Court File and Parties

CITATION: R. v. Millard, 2017 ONSC 5929

COURT FILE NO.: CR-15-50000474-0000

DATE: 2017-10-04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Dellen Millard and Mark Smich

BEFORE: M.A. Code J.

COUNSEL: Tom Dungey and Jennifer Trehearne: counsel for Mark Smich Dellen Millard: representing himself Jill Cameron and Katie Doherty: counsel for the Crown

HEARD: September 29, 2017

ENDORSEMENT (ON EXPERT EVIDENCE MOTION)

[1] The accused Dellen Millard and Mark Smich (hereinafter, Millard and Smich) are jointly charged in an Indictment alleging that they committed first degree murder on the person of Laura Babcock. I have been hearing a large number of pre-trial Motions on various dates since March 27, 2017. Jury selection is scheduled to commence on October 12, 2017.

[2] On September 29, 2017, I heard a brief Motion brought by counsel for Smich relating to the scope of certain expert opinion evidence that the Crown will tender at trial. Millard was self-represented on this Motion, although he has been represented by counsel on most of the other pre-trial Motions. He adopted the submissions made by Ms. Trehearne, counsel for Smich. I reserved judgment at the end of oral argument. These are my Reasons for judgment on the Motion.

[3] The expert opinion evidence that is at issue on this Motion is in the field of forensic anthropology. The context for this evidence, in brief summary, is that Ms. Babcock is alleged to have disappeared and been murdered on or about July 3 and 4, 2012, while in the company of the two accused. Millard and Smich are alleged to have acquired and discussed the use of a large commercial incinerator, known as the Eliminator, in the period immediately prior to and immediately after Ms. Babcock’s disappearance. There is evidence that the Eliminator was then used by Millard and Smich on the night July 23/24, 2012 to cremate something. They took two photographs on Millard’s iPhone of the interior of the Eliminator while it was in use that night.

[4] There is circumstantial evidence inferring that it was Ms. Babcock’s body that was cremated in the Eliminator on July 23/24, 2012. In addition, the Crown asked two forensic anthropologists, Dr. Tracy Rogers of the University of Toronto and Dr. Katherine Gruspier of the Ontario Forensic Pathology Service, to examine the two photographs of what was burning in the Eliminator on the night in question. Their opinions, in brief summary, are that “there are visual similarities” between certain objects depicted in the photographs and “human bone.” However, they concluded that it is “impossible to be certain” because “the quality of the photos makes it very difficult to say anything definitively,” as Dr. Rogers put it in her report. The opinion of Dr. Gruspier is to much the same effect.

[5] The defence does not dispute the admissibility of this evidence, as summarized above. Ms. Trehearne conceded that the expert opinions meet the four Mohan threshold criteria for admissibility as well as the further discretionary gatekeeper balancing of costs and benefits, as set out in the authorities. Millard agreed with and adopted Ms. Trehearne’s submissions. See: R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.); R. v. Bingley (2017), 2017 SCC 12, 345 C.C.C. (3d) 306 at paras. 14-16 (S.C.C.); R. v. Shafia et al. (2016), 2016 ONCA 812, 341 C.C.C. (3d) 354 at paras. 226-233 (Ont. C.A.).

[6] The only issues concerning the expert opinion evidence that are in dispute between the parties are two narrow points, as follows:

• First, the experts sometimes use certain terms in their reports that have been criticized in the authorities. For example, Dr. Rogers uses the term “cannot be ruled out” in relation to human bones. To similar effect, Dr. Gruspier states “nor can I exclude that it may be … human bone.” The defence seeks an order directing the experts not to use these kinds of terms;
• Second, it is now apparent that Dr. Rogers will be asked to give a further opinion to the effect that the objects depicted in the photographs are not similar to deer bones. The defence submits that Dr. Rogers is not qualified to give an opinion about deer bones, based on the material filed by the Crown in the present Motion record.

[7] In my view, the first point raised by the defence is well taken but the second point is not.

[8] In relation to the first point, concerning some of the terminology used by the experts, Ms. Doherty concedes on behalf of the Crown that the modern authorities on expert opinion evidence allow the trial judge to make the kind of order sought by the defence. For example, in R. v. Abbey (2009), 2009 ONCA 624, 246 C.C.C. (3d) 301 at paras. 62-4 (Ont. C.A.), Doherty J.A. gave the judgment of the Court and stressed the importance of ruling on whether “certain terminology used by the expert is unnecessary to the opinion and potentially misleading”:

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: [citations omitted].

A 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. The procedures to be followed on that voir dire are for the trial judge to decide. Sometimes the expert must be examined and cross-examined on the voir dire to ensure that the proposed evidence is properly understood. At the conclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible. He or she will also decide whether certain terminology used by the expert is unnecessary to the opinion and potentially misleading: see R. v. G. (P.), (2009) 2009 ONCA 32, 242 C.C.C. (3d) 558 at para. 16 (Ont. C.A.). Admissibility is not an all or nothing proposition. Nor is the trial judge limited to either accepting or rejecting the opinion evidence as tendered by one party or the other. The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to frame that opinion: see, for example, R. v. Wilson, (2002), 2002 CanLII 49653 (ON SC), 166 C.C.C. (3d) 294 (Ont. S.C.J.).

The importance of properly defining the limits and nature of proposed expert opinion evidence and the language to be used by the expert is one of the valuable lessons learned from the Inquiry into Pediatric Forensic Pathology in Ontario. [Emphasis added.]

[9] I agree with Ms. Trehearne that terminology such as “consistent with,” “cannot be excluded,” and “cannot be ruled out” suffers from at least three failings. First, it is a form of scientific jargon and the latter two formulations are also framed as a negative. The experts themselves are familiar with and tend to understand this terminology, but the lay juror may be confused as to its true meaning. Second, it is arguably an unbalanced and unfair way to formulate the opinion as it states only one side of the conclusion — i.e., that the expert “cannot exclude” a certain proposition without saying at the same time that the expert cannot definitively “include” that proposition. Third, it is unnecessary because there are straightforward and understandable ways of formulating the opinion. For example, the expert could say that the objects depicted in the photographs “may or may not” be human bones or could simply state a positive, namely that “there are visual similarities” to human bones, as Dr. Rogers ultimately opined in her report. See: R. v. Bennett (2003), 2003 CanLII 21292 (ON CA), 179 C.C.C. (3d) 244 at paras. 50-53 (Ont. C.A.); Report of the Commission on Proceedings Involving Guy Paul Morin, 1998 by the Honourable Fred Kaufman, at pp. 311-315 and Recommendation 10; Report of the Inquiry into Pediatric Forensic Pathology in Ontario, 2008 by the Honourable Stephen Goudge, Recommendation 99(a).

[10] I did not understand Ms. Doherty to defend the use of terminology such as “cannot exclude” or “cannot be ruled out.” She simply submitted that, in this particular case, there was no risk of confusion concerning the experts’ use of these terms because they always went on to add that they could not “be certain” or that they were unable to be “definitive.” This is likely a sound argument, ex post facto, if one of the experts happens to slip up and lapses into the impugned terminology. I doubt that it would do any real harm in this particular case and it can easily be stopped and corrected. However, that is not a justification for allowing such terminology, ex ante, which is the stage that we are at.

[11] For all these reasons, the first order sought by the defence is granted.

[12] The second point raised by the defence concerns Dr. Rogers’ opinion about deer bones. In her original report, it was somewhat unclear whether Dr. Rogers was proffering an opinion about deer bones. It was implicit in the report that she was proffering such an opinion because she included certain photographs and data about deer bones, which illustrated the differences between human bones and deer bones. Once Smich filed his Motion materials, challenging Dr. Rogers’ expertise in this area, the Crown filed supplementary materials making it clear that Dr. Rogers is giving an opinion that the objects in the photographs are “much smaller than” and “a different shape from and … larger than” the equivalent deer bones. In other words, her opinion is that the objects are “similar” to specific human bones and “dissimilar” to the equivalent deer bones. The relevance of this opinion is that Millard told the Crown witness Shane Schlatman that he had used the incinerator to dispose of deer carcasses found on his farm property.

[13] Ms. Trehearne submits that neither Dr. Rogers’ C.V., nor the supplementary material filed by the Crown on this Motion, establishes Dr. Rogers’ expertise in relation to deer bones. I disagree. The meaning of the particular Mohan criteria requiring a “properly qualified expert” is set out in Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4th edition [LexisNexis Canada Inc. 2014] at pp. 822-3:

The proffered expert witness must possess special skill, knowledge or experience which is likely to be outside the knowledge or experience of the fact-finder. The expert’s usefulness in this respect is circumscribed by the limits of her or his skill, knowledge and experience.

The proponent of the expert evidence must satisfy the trial judge that the proffered expert witness acquired special or peculiar knowledge through study or experience in respect of the subject matter of the opinion. The witness’ expertise must be in the particular field in which the witness’ opinion is sought and the expert’s evidence should be confined to her or his area of expertise to minimize its potential for misuse or confusion. The admissibility of expert evidence does not depend upon the means by which that skill was acquired. As long as the trial judge is satisfied that the witness is sufficiently experienced in the subject matter at issue, the judge will not be concerned with whether the expertise was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence.

See: R. v. Marquard (1993), 1993 CanLII 37 (SCC), 85 C.C.C. (3d) 193 at 224 (S.C.C.); R. v. Bingley, supra at paras. 19 and 22; R. v. M.C. (2014), 2014 ONCA 611, 314 C.C.C. (3d) 336 at paras. 98-100 (Ont. C.A.).

[14] I am satisfied that Dr. Rogers has expertise in relation to animal bones (including deer bones), acquired through both study and experience, that goes well beyond the knowledge and experience of a lay juror. While her primary focus is the “analysis of human skeletal remains,” her C.V. indicates that she has frequently given opinions about “non-human” remains. The supplementary material, filed by Ms. Doherty on the Motion, indicates that Dr. Rogers was the lead forensic anthropologist retained on the Pickton Case in British Columbia. In that case alone, she examined “over 40,000 animal bones” of which “most were cow and pig but there were a variety of other animals.” She states that she must be “familiar with various animal bones,” in order to distinguish them from human bones, and so she has developed “extensive experience comparing human bone to various animal bones.” She estimates that about “27% of all forensic anthropological case work involves animal bone (which means doing analyses to determine that the bone is animal and not human).” In addition to this practical experience, she teaches her students “how to distinguish animal from human bone.” In preparing these lectures, she has “researched various animal bones … commonly encountered in Canada (including bear, deer, and pig) and highlighted criteria that could be used to tell them apart.”

[15] Although I am presently satisfied that Dr. Rogers meets the Marquard test for expertise, she did not testify before me on the Motion. In addition, the written materials filed on the Motion do not specify precisely how much study and experience she has with deer bones. Given that Dr. Rogers will be testifying at trial, in any event, the issue of her expertise in relation to deer bones can be quickly explored on a voir dire at that time, assuming the defence is still raising the issue.

[16] In the result, the two expert forensic anthropologist witnesses are directed not to use terminology such as “consistent with,” “cannot exclude,” and “cannot rule out.” Otherwise, their opinions are admissible, including Dr. Rogers’ opinions concerning deer bones. A short voir dire can be held at trial, concerning Dr. Rogers’ expertise in relation to deer bones, if the defence is still challenging her expertise in that area.

M.A. Code J.

Date: October 4, 2017