Court File and Parties
COURT FILE NO.: 8535-13 DATE: 20170403 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – KENNETH JOHNSON Defendant
Counsel: Peter Westgate and Michael Ventola for the Crown Mary Cremer and Colin Sheppard for the Defendant
HEARD: April 3, 2017
Ruling on Defence Request to File Expert’s Report
RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Boswell J.
The Issue
[1] Almost invariably, the Crown’s evidence in homicide trials will include the testimony of a pathologist. In this case a pathologist gave evidence as part of the Crown’s case. Another pathologist gave evidence on behalf of the defence. They agreed on certain things, including the cause of death. They disagreed on other things, including, most significantly, the timing of many of the injuries observed on autopsy. Defence counsel wants to file her pathologist’s report as a numbered exhibit. The Crown opposes. This brief ruling explains why I am not prepared to accept the expert’s report in evidence.
The Death of Mr. Skupien
[2] Mr. Johnson is being tried for the murder of his roommate, Richard Skupien. The Crown takes the position that Mr. Johnson held an animus towards Mr. Skupien and that he beat him to death on August 23 or 24, 2013.
[3] Mr. Skupien died of cardiac arrest at 1 p.m. on August 24, 2013. His heart stopped beating because it more or less ran too low on blood. He bled out into his abdomen from a ruptured spleen. He had bruising on his face, as well as other parts of his head and body. He also had two fractured ribs on the left side of his rib cage, near enough to the spleen that it is quite possible that the same blow that caused the ribs to break also injured the spleen.
[4] A witness reported seeing Mr. Skupien walking down a flight of stairs carrying a sizeable piece of plywood at about 9 p.m. on August 23, 2013. An available inference is that he did not have broken ribs and a ruptured spleen at that time. He was reported by Mr. Johnson to have been found without vital signs at about 9 a.m. the next morning. The Crown posits that Mr. Johnson assaulted him at some point between those two times.
[5] Dr. Noel McAuliffe conducted the post-mortem examination on the body of Mr. Skupien. He testified that, in his opinion, Mr. Skupien died of a splenic rupture that was caused by a severe beating.
[6] There is no dispute in the evidence that Mr. Skupien died of an intra-abdominal bleed; the result of a rupture of his spleen. What is very much in issue, however, is the cause of that rupture. Mr. Skupien was an incorrigible alcoholic. He was prone to falling down and to falling off his bicycle, which was his primary mode of transportation. He was often cut and/or bruised. He was a frequent flyer in the local hospital emergency room and in the office of his family physician. It would surprise no one if he seriously injured himself through misadventure.
The Defence Pathologist
[7] The defence presented its own expert pathologist, Dr. Michael Shkrum, who critiqued Dr. McAuliffe’s work and offered some opinions of his own. A good portion of his evidence related to the methodology used, or not used, by Dr. McAuliffe; in particular the lack of sufficient microscopic examination of Mr. Skupien’s numerous wounds.
[8] Dr. Shkrum gave detailed evidence about the body’s inflammatory response to injury and how experts use the response, seen at the cellular level, to aid in aging injuries. His evidence may support a finding that at least some of the bruising on Mr. Skupien’s face may have occurred within 24 hours of his death, but that the injuries to his spleen and/or ribs were older than 24 hours. Such a finding may cast doubt on Mr. Johnson’s participation in those injuries and may increase the likelihood of an acquittal.
The Report
[9] When his evidence was concluded, defence counsel asked to mark Dr. Shkrum’s report as a numbered exhibit. The Crown opposed. Argument on the issue went over to the pre-charge conference, which was held today.
[10] Dr. Shkrum’s report is twelve pages in length. It provides a summary of the materials he had to review, sets out his qualifications, then describes the circumstances of Mr. Skupien’s death. He then reviews the findings on autopsy, providing his own comments where he had concerns about methodology, descriptions, or limitations. He provides a list of injuries he observed on autopsy photos that were not noted by Dr. McAuliffe, then notes that he otherwise agrees with Dr. McAuliffe’s conclusion regarding cause of death. Finally, he provides, in summary form, a list of ten conclusions he reached.
[11] I note that Dr. Shkrum gave evidence over a little more than two days. He spent considerable time going over his ten conclusions with the jury – reading them slowly and repeating them to ensure comprehension.
[12] Ms. Cremer’s position was that the report was a fair, evidence-based document, free of bald or unsupported conclusions. It covered the substance of Dr. Shkrum’s evidence in a dense and scientifically complicated area. It would be of great assistance, she submitted, to the jury in recalling, appreciating and considering his evidence.
[13] The Crown was unpersuaded to withdraw their objection.
Discussion
[14] Experts’ reports are not, by convention, filed as evidence. That is not an absolute prohibitory rule, but it is generally followed.
[15] There may be a number of valid reasons supporting the convention. Experts’ reports are, in essence, prior consistent statements, with all the attendant baggage that goes along with them. It is also not the practice to provide the jury with transcripts or summaries of the evidence of certain witnesses and not others. Filing experts’ reports as exhibits would do just that. It would have the effect of emphasizing the evidence of the experts, even though juries are repeatedly told they are just like any other witness.
[16] In this case, I agree with defence counsel that filing Dr. Shkrum’s report may make it easier for them to recall parts of his evidence. But I have two principal reasons for not providing the jury with the report.
[17] First, while the report would be a helpful and handy reminder of some of Dr. Shkrum’s evidence, it would not be a helpful reminder of it all. By this I mean that the report may be a reasonable summation of his evidence-in-chief, but it does not capture the evidence that came out in cross-examination. If his report went into evidence, it would only be fair that a transcript of his cross-examination went into evidence so that the jury would have a fair and balanced record to review. For obvious reasons, I am not about to order the preparation of a transcript of Dr. Shkrum’s cross-examination.
[18] Second, I am concerned about overemphasizing the science behind the aging of injuries. Both pathologists who testified were very clear that the methods they use to age injuries are not precise. They are subject to interpretation and are highly variable across individuals. They provide ranges at best. It is up to the jury to assess the pathology evidence in light of all of the other evidence – direct and/or circumstantial – touching upon the live issues in the case, such as causation, timing and identity.
[19] In my view, filing the report of Dr. Shkrum may tend to emphasize the science of aging injuries, but in the absence of the express caveats about the limits of the helpfulness of the evidence. There is a risk of misuse.
[20] While I am satisfied that the report may be of some assistance to the jury, its helpfulness is outweighed in this instance by the concerns I have expressed. Moreover, I am satisfied that the jury had a fulsome opportunity to listen to and make notes of Dr. Shkrum’s evidence. I am confident they will understand it and the science. In the result, I am not prepared to receive and mark Dr. Shkrum’s report as an exhibit.