Brian Murray. Dr. Murray was called as a reply witness for the Crown. Mr. Fleming indicated that he would have submissions to make about the qualification of Dr. Murray but suggested that his testimony proceed uninterrupted by a voir dire as to qualification. Instead, the suggestion was that counsel could make any submissions about qualification and/or weight as part of their final submissions to the court. The Crown agreed to proceed in that manner.
[14] Ultimately, Dr. Murray agreed that Mr. Fracassi suffers from parasomnia. As for the occasion in question, however, he said it is only remotely possible that Mr. Fracassi was sleep driving.
[15] At the outset of final submissions, Crown counsel indicated that they preferred to obtain the court’s ruling on the qualification of Dr. Murray – and by implication, the admissibility of much of his evidence – before being called upon to make submissions. Though Mr. Fleming would have preferred to proceed with blended submissions, in my view the Crown is entitled to my ruling regarding Dr. Murray’s qualifications before being called upon to make their final submissions. The substance and approach of submissions may very well be altered depending on this ruling.
[16] In the result, this ruling addresses the issue of whether Dr. Brian Murray may provide general expert evidence about the nature of sleep disorders including parasomnia and ultimately render an opinion about the likelihood that Mr. Fracassi was in a somnambulistic state at the time of the incidents giving rise to the charges now before the court.
The Positions of the Parties
[17] The position of the defence is that Dr. Murray is not a properly qualified expert. This submission is grounded in four factors:
(a) The assertion that Justice Bastarache was clear in his directions in Stone: the existence or non-existence of an automatism is a matter for expert testimony from a forensic psychiatrist. Dr. Murray is a neurologist and, in the result, unable to opine about the central issue in the case – automatism. Furthermore, as a neurologist, he is not in a position to testify as to the difference between non-mental disorder automatism and mental disorder automatism;
(b) The failure of Dr. Murray to meet with Mr. Fracassi. In the absence of a personal examination, Dr. Murray is not in a position to render an opinion about parasomnia or any other psychiatric disorders affecting Mr. Fracassi. Dr. Gojer, in contrast, did an extensive investigation that led him to a number of psychiatric diagnoses, all of which, it is submitted, impact on the diagnosis of parasomnia;
(c) The lack of clinical experience of Dr. Murray in terms of cases with a litigation aspect; and,
(d) The failure of Dr. Murray to appreciate his role as an independent, objective, unbiased expert and the “Quincy-like” approach he took in parts of his report. For instance, he queried, “why did [Mr. Fracassi] not want to provide a breathalyzer sample when he was initially arrested?” This type of inquiry, it is submitted, has nothing to do with the diagnosing of a sleep disorder and demonstrates a lack of appreciation of the proper role of an expert in criminal litigation.
[18] The Crown’s position is, of course, the opposite: that Dr. Murray is fully and properly qualified to give expert opinion evidence about sleep disorders and, in particular, parasomnia.
[19] The Crown pointed to Dr. Murray’s extensive education and experience in sleep and sleep disorders as support for his qualification. They further submitted that Justice Bastarache’s directions in Stone do not bind the Crown, but only the defence, who have both an evidentiary and persuasive burden to satisfy the court of the presence of an automatism. The Crown highlighted a number of cases where experts other than psychiatrists testified in automatism cases, including R. v. Spears, as above (a specialist in internal medicine and respiratory medicine) and R. v. Balenko [2000] Q.J. No 717 (a professor of neurology).
The Legal Framework
[20] Opinion evidence is presumptively inadmissible in Canadian courtrooms.
[21] The presumption against admissibility is rebuttable in certain circumstances. Expert opinion evidence, for instance, may be admitted, following a voir dire, provided it satisfies a number of criteria delineated by the Supreme Court in R. v. Mohan, , [1994] 2 S.C.R. 9 (“Mohan”).
[22] The admissibility criteria relating to expert evidence and the process by which to assess the criteria has been refined somewhat since Mohan in two significant decisions: R. v. Abbey, 2009 ONCA 624 (“Abbey”) and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (“White Burgess”).
[23] As Doherty J.A. indicated in Abbey, “the determination of the scope of the proposed expert opinion evidence and the manner in which it may be presented to the jury if admissible will be made after a voir dire.” (para. 63). This case is unusual in that the voir dire, with the agreement of counsel, was conducted after all of Dr. Murray’s evidence had been received.
[24] At any rate, during the course of the voir dire, the court must proceed through a two-step analysis (see White Burgess, paras. 23-24). First, the party proposing to call the expert evidence must establish the threshold requirements of admissibility. These include the four factors initially identified in Mohan: (1) that the evidence is logically relevant; (2) that it is necessary to assist the trier of fact; (3) that it is not subject to an exclusionary rule apart from the rule relating to expert opinion evidence; and (4) that it is tendered through a properly qualified expert.
[25] Second, the court engages in a discretionary gatekeeping function. This function may be loosely described as a determination of whether the proffered opinion evidence is “worth the candle”. It involves conducting a cost/benefit analysis; a determination of whether the evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from its admission.
Discussion
[26] At the first stage of the inquiry, the court must assess whether the Crown has met the four prerequisites outlined in Mohan. The first three are not in dispute.
Logical Relevance
[27] The first prerequisite, logical relevance, involves as consideration of whether, as a matter of logic and human experience, the evidence on offer has a tendency to make a fact in issue more likely than it would otherwise be: see R. v. Cloutier, , [1979] 2 S.C.R. 709. This is a relatively low threshold. There is no doubt that Dr. Murray’s evidence concerning parasomnias generally, the interpretation of Mr. Fracassi’s sleep study results, the review and consideration of the reports of Dr. Shapiro and Dr. Gojer and the ultimate opinion as to the likelihood of a parasomnia occurring on June 20, 2014 is logically relevant.
Necessity
[28] The second prerequisite, the need for expert evidence, is also undisputed. The Supreme Court in Stone recognized the need for expert evidence in automatism cases. Two experts have already been called by the defence and qualified in the area of sleep disorders.
No Applicable Exclusionary Rule
[29] The third prerequisite requires that there be no applicable exclusionary rule beyond that dealing with opinion evidence. None has been suggested by counsel.
Properly Qualified Expert
[30] The real dispute lies in the fourth of the Mohan criteria: whether Dr. Murray is a properly qualified expert. I will begin my assessment of his qualifications with a review of his curriculum vitae.
Education and Experience
[31] Dr. Murray obtained his medical degree from the University of Toronto in 1995. From there he did an internship in internal medicine at the New England Deaconess Hospital, Harvard Medical School between 1995 and 1996. He went on to a residency in neurology between 1996 and 1999. He did a fellowship (a sub-specialty) in clinical neurophysiology between 1999 and 2000, followed by a fellowship in sleep medicine from 2000-2001.
[32] He returned to Canada in 2001 and received his license from the Ontario College of Physicians and Surgeons. He has been on staff at the Sunnybrook Health Sciences Centre since 2001. He has been a professor at the University of Toronto medical school since 2001; at first an assistant professor and more recently an adjunct professor. He teaches neurology and sleep medicine.
[33] Dr. Murray is board certified in sleep medicine. His certification comes from the American Academy of Sleep Medicine. There is no Canadian equivalent. He is a fellow of that Academy.
[34] His practice consists of both clinical work and research. His clinical work is in both sleep and general neurology. He testified that about 1/3 of his clinical work is in neurology; 1/3 in sleep disorders generally; and 1/3 in more particular neurological aspects of sleep disorders.
[35] Since 2004 he has run the sleep clinic at Sunnybrook Hospital. He has treated thousands of patients with sleep disorders at his clinic in the years since 2004. He consults with psychiatrists regarding sleep disorders and says they consult with him.
[36] He has published articles on parasomnias within the broader context of neurology and he has lectured extensively on them. He has peer-reviewed other articles on parasomnias.
[37] Dr. Shapiro was asked by Mr. Fleming if Dr. Murray was a forensic psychiatrist. Dr. Shapiro said, “He’s a neurologist and he works at Sunnybrook Hospital and he is a sleep clinician, as am I.”
[38] A properly qualified expert is one who is, first and foremost, a person who the court is satisfied has “acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”: R. v. Mohan, as above, at para. 27.
[39] I have no hesitation in finding that Dr. Murray is a person who has acquired special skill and knowledge in the field of sleep disorders and parasomnias through his education, fellowships, research and clinical experience. He is, in my view, as qualified by way of his education and experience, as either of the two defence experts who testified about sleep disorders and parasomnia.
An Accepted Specialty
[40] Mr. Fleming argued that, essentially, neurologists are not an accepted specialty in cases of automatism. In support of that assertion he highlighted passages from Justice Bastarache’s decision in R. v. Stone, which I referred to earlier. In particular, he pointed out the Supreme Court’s direction that defendants asserting a defence of automatism must provide the court with expert evidence from a forensic psychiatrist.
[41] I do not interpret the Supreme Court’s ruling to be so broad as to suggest that only a forensic psychiatrist may provide expert opinion evidence about sleep disorders or parasomnia. It may well be that cases of automatism generally call for psychiatric evidence, given that they involve dissociative states of consciousness. But that is not the same thing as saying forensic psychiatrists are the only experts capable of giving opinion evidence about automatisms, nor is it the case that psychiatrists have an exclusive domain over the study and treatment of sleep disorders. I note that Stone was not a sleepwalking case.
[42] In the famous case of R. v. Parks, as above, the defence called expert evidence from five physicians: a neurophysiologist and specialist in sleep and sleep disorders; a neurologist; a psychiatrist; a forensic psychiatrist; and a neurologist/psychiatrist. Each of these physicians testified that, in their opinion, Mr. Parks was sleepwalking when the events in issue occurred. No concerns were voiced by the Supreme Court about the ability of non-psychiatrists to offer opinion evidence in the area of sleep disorders.
[43] As the Crown pointed out in argument, there are other examples of physicians specializing in disciplines apart from forensic psychiatry who have been qualified to give opinion evidence in parasomnia cases.
[44] I am not ultimately persuaded that a neurologist is prima facie not qualified to give opinion evidence regarding sleep disorders and/or parasomnia. Qualification depends on the proposed expert’s knowledge and expertise in sleep disorders gained through education, research and experience.
Failure to Interview Mr. Fracassi
[45] I am similarly not persuaded that Dr. Murray’s failure to meet with Mr. Fracassi is an issue that goes to admissibility. In my view, it goes to weight.
Absence of Prior Courtroom Qualifications
[46] I recognize that Dr. Murray has no prior experience testifying in court. In my view that is an irrelevant factor. I also recognize that Dr. Murray has very limited experience in dealing with patients who are engaged in litigation. Again, I do not consider that a relevant factor. Finally, I recognize that Dr. Murray has only had direct experience with one sleep driving patient in his clinical practice. In my view that is a factor that goes to weight, if anything. All of the experts who testified have confirmed that sleep driving is a rare occurrence. One would not expect, in the circumstances, that any expert would have substantial experience with sleep driving. Even Dr. Shapiro, a world-renowned expert in sleep and sleep disorders, has had very few clinical experiences with sleep drivers.
[47] I turn, finally, to the suggestion that Dr. Murray is not properly qualified because certain aspects of his report reveal him to be less than objective.
Bias
[48] Historically, there were two schools of thought in terms of how and when the issue of bias should be accounted for by trial judges. One school of thought was that bias ought to be considered as an integral part of the admissibility inquiry. The other was that the matter of bias should have no bearing on admissibility and only go to the matter of weight. The issue was settled by the Supreme Court in White Burgess: bias must be considered both as to admissibility and as to weight.
[49] As a threshold requirement to admissibility, an expert’s opinion evidence must be fair, objective and non-partisan. If an expert attests or testifies under oath that he or she is aware of and accepts the duty to be fair, objective and non-partisan, then the onus is on the party opposing admission to demonstrate that there is a realistic concern that the expert may not be willing or able to comply with that duty.
[50] Cromwell J. described the threshold inquiry in some detail in White Burgess, at para. 49:
This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.
[51] When testifying, Dr. Murray confirmed his understanding that his role as an expert witness is to be impartial and unbiased and to provide an objective opinion on the materials he reviewed. He said he understands he is obliged to be independent. He said he has been paid for his time, not for a particular opinion. He confirmed that he has no interest in any particular outcome.
[52] I accept that Dr. Murray’s report contains a number of passages that are peculiar, in the sense that they do not fall within the proper scope of his inquiry or expertise. They generally represent questions about factual issues that may affect the plausibility of the sleepwalking event. These factual determinations are in the domain of the trier of fact, not the expert. In my view, these passages do not reflect bias or a lack of objectivity. If anything they tend to reflect Dr. Murray’s inexperience in preparing reports that will be reviewed by counsel and presented in court. I certainly did not get a sense of bias or partiality from Dr. Murray as he testified, with the agreement of counsel. It struck me that Dr. Murray was prepared to and did provide the court with fair, objective and non-partisan evidence.
[53] In my view, this is not one of the very clear cases in which a proposed expert’s evidence should be ruled inadmissible on the basis of bias.
Legal Relevance
[54] The second stage of the Mohan inquiry is to determine if the proffered expert evidence, while otherwise admissible, is of sufficient value to the trial to justify its reception.
[55] Given the unusual way in which the voir dire was conducted in this case, all of Dr. Murray’s evidence has already been received. It can no longer be argued that it will consume an inordinate amount of time or recourses to hear. At the same time, there was nothing in his evidence that I considered likely to distract, mislead or confuse me as the trier of fact. In short, I am satisfied that, given Dr. Murray’s expertise, his evidence was and is worth the time and trouble to receive it.
Conclusion
[56] In the result, I find that Dr. Murray is properly qualified as an expert in neurology and sleep disorders and able to give opinion evidence regarding the architecture of sleep, sleep disorders including sleep apnea and parasomnia and to opine about the likelihood that Mr. Fracassi experienced a parasomnia at the time of the incidents in issue.
[57] I will hear counsel’s submissions if there are further arguments about the parameters of his admissible opinion evidence.
Boswell J.