COURT FILE NO.: CRIMJ(P) 1987/16
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
C. Coughlin and V. Aujla, Crown Counsel
RESPONDENT
- and -
PRABHJEET SINGH
L. Salloum, Counsel for Prabhjeet Singh
ABHIJEET NAGRA
R. Gadhia, Counsel for Abhijeet Nagra
DILSHER SINGH
N. Rozier and K. Perchenok, Counsel for Dilsher Singh
APPLICANTS
HEARD: February 23rd and 26th, 2018
REASONS FOR DECISION- QUESTIONING OF CROWN EXPERT
LEMAY J.
[1] The three accused in this case are each charged with one count of unlawful act manslaughter. The charges arise out of an incident that took place on March 6th, 2015 at Fresh Line Foods.
[2] Early in the morning of March 6th, 2015, the three accused and the deceased, Gurvinder Singh, were all working at Fresh Line as cleaners on the night shift. They were using water hoses and other tools to clean the machinery in the plant.
[3] There was an interaction between the three accused and the deceased, in which two of the accused held Gurvinder Singh down, and the third accused, Mr. Prabhjeet Singh put an air hose near the posterior of Gurvinder Singh. Injuries resulted. Although Gurvinder Singh was treated in hospital, including undergoing several surgeries, he succumbed to his injuries on March 18th, 2015.
[4] An autopsy was performed by Dr. Rebekah Jacques of the Centre for Forensic Sciences. During the course of the trial, Dr. Jacques was qualified as an expert witness on consent, in the area of forensic pathology.
[5] In the course of cross-examination, Dr. Jacques was asked about an article that she had reviewed entitled "Rupture of the Colon by Compressed Air". In particular, Mr. Salloum (counsel for Prabhjeet Singh) wanted to ask Dr. Jacques whether she accepted the statement in the article that "This accident is not uncommon, because the public is not aware of the fact that a compressed air jet is a lethal weapon." In arguing that I should permit this question to be asked, Mr. Salloum relied on the principles set out in R. v. Marquard ([1993] 4. S.C.R. 223).
[6] The Crown objected to this question. As a result, I conducted a voir dire in the middle of Dr. Jacques' testimony in order to ascertain further details about the article, which was marked as a lettered exhibit on the trial, as well as what Dr. Jacques' testimony about this article would be.
[7] Having heard the evidence on the voir dire as well as argument from the parties, I advised the parties that neither the passage from the article nor the questions could be put to Dr. Jacques for written reasons to follow. These are those reasons.
The Evidence
[8] During the course of the voir dire, it became clear that the article that Mr. Salloum was seeking to use in cross-examination was published in 1942. It is based on a paper that was presented to the Buffalo, New York, Medical Society on December 7th, 1939.
[9] Dr. Jacques testified that she has been trained on how to recognize reliable authorities. She also testified that she accepted that this particular journal article was relevant. However, Dr. Jacques also testified that she was not aware of what the public was thinking in 1942, that the question of what the public was thinking was not within her expertise, and that she did not rely on the journal article on this point.
[10] There was no other evidence before me as to what research, if any, the comment in the article that "[t]his accident is not uncommon, because the public is not aware of the fact that a compressed air jet is a lethal weapon" is based on.
The Positions of the Parties
[11] Mr. Salloum argued that he should be entitled to put this question to Dr. Jacques, as the passage was from an article that she had accepted as authoritative. He also argued that the state of knowledge about air hoses amongst the general public was a key part of the conclusions in this particular case. In terms of prejudice, Mr. Salloum argued that, since we had conducted the voir dire, and knew what Dr. Jacques' answer would be, there was no prejudice in asking the question. Finally, in terms of the age of the article, Mr. Salloum argued that it was entirely possible that the general public was more aware of the dangers of air hoses in 1942 than they are now, because both upstate New York and Southern Ontario had a larger industrial base at that point in time than they do now.
[12] Ms. Gadhia adopted Mr. Salloum's submissions. Ms. Rozier argued that Mr. Salloum should be permitted to put the question to Dr. Jacques, but that he should be stuck with the answer that was provided.
[13] Mr. Coughlin argued that this question should not be permitted as it is prejudicial to the Crown, it is only being asked in order to put the passage from the article into the minds of the jury and it has no probative value as it will not be adopted by the witness.
Law and Analysis
[14] Mr. Salloum argued that the passage in Marquard about the uses of journal articles in cross-examining experts was relevant in this case. In Marquard, McLachlin J. (as she then was) stated (at paragraph 56):
The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is "no", or if the witness denies the work's authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is "yes", and the witness acknowledges the work's authority, then the witness has confirmed it by the witness's own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case. This procedure was laid out in R v. Anderson (1914), 1914 CanLII 361 (AB CA), 22 C.C.C. 455 (Alta. S.C.) and has been followed by Canadian courts. (See Holland v. Prince Edward Island School Board Regional Administrative Unit #4 (1986), 1986 CanLII 178 (PE SCTD), 59 Nfld. & P.E.I.R. 6 (P.E.I.S.C), at pp. 21-22; Cansulex Ltd. v. Reed Stenhouse Ltd. (1986), 70 B.C.L.R. 189 (B.C.S.C), at p. 193).
[15] I provided the parties with an opportunity to obtain additional case-law. While they have provided me with some cases, there were none that were directly on point. There are two, however, that are worth reviewing.
[16] First, there is the decision in Ahousaht Indian Band v. Canada (Attorney General) (2009 BCSC 1494, [2009] B.C.J. No. 2155 (B.C.S.C.)). In that case, the Court was dealing with various experts in archaeology, anthropology, and other disciplines in assessing an aboriginal claim for fishing rights. In that case, the Court accepted that the opinions of scholars who did not testify could become evidence if those opinions were adopted by the experts as authoritative, and read into evidence.
[17] The problem with applying this approach to the journal article in this case is twofold. First, the public perception of air hoses is not something within Dr. Jacques' expertise. Second, Dr. Jacques would not have adopted the passage in the paper, so there would not have been any actual evidence from anyone before the jury. All the jury would have is an unadopted statement from a journal article, with no context, asked as a question. Questions are not evidence.
[18] I was also referred to Ault v. Canada (Attorney General) ((2007) 50 C.P.C. (6th) 316 (Ont S.C.J.)). In that decision, an actuary was testifying about the Plaintiff's claim for damages based on pension loss. During cross-examination, one of the Defendants sought to adduce evidence from the expert about the duty of care that actuaries owe. This was evidence that was beyond the scope of the report that the expert had filed. As a result, the Court found that undue prejudice would be caused by permitting testimony in this new area.
[19] This case has two distinguishing features. First, it deals with the civil law, and the specific rules for expert reports under the Rules of Civil Procedure. Second, it deals with an expert who is asked to go beyond the scope of his report. In this case, the expert is being asked about a paper that is cited in her report.
[20] However, I am still of the view that the question Mr. Sallloum seeks to ask should not be permitted for three reasons. First, the journal article is eighty years old. While it is still probably useful for its discussion of human anatomy, public perceptions of a whole number of issues have changed significantly in the last eighty years. As a result, the article is of very limited reliability in terms of any information it may have about the knowledge of the general public in 2015, when the events covered by the charges took place.
[21] Second, Dr. Jacques testified in the voir dire that she was not an expert in public perceptions, and did not rely on the journal article for the purpose of opining on public perceptions of the dangers of air hoses. When the passage from Marquard, supra is considered, it suggests that the expert must acknowledge the work's authority before it is introduced into evidence. It would appear that the Marquard test is not met in this case as Dr. Jacques does not have the expertise to comment on this issue.
[22] However, the defence argues this was a journal article that was quoted in Dr. Jacques' report and, as a result that Dr. Jacques has already acknowledged its authority. I disagree. Dr. Jacques was clear that she did not rely on the paper for its comments on the dangers of air hoses. It is perfectly reasonable for an expert to rely on a part of a paper, and not be able to comment on or adopt another part of the same paper.
[23] Dr. Jacques is not able to comment on the authority of this statement in the article. It is beyond her area of expertise, and should not be the subject of questions put to her.
[24] This brings me to the third issue, which is the prejudice associated with asking this question. Defence counsel argues that, since Dr. Jacques is not going to adopt the passage, there is no prejudice in asking her the question. Crown counsel disagrees, and argues that the entire reason that the defence is seeking to ask the question is to have the quotation from the article in the minds of the jury.
[25] I agree with the Crown on this point. There is clear prejudice in asking this question before the jury. It is designed to suggest to them that medical science has concluded that the public does not know about the risks associated with air hoses. As a result, the jury might very well conclude that a reasonable person would not foresee the harm that would be caused by using the air hose in the manner that the accused used it.
[26] In my view, the question is designed to influence the jury's thinking in an improper way. In addition, it is a question that is asked of a witness who has no expertise in public perceptions and cannot answer the question, and is based on a journal article from the early 1940's. It has no probative value and a significant prejudicial effect.
[27] For these reasons, the question was not permitted.
LEMAY J
Released: April 5, 2018
COURT FILE NO.: CRIMJ(P) 1987/16
DATE: 2018 04 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
RESPONDENT
- and -
PRABHJEET SINGH, ABHIJEET NAGRA and DILSHER SINGH
APPLICANTS
REASONS FOR JUDGMENT
LEMAY J
Released: April 5, 2018