Court File and Parties

COURT FILE NO.: CR-17-10000034-0000 DATE: 20170412 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOEL FRANCE Defendant

Counsel: Mihael Cole and Heather Keating, for the Crown Nathan Gorham and Joanne Park, for the Defendant

HEARD: January 31 and February 1, 2017

MOLLOY J.:

REASONS FOR DECISION #1 (Ruling on Expert Evidence)

A. INTRODUCTION

[1] Joel France was charged with second degree murder in the death of Nicholas Cruz. Nicholas died on July 14, 2013; he was two years old. Mr. France was the live-in partner of Nicholas’ mother, Marleny Cruz. [1]

[2] Prior to his death, Nicholas lived with his mother and Mr. France. In the two weeks prior to his death, they were the only ones who had access to him. When Mr. France and Ms. Cruz brought Nicholas to the emergency department of a Toronto hospital on the afternoon of July 14, 2013, he was already dead. He had many cuts and bruises, some new and some older. The cause of death was not immediately apparent just looking at Nicholas. However, an autopsy was performed and all parties now agree that Nicholas died as a result of septic shock arising from injuries to his intestines caused by a blunt force trauma to his abdomen. None of his other injuries were related to his death.

[3] The theory of the Crown’s case is that Mr. France deliberately hit or punched Nicholas in the stomach with such force that it caused his intestines to rupture. After several days of suffering, including pain, disorientation, dizziness and vomiting green bile, he died of sepsis. The Crown also alleges that Mr. France inflicted the numerous other injuries found on Nicholas’ head, ears, face, chest and back.

[4] The Crown proposed to call Dr. Michael Pollanen, a forensic pathologist, to testify as to the cause and mechanism of death. The defence did not challenge the qualifications of Dr. Pollanen to provide expert evidence in this area and did not dispute Dr. Pollanen’s opinion that Nicholas died of sepsis after his intestines ruptured as a result of a blunt force trauma to the abdomen. The defence also did not object to Dr. Pollanen testifying as to the nature of the other injuries on Nicholas’ body and the likely timing of all of the injuries, including the blunt force trauma to the abdomen. However, the defence objected to the admissibility of some portions of Dr. Pollanen’s proposed evidence, specifically with respect to: (1) whether the blunt force trauma to the abdomen was deliberately inflicted as opposed to being accidental; (2) whether he could draw an inference that the trauma to the abdomen was an assault based on the other injuries to Nicholas; (3) whether he could testify as to the probabilities of the abdominal injury being accidentally caused; (4) whether he could use terms that might be confusing to the jury, such as injuries being “consistent with” certain causes or the force of the abdominal trauma being “significant;” and (5) the nature of hypothetical questions that could be put to Dr. Pollanen.

[5] Dr. Pollanen testified as a witness on the voir dire. Following the evidence and argument, I ruled as follows:

(a) Dr. Pollanen could provide his expert opinion as to the cause of death and mechanism of death, as well as the nature of the other injuries on Nicholas’ body and the timing of all injuries; (b) Dr. Pollanen would not be permitted to testify as to whether an assault was more likely to have caused the injury than an accidental fall, nor would he be permitted to express an opinion on the probabilities of one cause as opposed to another; (c) Dr. Pollanen would not be permitted to express an opinion as to whether the other injuries to Nicholas made it more likely that the abdominal injury was caused by an assault; (d) Dr. Pollanen would not be permitted to testify that the injury to Nicholas’ abdomen was caused by a “significant” blow, as this would be likely to be seen by the jury as an opinion on the degree of force used; (e) Dr. Pollanen should avoid using language to say that the injuries were “consistent with” an assault, but rather should use language such as the injuries could have been caused this way, or it is possible they were caused this way; and (f) Any hypothetical question put to Dr. Pollanen should not be so detailed that it mirrors the facts of this case exactly and essentially asks him to answer the very question the jury is required to answer.

[6] At that time, I advised counsel that written reasons for this ruling would follow.

[7] Following the pre-trial motions, Mr. France entered a guilty plea to the lesser-included offence of manslaughter on the basis of an agreed statement of fact wherein the basis of the manslaughter was the illegal act of failing to provide necessary medical treatment for Nicholas. The matter then proceeded before me for sentencing. The Crown alleged three aggravating factors, which were disputed by the defence. At the outset of the sentencing hearing, I conducted a Gardiner [2] hearing to determine: (1) whether Mr. France inflicted the fatal blow to Nicholas’ abdomen; (2) whether Mr. France assaulted Nicholas on other occasions; and (3) whether Mr. France assaulted Ms. Cruz.

[8] Given the guilty plea and agreed facts, it was unnecessary to provide reasons for a number of the pre-trial rulings I made. However, the limitations I placed on Dr. Pollanen’s evidence have a direct bearing on the findings of fact I must make in the Gardiner hearing. Therefore, my reasons for the rulings I made as to his evidence are still relevant. Those reasons are set out below.

B. GENERAL PRINCIPLES OF LAW GOVERNING EXPERT WITNESSES

[9] The trial judge plays a gate-keeper function with respect to the admissibility of expert opinion evidence. Any analysis on this issue starts with the framework established in the Supreme Court of Canada’s landmark 1994 decision in R. v. Mohan [3]. In its more recent 2015 decision in White Burgess Langille Inman v. Abbott and Haliburton Co. [4], the Supreme Court summarized its approach in Mohan as follows (at para. 19):

… Mohan established a basic structure for the law relating to the admissibility of expert opinion evidence. That structure has two main components. First, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert ( Mohan, at pp. 20-25; see also Sekhon, at para. 43). Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21. This is the second component, which the subsequent jurisprudence has further emphasized: Lederman, Bryant and Fuerst, at pp. 789-90; J.-L.J., at para. 28.

[10] In White Burgess, the Supreme Court adopted the analysis of Doherty J.A. in R. v. Abbey [5] and established a two-step process for the application of the Mohan test, as follows (at paras. 23-24):

[23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose: J.-L.J., at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283, 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396, at para. 72

[24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: para. 76.

[11] One of the dangers that the Mohan approach was designed to address is undue reliance by the trier of fact on experts who speak in technical, scientific language and appear infallible. Sopinka J. described it this way in Mohan (at p. 21):

There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. As La Forest J. stated in R. v. Béland, [1987] 2 S.C.R. 398, at p. 434, with respect to the evidence of the results of a polygraph tendered by the accused, such evidence should not be admitted by reason of "human fallibility in assessing the proper weight to be given to evidence cloaked under the mystique of science".

[12] The necessity factor is raised where the expert’s proposed evidence impinges on the role of the trier of fact, often offering an opinion on the very question that the jury is required to answer. Sometimes, because of the nature of the question to be answered by the jury, expert testimony on the issue is essential for the jury to understand the subject matter. However, the trial judge must be vigilant to ensure that the expert’s testimony does not stray from the true area of the witness’s expertise and into the fact-finding role of the jury. As stated by Moldaver J. (writing for the majority of the Supreme Court of Canada) in R. v. Sekhon [6]:

Given the concerns about the impact expert evidence can have on a trial — including the possibility that experts may usurp the role of the trier of fact — trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges — including those in judge-alone trials — have an ongoing duty to ensure that expert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert’s testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert’s testimony, the testimony remains within the proper boundaries of expert evidence. As noted by Doherty J.A. in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 62:

The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, if necessary, the language in which the expert’s opinion may be proffered so as to minimize any potential harm to the trial process. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal . . . . [Emphasis added; citations omitted.]

[13] Assessing whether the expert is qualified by education and experience to provide the opinion tendered to the court is typically the first question addressed by the trial judge when the expert witness is called. As underscored in Sekhon and Abbey, part of this exercise involves considering not only the overall expertise of the expert, but also the extent to which his expertise is engaged on each question upon which he is asked to opine. The questions to be asked must be delineated and assessed in this light. In Sekhon, Moldaver J. held: [7]

The trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence.

[14] The determination as to whether an expert is “qualified” to provide the proposed evidence also involves an assessment of the expert’s impartiality, independence and absence of bias. The Supreme Court of Canada held in White Burgess that these three factors underlie the duty an expert witness owes to the court and are properly addressed as an admissibility issue within the “qualified expert” element of the Mohan framework. [8]

[15] In considering this aspect of the testimony provided by a forensic pediatric pathologist, it is wise to consider the cautionary tale of now disgraced Dr. Charles Smith, a pathologist whose testimony as an expert witness resulted in numerous miscarriages of justice, as detailed in the findings of the “Goudge Inquiry.” [9] In an article published in 2009, [10] Professor David Paciocco (as he then was) provides a thoughtful overview of the findings of the Goudge Report and what the justice system should take from it. He points out, correctly, that the Goudge Report was not the first to highlight the tragedies that can follow upon undue reliance on experts testifying outside their areas of expertise, overstating the evidence supporting their positions, and being less than impartial in their approach to the analysis. [11]

[16] Both the case law since Mohan and the Goudge Report advocate an “evidence-based approach” to evaluating the expertise of a witness to offer an opinion on a particular point. Professor Paciocco identifies four predicates upon which this approach is synthesized in the Goudge Report as follows (at p. 156):

The Goudge Report demonstrates the most basic safeguards – things such as the clear articulation of the expert’s competence, and the need to appreciate the quality of expert training – but its most profound contribution is in the central place it gives to the “evidence based approach” to expert evidence. The Mohan test has long insisted on an evidence based approach, but the Goudge Report now shows how best to achieve it, describing as it does, the four predicate conditions for practicing a “show me” strategy for ensuring the integrity of expert evidence:

(1) the theory or technique used by the expert must be reliable, and so too must the use of that theory or technique by the expert; (2) the expert must not be biased; (3) the expert must be objective and complete in collecting evidence, must reject all information that is not germane to the theory or technique being used, and must be transparent about all information and influences they have been exposed to; and (4) the expert must clearly express not only the opinion, but also the complete reasoning process that led to it, and must be candid about the shortcomings of the theory or technique employed and the opinion reached, offering fair guidance on the level of confidence that can be placed in the opinion expressed.

[17] With respect to the second of these points, Professor Paciocco stresses the importance of the expert maintaining an “open mind to a broad range of possibilities” and notes that bias can often be unconscious. He refers to a number of forms of bias: lack of independence (because of a connection to the party calling the expert); “adversarial” or “selection” bias (where the witness has been selected to fit the needs of the litigant); “association bias” (the natural bias to do something serviceable for those who employ or remunerate you); professional credibility bias (where an expert has a professional interest in maintaining their own credibility after having taken a position); “noble cause distortion” (the belief that a particular outcome is the right one to achieve); and, a related form of bias, “confirmation bias” (the phenomenon that when a person is attracted to a particular outcome, there is a tendency to search for evidence that supports the desired conclusion or to interpret the evidence in a way that supports it). [12] Confirmation bias was a particular problem identified in the Goudge Report as Dr. Smith and other pathologists and coroners at the time approached their investigations with a “think dirty” policy, an approach “inspired by the noble cause of redressing the long history of inaction in protecting abused children,” and designed to “help ferret it out and address it.” [13] Unfortunately, as commented on by the Goudge Report and by Professor Paciocco, such an approach raises a serious risk of confirmation bias.

[18] Ironically, Professor Paciocco begins his analysis of the evidence-based approach to evaluating the expertise of a proposed witness by quoting Dr. Pollanen’s testimony before the Ontario Court of Appeal on its review of the wrongful conviction of Stephen Truscott. He writes (at p. 146):

During his testimony offered in the Ontario Court of Appeal review of the conviction of Stephen Truscott, Dr. Pollanen, chief forensic pathologist for Ontario, described how the approach to forensic and other branches of medicine has shifted in the last ten years. “Traditionally expert opinions were largely based on authoritative experience and anecdotal case report,” he said. Now an “evidence-based approach” is expected. “This approach requires a critical analysis of peer-reviewed literature and attention to primary reviewable evidence from the post-mortem examination.”

[19] I say “ironically” because, for reasons I will develop below, I find that Dr. Pollanen: (1) failed to properly prepare before testifying and nevertheless expressed an opinion with certainty; (2) offered opinions beyond his area of expertise; (3) looked for ways to support a position hastily taken (professional credibility bias); and (4) started from a position that this was a case of abuse, which he then sought to prove (confirmation bias).

[20] In the penultimate paragraph of his article, Professor Paciocco refers to the four predicates identified by the Goudge Report as necessary for ensuring the integrity of expert evidence and then states: [14]

Standing alone, this list looks trite and obvious. That is not surprising because base truths are characteristically simple, and they tend to be evident in their wisdom. Part of the virtue in the Goudge Report is that it serves as sad demonstration that such truths are easy to lose sight of, simple to forget. If lawyers and judges hearken to the lessons it contains, the Goudge Report will help protect the integrity of judicial findings by diminishing the risk that this will happen.

[21] I do not question the professional expertise of Dr. Pollanen, nor do I doubt his integrity. He has testified about the importance of an evidence-based approach and has lectured and taught about how expert witnesses should behave to avoid falling into some of the pitfalls that were the focus of the Goudge Report. Nevertheless, in my view, he himself ran afoul of some of these very principles. It is a compelling illustration of how easy it is to fall into these errors and how cautious lawyers and judges must be in evaluating such evidence.

C. THE EVIDENCE OF DR. POLLANEN

Post-Mortem Report – October 21, 2013

[22] Dr. Pollanen performed the autopsy on Nicholas’ body on July 15, 2013.

[23] The post-mortem report dated October 21, 2013 includes a chart listing the injuries as contusions of the duodenum and jejunum and a laceration of the jejunum. The mechanism of injury is described as “[b]lunt impact to abdomen with internal tearing/shearing of the intestine.” The estimated age of the injury is described as “[d]ays, likely less than 3 days.” In the narrative portion of the report, Dr. Pollanen states that the cause of death was “the complications of intestinal injury caused by blunt abdominal trauma” and that the mechanism of death included “sepsis from peritonitis as well as small intestinal obstruction.” He goes on to state that the abdominal injuries were “most likely caused by impact(s) onto the front of the abdomen, such as can occur with punching, kicking, stomping, impact of the abdomen against an unyielding surface, or other similar events.”

[24] The report offers no opinion as to the intention behind the blow that caused the injury, in particular whether it was deliberate or accidental. There is also no discussion as to the degree of force that would be required to cause this type of injury.

Testimony at the Preliminary Hearing

[25] Dr. Pollanen testified at the preliminary hearing on March 12, 2015. On the voir dire before me, Dr. Pollanen accepted the accuracy of his testimony at the preliminary hearing and the transcript was marked as an exhibit.

[26] In his testimony at the preliminary hearing, Dr. Pollanen expanded on the post-mortem report. He explained that young children are more susceptible to abdominal injuries than adults because they have less protective muscle tone or resistance in front of the abdominal wall, so that any injury is more easily transmitted to the abdominal cavity. He commented specifically on the degree of force necessary to cause the injury Nicholas sustained. When asked in-chief about the mechanism for such an injury, he testified (at p. 23): [15]

So if you start from first principles as we have, we have intestinal trauma which is related to the transmission of force though the front of the abdomen. So on this basis you need a force of sufficient magnitude to be transmitted and damage deep in the abdominal cavity. Second, you need to have – the force needs to be sufficient to cause bleeding as you will see in a moment, tear the substance of the intestinal wall because this eventually has resulted in rupture and infection of the abdominal cavity. So we are talking about a significant force that is present on the front of the abdomen. (Emphasis added.)

[27] And further (at p. 29): [16]

I think that the – that you could describe it as a heavy impact or an impact with sufficient or significant force to damage the internal structures of the abdomen that set into motion this cascade of events leading to death. [Emphasis added.]

[28] Dr. Pollanen then testified that there is no way to specifically quantify the degree of force “in terms of newtons or joules.” He also stated that there is no way to determine if the injury was caused by one blow or several; either is possible.

[29] On cross-examination, Dr. Pollanen agreed that the injury could have been caused by some object hitting the child’s abdomen or by the child’s abdomen hitting something. However, he denied that this type of injury could have been caused by a fall, even if the fall was from a height of three feet onto a fixed protuberance. He stated (at pp. 63-64): [17]

… if you’re going to posit an alternate mechanism of a child hitting something, it’s going to be energetic – body needs to be thrust into it. It’s got to be essentially a blow to the abdomen.

[30] When asked if the injury could be caused by a child falling out of his crib onto an unyielding object protruding upwards from the floor, Dr. Pollanen testified (at pp. 64-65): [18]

So two things predominately. So the first is that’s not a very energetic mechanism. So, in other words the – there’s not a lot of energy being involved in the mechanism. So there’s not – from first principle there’s not a lot of energy or force that’s being transferred into the abdomen. So – so that would be one consideration. The other consideration is that this is actually an area that has been studied in the medical literature. It’s in the medical literature you can look up – it’s – it’s literature around short falls, short falls in childhood. And what we know is that the majority of short falls in childhood are innocuous. They’re trivial. And usually the context of the discussion that we’re having right now is in – is in context of head injury where there is a pediatric short fall, and could that be an explanation for head injury because the head is a mobile object and is easily – you know – come into contact with the ground. … It’s fairly rarely put into context of abdominal injury because of the nature of the abdomen; it’s not something that can be hit against an object – you know – like a floor. [Emphasis added.]

[31] When questioned further on the body of medical literature he relied upon, Dr. Pollanen testified that these studies related to head injuries and whether they could be caused by short falls. He was not aware of any studies dealing with abdominal injuries from short falls or of any case where an abdominal injury was caused in this manner. Referring to the theory of a short fall onto an object causing the injury, he stated (at p. 74): [19]

[In] my opinion that is not a reasonable mechanism of injury, I will be delighted to see any information that would – that would cause me to reassess that, but based upon my understanding of the literature and my understanding of the autopsy findings, I would exclude that as a mechanism of injury. [Emphasis added.]

Dr. Pollanen’s Supplementary Report: January 30, 2017

[32] Dr. Pollanen testified before me on the voir dire on January 31, 2017. At that time, a supplementary report was tendered dated January 30, 2017 and entitled “Additional Information on Fatal Abdominal Trauma in the Case of Nicholas Cruz.” Dr. Pollanen states in the report that its purpose was to survey the medical literature on pediatric abdominal trauma and to address the hypothesis that an accidental short fall could have caused Nicholas’ abdominal injury. He lists and briefly summarizes six articles, offering the following conclusions:

(1) Injury of the duodenum and jejunum are commonly caused by blow(s) to the abdomen. (2) I was unable to find a case of injury to the duodenum from a short fall. (3) The fatal abdominal injuries, in this case, are unlikely to have occurred by an accidental short fall and are most likely due to a blow(s). (4) An unprecedented accident is a possible explanation for the fatal intestinal injuries, but it is improbable. This is based on reports of 3 cases out of the hundreds of children with abdominal injuries studied, that have intestinal injuries that have been documented to be caused by falls onto a projected surface (one case each of a fall onto a rock, night table, and chair). The details of the falls are not well described, i.e., the height of the fall. Furthermore, none of these cases apparently had injury of the duodenum, specified. The results of these reviews undermine an accidental alternate explanation for the intestinal injuries documented in the present case.

Testimony in Chief on the Voir Dire: January 31, 2017

[33] Dr. Pollanen testified on the voir dire. In his examination in chief, he described the various injuries he found during the autopsy of Nicholas’ body. In referring to the abdominal injury, he said there is no experimental data as to the degree of force that would have been required to cause it and he therefore could not be quantitative in describing the degree of force. All he could provide was a qualitative opinion that the degree of force was “significant” to be sufficient to damage the internal organs. He acknowledged that this threshold would be different for children because adults would have more padding and muscle in front of the intestines.

[34] Dr. Pollanen referred to his review of the medical literature, which he undertook because of the issues raised during his cross-examination at the preliminary hearing. He testified that an “unprecedented accident” was possible but that the weight of the evidence was against it. He said that in the hundreds of cases studied, there were only three where a fall had caused an internal injury of this nature and this could constitute “some evidence” to say that it was “possible.”

Testimony on Cross-Examination on the Voir Dire: January 31, 2017

[35] The first question Dr. Pollanen was asked on cross-examination was whether an accidental short fall could have caused Nicholas’ injuries. He stated that in his opinion it did not, but that it is possible it could have. He acknowledged that this was a different answer than he gave at the preliminary hearing (when he said it was not possible), and that he was now modifying his previous answer to say it was “possible in an unprecedented way, but improbable.”

[36] Dr. Pollanen acknowledged that he did not review the medical literature on abdominal injuries prior to his testimony at the preliminary hearing. At the time of the autopsy and when preparing the post-mortem report, he reviewed some literature, but only with respect to abdominal injuries caused by physical abuse. Dr. Pollanen met with the Crown on Friday, January 27, 2017 to prepare for his testimony at the voir dire, which was scheduled for Tuesday, January 31. As a result of that meeting, he started to review the medical literature on Friday, concentrating on systematic and retrospective reviews with large amounts of data. He did not do anything on it over the weekend, but said he spent most of Monday on it. He was unable to say how long he spent doing that review other than that it was “several hours.” When pressed to be more precise as to how many hours he had spent just the day before, he could only say it was “a few.” He agreed it was not a comprehensive review, but testified that in the hundreds of cases referred to in the articles he read, there were only three caused by accidental falls.

[37] In the course of cross-examination, Mr. Gorham presented Dr. Pollanen with a bound volume of 26 scholarly, published articles on abdominal trauma causing injuries to the bowels. Three of those articles had been included in Dr. Pollanen’s literature review; he had not seen the other 23. Dr. Pollanen acknowledged that these articles showed many examples of children sustaining perforations of the intestines after falls from a short height. His point, however, was that he now agreed that an accidental cause for the injuries Nicholas sustained was “possible” but that such a conclusion was misleading in light of the statistical data showing the infrequency of such injuries resulting from falls. He explained that when looking only at the abdominal trauma, it would be reasonable to say that an accidental fall was a “possible” cause, or that it “could” have happened that way. However, he stated that medicine and science have a bit more to offer than “could” based on the medical literature he reviewed on the frequency with which such injuries are caused accidentally. He explained that he approaches cases “holistically” and therefore did not focus only on the abdominal injury.

[38] Dr. Pollanen agreed that there is medical literature supporting the conclusion that perforations of the intestines can be caused by short falls and that these injuries can be fatal. However, he said that he came at the issue from the perspective that abdominal injuries are only rarely caused that way and continued to rely on the charts in the articles he reviewed showing the statistics on causes for perforated intestines in children.

[39] One of the articles relied upon by Dr. Pollanen as supporting his hypothesis is a 2005 article authored by Dr. Joanne Wood and others entitled “Distinguishing Inflicted Versus Accidental Abdominal Injuries in Young Children.” [20] The authors set out to study whether a delay in reporting abdominal injuries in children was an indicator that the injury was inflicted as opposed to accidental. They studied 208 patients, but eliminated a number of them for various reasons that would have skewed the results. That left 121 cases. Of these, 108 children sustained their abdominal injuries as a result of accidental trauma, the vast majority of which were high velocity accidents such as motor vehicle accidents. The study disclosed that of the remaining group, 31 children sustained injuries as a result of a low-velocity accident (such as a fall from less than 10 feet, bicycle crashes or household trauma) and 13 children sustained inflicted abdominal trauma. Of these 13 children, abuse was identified as the cause of the injuries by three methods: (1) the child reported that he or she had been assaulted; (2) the perpetrator confessed to the assault; or (3) there were other unexplained injuries in addition to the abdominal injury. Of the 13 cases deemed to be assault, 7 were categorized that way because of the presence of other injuries. However, even assuming that all 13 were actual cases of assault, it would appear from this study that accidental low-velocity accidents are far more likely to cause abdominal injuries than assaults, the opposite of the conclusion asserted by Dr. Pollanen.

[40] In cross-examination, Mr. Gorham took Dr. Pollanen through the Wood article in some detail, including the statistics I listed in the preceding paragraph, and then suggested to Dr. Pollanen that this study shows that abdominal injuries were more likely to be caused by low-velocity accidents than abuse. Dr. Pollanen did not accept that characterization, stating, “I’m not sure that would follow.”

[41] On cross-examination, Mr. Gorham challenged Dr. Pollanen’s characterization of the degree of force causing the injury as being “significant.” In the course of that cross-examination, he took Dr. Pollanen to numerous textbook and scholarly article references (going back to the time of Aristotle) in which references are made to injuries such as these being caused by “a slight blow,” “a seemingly insignificant blow,” “relatively minimal force,” “seemingly trivial trauma,” and “minor blunt force trauma.” Dr. Pollanen agreed that these were accurate. He explained that his use of the word “significant” means only that it has produced a “significant result” and that he was not using the word as a measurement of the degree of force. The force was “significant” only in the sense that it caused the fatal injury. Dr. Pollanen agreed with Mr. Gorham’s suggestion that sometimes the words used in a technical way by an expert might overlap with a lay person’s understanding of the word in ordinary language. Mr. Gorham then suggested to Dr. Pollanen that, to a jury, “significant blow” might be interpreted as a “really hard blow.” Dr. Pollanen rejected that suggestion, stating “not when I explain it to them.”

Re-Examination

[42] On re-examination, Dr. Pollanen stated that his opinion remains unchanged. He acknowledged that, if looking at the bowel injury alone, an accident is a possible explanation. However, he maintained that the abdominal injury Nicholas sustained occurred in the context of multiple other injuries and those must be taken into account. He referred to one of the articles he cited as a useful way of explaining the probabilities to the jury because of the table it included. [21]

Evidence the Crown Proposed to Elicit from Dr. Pollanen

[43] The Crown sought to lead evidence from Dr. Pollanen as to the cause of death, the mechanism of death and the timing of the blow to the abdomen that resulted in Nicholas’ death. The Crown also sought to lead evidence as to the nature and approximate age of the other injuries on Nicholas’ body. The defence agrees that all of this would be proper evidence.

[44] The Crown undertook not to ask Dr. Pollanen in his evidence-in-chief to give an opinion as to whether the fatal blow to Nicholas’ abdomen was caused by a deliberate assault or by an accidental fall. However, if Dr. Pollanen was asked in cross-examination about the possibility of the injury being caused accidentally, as for example by a fall onto an object, then the Crown argued that Dr. Pollanen should be permitted to give his opinion that, while an accidental cause was a “possibility,” it was improbable, and also to explain the statistical probability of this not being an assault based on the studies he has reviewed. Further, the Crown submitted that Dr. Pollanen should be permitted to base his opinion on his “holistic approach” including the presence of other injuries on Nicholas’ body.

D. ANALYSIS

Qualified Expert: Impartiality, Independence and Absence of Bias

[45] There is no doubt that Dr. Pollanen is an expert in his field. Indeed, he is one of Canada’s leading experts in forensic pathology. But no pathologist can possibly be an expert in every variable of every single cause of death that can occur in the human body. Dr. Pollanen himself recognized in his evidence and said that he read up on some of the literature on abdominal trauma prior to doing the post-mortem on Nicholas. However, in undertaking that research, Dr. Pollanen only consulted literature on assaults causing abdominal trauma in children. He did not even consider looking at the literature on other causes of intestinal injury in children. In taking this approach, there is a concern that he was predisposed to see this case as an assault and failed to keep an open mind on other possible explanations.

[46] I am sure this was an unconscious bias, but it was a bias nevertheless. I am not suggesting that Dr. Pollanen was not independent. I am not suggesting that he delivered an opinion he believed would be favourable to the police or the Crown. On the contrary, I accept that he considered himself to be completely neutral. However, he started his task with the mindset that this child had been the victim of assault and he approached everything thereafter from that mindset, including his testimony in court, and in particular his testimony at the preliminary inquiry.

[47] Prior to his testimony at the preliminary hearing, Dr. Pollanen reviewed his post-mortem report. He did no further research beyond what he had done prior to conducting the post-mortem. He was asked on cross-examination at the preliminary hearing whether a short fall by a child onto an object could cause this type of injury and he stated that this was not possible. He cited two reasons for this opinion: (1) a fall would not have been a sufficiently energetic force to generate the injury; and (2) the issue had been studied in the medical literature and the possibility of short falls was rejected. He stated (at pp. 67-68), [22] “There is no literature to support short fall related abdominal injury.” This was a rigid and dogmatic approach to have taken. Not only that, it was incorrect – there are numerous articles and studies about short fall related abdominal injury, as was demonstrated during cross-examination on the voir dire. Dr. Pollanen acknowledged during the voir dire that his answer at the preliminary was incorrect and that he should properly have said that he did not know the answer because he had not looked at the literature. What concerns me about this is the willingness of Dr. Pollanen to take an extreme and rigid position, while knowing he had not done any research to back it up.

[48] The other reason given by Dr. Pollanen for rejecting the possibility of a short fall having caused these injuries was that a short fall would not generate the degree of force necessary to cause the injury. Dr. Pollanen acknowledged, even at the preliminary hearing, that he could not measure the degree of force that would have been needed to cause the fatal injury sustained by Nicholas. Notwithstanding the fact that Dr. Pollanen knew as a scientist that it was not possible to measure the degree of force that had caused the trauma, in his evidence at the preliminary inquiry he nevertheless described it as: “a force of sufficient magnitude to be transmitted and damage tissue deep in the abdominal cavity;” [23] a force “sufficient to cause bleeding, and as you will see in a moment, tear the substance of the intestinal wall;” [24] “a significant force present in the front of the abdomen;” [25] “a significant external force;” [26] and “minimally what’s happened is a single significant blow to the front of the abdomen.” [27] However, on the voir dire, Dr. Pollanen readily accepted the numerous scholarly articles establishing that even a trivial force can cause intestinal injuries because of the dynamic by which the injuries can occur. If Dr. Pollanen was aware of these studies at the time of his evidence at the preliminary hearing, it troubles me that he did not mention that a small degree of force, even a trivial blow, could cause such an injury. An impartial witness owes a duty to the court to provide an opinion that is not slanted in one direction. Consistently describing the degree of force required as being “significant” without mentioning that a minor degree of force can in fact cause the same injury is misleading and a breach of the duty of impartiality to the court. On the other hand, if Dr. Pollanen was not aware of the medical literature about the minimal degree of force required, it troubles me that he offered the opinion he did without doing even the most rudimentary amount of research.

[49] Notwithstanding the vigorous cross-examination at the preliminary hearing in March 2015 about his testimony as to the impossibility of an accident and about the medical research supporting that view, Dr. Pollanen did no further research on the issue for nearly two years. It was only after meeting with the Crown on Friday, January 27 that Dr. Pollanen decided to look at the medical literature. Dr. Pollanen refused to say how long he spent doing this research, stating he could not be more specific than “several” hours or a “few” hours. I find this to be evasive and disingenuous given that he acknowledged the bulk of the work was done just the day before.

[50] The brief literature review Dr. Pollanen conducted on the day before he testified at the voir dire was sufficient for him to realize he needed to file a new report and to acknowledge that his testimony at the preliminary inquiry had been incorrect. However, he refused to abandon his bottom-line position, which was that this injury in this case was caused by an assault. Now, however, he based that opinion on the “improbability” of an accident having caused the injuries given the statistics on deliberate, as compared to intentional, causes of such injuries and given the other injuries on Nicholas’ body. I will return to the second point in the next section of my reasons. With respect to the first point, Dr. Pollanen simply does not have the expertise and has not done sufficient research to draw a conclusion on the statistics. Based on the research undertaken by defence counsel, it is clear that the literature shows far more than the three cases cited by Dr. Pollanen of children sustaining these kinds of injuries from short falls. Some of the studies Dr. Pollanen cited do not support his own hypothesis. Even on his own research, what he described as “three cases out of the hundreds of children studied” is not accurate; there are far more. When this was pointed out to him, he refused to acknowledge the obvious. Thus, although Dr. Pollanen is now grudgingly prepared to say that an accidental fall cannot be ruled out completely as the cause of the injury, he stands by his characterization of it as “an unprecedented accident” while adding that it is “improbable.” I find this to be an illustration of professional credibility bias – having taken a position on this issue at the preliminary hearing, Dr. Pollanen was now looking for ways to support it, rather than looking objectively at the research and autopsy findings.

Opinion as to Assault Being More Likely than Accident: Relevance and Necessity

[51] Based solely on the physical findings of the intestinal injuries that caused the death, Dr. Pollanen is able to say that the mechanism of death was either something hitting the abdomen or the abdomen hitting something. He is not able to determine, based solely on the autopsy findings, whether the blow to the abdomen was a violent or trivial force, nor is he able to determine if the blow was inflicted deliberately or accidentally.

[52] The Crown proposes to have Dr. Pollanen testify that in his opinion the injury was caused by a deliberate assault based on two factors: (1) statistically it is likely to have been an assault and improbable to have been an accident; and (2) a holistic approach would take into account the other injuries to Nicholas, which would indicate that the blow to the stomach was also deliberately inflicted.

[53] One of the greatest dangers flowing from expert opinion evidence is overreaching by the expert beyond the specific scope of his or her area of expertise. [28] By offering an opinion that the fatal blow was the result of an assault, Dr. Pollanen was overreaching. His evidence as to the likelihood of assault being the cause based on statistics he has gleaned from a limited review of the research done by others is not within his area of expertise and is irrelevant. It is not for the jury to decide whether somebody killed Nicholas based on the odds of that being the case. It is equally improper for the Crown to lead expert evidence on how likely or unlikely such a conclusion might be.

[54] In Sekhon, the accused had been convicted of importing cocaine into Canada in a concealed compartment in the truck he was driving. The accused claimed that an acquaintance had asked him to drive the truck across the border and he had no knowledge of the cocaine in the truck. At trial, the Crown led expert evidence from a police officer, Sgt. Arsenault, with respect to customs and practices in the drug trade. Sgt. Arsenault had been a police officer for 33 years and had been involved in approximately 1000 cases involving the importation of cocaine. For the most part, there was no problem with his evidence, the majority of which involved chains of distribution, methods of packaging, concealment, value and the like. However, Sgt. Arsenault also testified that in his experience of approximately 1000 investigations, he had never encountered a case in which the drug courier did not know the nature of the commodity he was transporting. The Supreme Court of Canada held that this evidence was not admissible because it was neither relevant nor necessary. Moldaver J., writing for the majority, held at para. 49:

In my view, the trial judge erred in relying upon the Impugned Testimony. The fact that Sgt. Arsenault did not personally encounter a blind courier over the course of his investigations is neither relevant nor necessary, within the meaning ascribed to those terms by this Court in Mohan, to the issue facing the trial judge — namely, whether Mr. Sekhon himself had knowledge of the drugs. The Impugned Testimony, though perhaps logically relevant, was not legally relevant because the guilt or innocence of accused persons that Sgt. Arsenault had encountered in the past is legally irrelevant to the guilt or innocence of Mr. Sekhon (see Mohan, at pp. 20-21). In other words, the Impugned Testimony was of no probative value in determining whether Mr. Sekhon knew about the cocaine in the hidden compartment. It is trite to say that a fundamental tenet of our criminal justice system is that the guilt of an accused cannot be determined by reference to the guilt of other, unrelated accused persons. Moreover, the Impugned Testimony was not necessary because determining whether Mr. Sekhon knew about the drugs is not beyond the knowledge and experience of the judge, and it is certainly not a matter that is technical or scientific in nature.

[55] Although the majority in Sekhon found the evidence to be inadmissible, they applied the curative provisions of the Criminal Code and did not order a new trial because the same result would have been inevitable even if the evidence was excluded. The two dissenting judges (Lebel J. and McLachlin C.J.C.) differed from the majority only with respect to the application of the curative provisions; they would have ordered a new trial. On the issue of the admissibility of the evidence, the dissenting judges agreed with the majority that the evidence should have been excluded. Lebel J. wrote (at para. 80):

Applying the Mohan criteria, I conclude that this line of questioning should not have been permitted. The evidence was not necessary, as it was open to the trier of fact to draw the necessary inference concerning what the appellant knew or did not know. Nor was it relevant. Sgt. Arsenault’s opinion invited the trier of fact to find that the appellant knew about the cocaine on the basis that all people driving vehicles containing hidden drugs know about the drugs. This appeared relevant only because it depended on an improper inference. Sgt. Arsenault’s opinion that other individuals he has encountered in his investigations knew they were transporting illegal drugs does not logically establish that this accused possessed the mens rea for the offences with which he was charged. In addition to usurping the court’s role in resolving the issue of guilt or innocence, the opinion depended on an unacceptable and unfair inference.

[56] The same reasoning applies to the case before me. It is for the jury (or other trier of fact) to determine whether or not the injury was caused by a deliberate assault. The physical evidence does not answer that question. The physical evidence establishes only that the fatal injury was caused by a blunt force trauma to the abdomen, which could have been from an assault or could have been from an accident, such as a fall. It is irrelevant for the Crown to present evidence that 95% of such injuries are caused by assaults (even if Dr. Pollanen’s evidence could reach that degree of certainty, which it does not). What is relevant is whether Nicholas was assaulted. In reaching its conclusion on that point, the trier of fact has a wealth of evidence to draw upon, specific to this case. The probability of this being an assault, based on what has happened in other cases, is neither relevant nor necessary to this analysis.

[57] Further, it is not Dr. Pollanen’s role to look at the other injuries on Nicholas’ body and draw an inference that since they could not all be accidental, then the blow to the stomach was also an assault. Such an opinion seriously oversteps the role of a forensic pathologist and usurps the role of the jury. The jury would have the forensic evidence of those injuries and the photographs of Nicholas’ body, along with considerable other evidence from social workers, baby sitters, friends of Ms. Cruz and statements made by Ms. Cruz and Mr. France to various people and the police. The jury does not need Dr. Pollanen’s opinion on the inferences he would draw based on only part of that evidence. There is a serious risk that a jury in that situation would rely unduly on the supposed scientific nature of Dr. Pollanen’s conclusion. In fact, Dr. Pollanen is in no better position than the jury to make that decision. Indeed, he is in a considerably less informed position as he knows nothing about the other evidence.

[58] In short, Dr. Pollanen’s opinion as to whether there was an assault is irrelevant, adds nothing, is unnecessary, usurps the role of the jury, and is highly prejudicial. It is inadmissible.

Language Used

[59] At both the preliminary hearing and in his testimony before me on the voir dire, Dr. Pollanen described the force of the blow to the abdomen as “significant.” At the preliminary hearing, although Dr. Pollanen agreed that it is not possible to actually measure the degree of force, it is clear that in using the word “significant” he was describing the degree of force used and implying that it was a violent blow of some magnitude. In the course of cross-examination at the voir dire, Dr. Pollanen acknowledged the accuracy of numerous scholarly articles and texts which state that even a minor or trivial blow can cause these kinds of internal injuries. It is not possible from examining the internal organs to know whether the blow was occasioned with a minor or major degree of force. Nevertheless, Dr. Pollanen sought to use the word “significant” to describe the blow, stating it was “significant” from a scientific point of view because it caused an injury that was “significant.” He stated his belief that if he explained the word in those terms to the jury, they would not be confused.

[60] In Abbey, Doherty J.A. held that in determining the boundaries of an expert’s opinion evidence, the trial judge may “if necessary” also set boundaries on “the language in which the expert’s opinion may be proffered so as to minimize any potential harm to the trial process.” [29] Similarly, the Goudge Report recommended that experts be required to avoid “potentially misleading expressions.” [30]

[61] I agree with Dr. Pollanen’s definition of the word “significant” in this context. This is not a situation in which his use of the word is incorrect. Nevertheless, in my view, there is a danger that lay people will misinterpret the words “significant blow” to mean “really hard blow,” notwithstanding any explanation Dr. Pollanen might give with respect to his use of the word. There is no need to describe the blow as significant, or important. The evidence will establish that the blow to the abdomen caused the injury to the intestines that, in turn, caused Nicholas’ death. The “importance” or “significance” of the blow in that sense is obvious and it does not need to be further labelled.

[62] I also have concerns with Dr. Pollanen using the expression that the injuries are “consistent with” a particular cause, such as “consistent with a violent assault” or “consistent with a fall from a low height onto a protruding object.” There is a danger that the jury would interpret “consistent with” as “having been caused by.” It would be preferable if Dr. Pollanen used language that is more generally understood, such as “it could have been caused by X” or “it is possible it was caused by Y.”

Hypothetical Questions

[63] There is no dispute as to the propriety of counsel putting hypothetical questions to an expert witness. Defence counsel submitted that such questions should not be so close to the actual facts of the case as to, in effect, be asking the expert witness for an opinion on the very facts before the court, which is the sole domain of the jury. Counsel relied in this regard on R. v. K.(A.) [31], in which the Court of Appeal referred to the Crown’s “repeated use of hypothetical questions that paralleled the specific allegations and behaviour of the individual complainants in this case.” Charron J.A. (as she then was), held (at para. 135):

In my view, this whole series of hypothetical questions and answers far exceeded any legitimate purpose for expert testimony in this case. The answers given by the expert would likely be understood by the jury not just as evidence which would help them understand these features of behaviour generally but as a further invitation to accept each complainant's evidence regardless of their conduct and notwithstanding the weaknesses of the testimony. It served to effectively mask the weaknesses of each complainant's testimony and to cloak it with a semblance of scientific reliability. Presented in this manner, the evidence was no longer admissible because its prejudicial effect far exceeded its probative value. It was obviously calculated to bolster the credibility of each complainant and as such was not the proper subject of expert testimony.

[64] The Crown agrees that this is the governing law and does not intend to ask any hypothetical questions that would offend this principle. Disputes might arise as to how the principle is to be applied in the context of a particular question. Those objections, if any, are appropriately dealt with as they arise.

E. CONCLUSIONS

[65] Dr. Pollanen is qualified to provide expert opinion evidence in the field of forensic pathology and in particular with relation to: the injuries found on the body of Nicholas Cruz at the time of autopsy; the approximate age of those injuries; the cause of death; and the possible mechanisms of death.

[66] Dr. Pollanen is not permitted to offer an opinion as to whether an assault is more likely to have caused the fatal injury than an accidental fall. Neither is Dr. Pollanen permitted to express an opinion on the probability of one cause as opposed to another.

[67] Dr. Pollanen must not use the word “significant” to describe the degree of force that caused the injury, nor should he say the injuries are “consistent with” any particular cause.

[68] I will conclude with some observations on the role of expert witnesses. Dr. Pollanen is the Chief Forensic Pathologist of Ontario, and as such commands considerable respect and deference, which is appropriate to his position and expertise. Dr. Pollanen testified in a manner that was both professional and engaging. He did not appear to be unprepared, nor did he appear to be leaning to one side more than the other. This is the problem with highly-polished expert witnesses who wander off their area of expertise or who offer opinions without any scientific basis. They appear to be knowledgeable in areas about which they have no expertise, even when they are not. Dr. Pollanen was not properly prepared for the preliminary hearing, nor for the voir dire. Notwithstanding this, he offered expert opinions on matters that were not appropriate, not within his knowledge and expertise, and incorrect. It was only as a result of extensive independent research by defence counsel and a very skilled cross-examination by Mr. Gorham that the weaknesses in Dr. Pollanen’s evidence came to light. While that is, of course, the very purpose of cross-examination, it is nevertheless discomforting that it proved to be necessary in this case.

[69] Doctors treating children and pathologists reviewing the deaths of children must be alive to the possibility of abuse. Vulnerable children need to be protected. But that protective role must not be confused with the role of an expert witness testifying in court. In my view, Dr. Pollanen blurred those roles. I have no doubt that his opinion that Nicholas died as a result of an assault is an honestly held belief. However, it is a personal belief, not one based in objective science. Dr. Pollanen is entitled to his personal beliefs. However, he owed a duty to the court to keep his personal views to himself. His duty to the court is to present only that opinion evidence which he is able to offer by virtue of his expertise as a scientist, and to be scrupulously even-handed in how he presents that evidence. Unfortunately, that standard was not met in this case.

MOLLOY J. Released: April 12, 2017

Footnotes

[1] Ms. Cruz was also charged with second degree murder, but the Crown accepted a plea of guilty to unlawful act manslaughter based on her failure to provide the necessities of life to her child. On a joint submission before Code J., she was sentenced to 6 years in prison. [2] R. v. Gardiner, [1982] 2 S.C.R. 368. [3] R. v. Mohan, [1994] 2 S.C.R. 9. [4] White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182. [5] R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal refused, [2010] 2 S.C.R. v. (note). [6] R. v. Sekhon, [2014] 1 S.C.R. 272, at para. 46. [7] Ibid, at para. 47. [8] White Burgess, supra note 4, at paras. 26-32, 45 and 52-54. [9] The Honourable Stephen T. Goudge, Inquiry into Pediatric Forensic Pathology in Ontario, Report (Toronto: Ontario Ministry of the Attorney General, 2008). [10] David Paciocco, “Taking a ‘Goudge’ out of Bluster and Blarney: an ‘Evidence-Based Approach’ to Expert Testimony” (June 2009) 13 Can. Crim. L.R. 135. [11] Ibid, at pp.136-138. The wrongful convictions of Stephen Truscott and Guy Paul Morin are two examples, as are cases involving subsequently disproven science about recovered memory syndrome, lie detector tests, hypnotically recovered memory, the presence of chemicals in hair samples and others. [12] Ibid, at pp. 150-151. [13] Ibid, at p. 151. [14] Ibid, at pp. 156-157. [15] Preliminary Hearing Transcript, March 12, 2015, at p. 23 ll. 5-14. [16] Ibid, at p. 29, ll. 28-31. [17] Ibid, at p. 63 l. 33-p. 64 l. 3. [18] Ibid, at p. 64 l. 22-p. 65 l. 11. [19] Ibid, at p. 74 ll. 12-15. [20] Joanne Wood et al, “Distinguishing Inflicted versus Accidental Abdominal Injuries in Young Children” (November, 2005) 59(5) The Journal of Trauma, Injury, Infection and Critical Care 1203. [21] Cynthia Marie Huntimer et al, “Can Falls on Stairs Result in Small Intestine Perforations?” (August, 2000) 106(2) Pediatrics 301. [22] Preliminary Hearing Transcript, supra note 15, at p. l. 30-p. 68 l.1. [23] Ibid, at p. 23, ll. 8-9. [24] Ibid, at p. 23, ll. 10-12. [25] Ibid, at p. 23, ll. 13-14. [26] Ibid, at p. 52, ll. 4-5. [27] Ibid, at p. 63, ll. 13-14 [28] Abbey, supra note 5, at para. 62; Sekhon, supra note 6, at para. 46. [29] Abbey, supra note 5, at para. 62. [30] Paciocco, supra note 10, at p. 155. [31] R. v. K.(A.) (1999), 45 O.R. (3d) 641 (C.A.), at paras. 131-135.