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 21st, 2018
REASONS FOR DECISION- MOTION TO PERMIT EXPERT EVIDENCE
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, a company that processes fresh fruit and vegetables.
[2] Early in the morning of March 6th, 2015, the three accused and the deceased, Gurinder 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] An interaction took place between the three accused and Mr. Gurinder Singh involving a high pressure air hose. Mr. Gurinder Singh was injured, and succumbed to his injuries.
[4] Counsel for one of the accused, Mr. Prahbjeet Singh, brings a motion to have the expert evidence of Dr. Chun-Yip Hon heard by the jury. Dr. Hon is an expert in occupational health and safety.
[5] On this motion, I did not have any viva voce evidence. Instead, on agreement, the parties filed the Curriculum Vitae of Dr. Hon, along with his report and attachments. These were marked as lettered exhibits in the trial.
[6] I dismissed the motion to admit this evidence from the bench on February 23rd, 2018, with written reasons to follow. The one exception was with respect to the three points on page 6 of Dr. Hon’s report. For those, I ruled that it was necessary to hear the evidence from the Crown’s pathologist before making a decision on whether those points could be the subject of evidence from Dr. Hon. After hearing from the pathologist, I determined that none of these three points could be the subject of evidence from Dr. Hon, again with written reasons to follow. What follows are my written reasons.
The Proposed Expert
[7] Dr. Hon has a number of academic qualifications and degrees, culminating in a PhD from the University of British Columbia in Occupational and Environmental Hygiene. He was an Assistant Professor at Ryerson’s School of Occupational and Public Health between August of 2012 and May of 2017. He was then promoted to his current position as Associate Professor in May of 2017.
[8] Dr. Hon has published widely on the subject of occupational health and safety. His research has addressed various sectors of the economy, but has an emphasis on the health care sector.
[9] The Crown suggested that Dr. Hon may not be qualified to give expert evidence with respect to the issue of the safety of air hoses. However, not much argument was focused on this issue.
The Proposed Expert Evidence
[10] As I have noted, I had the opportunity to review the report that was prepared by Dr. Hon. This report sets out a summary of his anticipated evidence, and addresses six different areas:
a) The general duties of employers under the Occupational Health and Safety Act R.S.O. 1990 c.O.1 (“OHSA”).
b) The specific legal requirements to train workers under the OHSA, and the effect of training workers.
c) The uses of compressed air in industrial settings.
d) The hazards of compressed air. This section of the report set out, inter alia, five examples of workplace injuries resulting from compressed air.
e) The legal requirements of employers with respect to compressed air under the OHSA.
f) Best practices of employers with respect to the use of compressed air.
[11] In his argument, Mr. Salloum focused on two aspects of this report that he argued were of critical importance in this case. First, there is the impact that training and signage have on workplace safety in general. Second, the nature of compressed air as a workplace hazard.
[12] At the time that my ruling was made, I did not have all of the evidence that will be called. I have evidence from management of Fresh Line Foods as well as from Just N Rush outlining what training was (and was not) performed. Both Mr. Brigido, of Fresh Line Foods, and Mr. Harjinder Jhaj of Just N Rush testified that training was not provided on the hazards associated with compressed air. Mr. Brigido also testified that there were no signs in the Fresh Line facility warning of any risks associated with compressed air.
[13] There was some suggestion that some of the evidence sought to be elicited from Dr. Hon could be elicited from the pathologist that is going to testify as the likely last witness in the Crown’s case. It was for this reason that I waited until the jury had heard from the pathologist before determining whether some of the evidence was admissible.
The Positions of the Parties
[14] Mr. Salloum argues that the evidence of Dr. Hon is both relevant and necessary. He argues that, in deciding this case, the jury will have to consider both how harmful compressed air is and whether its risks are obvious to the reasonable person in the circumstances of the accused. Finally, he argues that there is evidence before the jury about the harm caused by compressed air, and that Prabjheet Singh should be able to rebut this evidence. Otherwise the jury may fall into error about the nature of compressed air as a workplace hazard.
[15] Mr. Coughlin, on behalf of the Crown, opposes this application on the basis that the evidence is neither necessary nor relevant. On the Crown’s theory of the case, the central issue is whether a reasonable person, in the circumstances of this case, should have realized that the application of the air hose could cause bodily harm that is beyond transitory or trivial. In light of that question, which is determined on an objective standard, the proposed expert evidence will not assist the jury in determining the answer. Indeed, the proposed expert evidence will distract the jury and introduce a number of collateral and irrelevant issues to the trial.
[16] In addition, I asked counsel for both of the other accused to address two specific questions. First, whether this expert evidence could be applied by the jury to their accused; second, whether they saw any prejudice in the admission of this proposed expert evidence.
[17] In response to the first question, both Ms. Gadhia and Ms. Rozier acknowledged that this evidence could affect their clients. In response to the second question, Ms. Gadhia said, in essence, that she did not believe that Dr. Hon’s evidence was necessary, but that it was not her place to seek to have it excluded.
[18] Ms. Rozier took the position that the evidence of Dr. Hon was of very limited probative value, and would be outweighed by the prejudicial effect of having the jury hear this evidence. Ms. Rozier stated that the prejudice in this case of receiving the information would be that it could obscure the factual evidence that was already before the jury, and result in confusion for the jury.
[19] In reply, Mr. Salloum argued that it was inappropriate for Ms. Rozier to be taking a position against admitting the evidence. Mr. Salloum argued that Ms. Rozier and her client had been well aware of this report for some time, and should have set out her position much earlier than on the argument of the motion. Mr. Salloum seemed to suggest that this was a breach of Ms. Rozier’s obligations to the Court.
[20] I disagree with Mr. Salloum’s reply submission for two reasons. First, Ms. Rozier was invited to take a position by the Court during the course of oral argument. I specifically asked her the two questions because the admission (or non-admission) of Dr. Hon’s report has the potential to affect the defence offered by Ms. Rozier’s client. Second, the materials for this application were only filed in Court by Mr. Salloum the day before it was argued.
The Applicable Law
[21] The leading case on the admissibility of expert evidence is White Burgess Langille Inman v. Abbott and Haliburton Co. (2015 SCC 23, [2015] 2 S.C.R.182). This decision builds on, and clarifies the principles first articulated in R. v. Mohan (1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9) and in R. v. Abbey ((2009) 2009 ONCA 624, 97 O.R. (3d) 330).
[22] Mohan sets out four criteria that a Court must consider in weighing the admissibility of expert testimony, as follows:
a) Relevance
b) Necessity in assisting the trier of fact
c) The absence of any exclusionary rule, separate and apart from the opinion rule itself.
d) A properly qualified expert.
[23] For the purposes of this case, none of the parties provided any significant argument on point (c). I do not see any exclusionary rule, other than the opinion rule, that would apply to exclude this evidence and will not consider that point further.
[24] White Burgess adopts, with very minor modifications (see paragraph 22), the analytical approach used by the Ontario Court of Appeal in Abbey. It divides the admissibility inquiry into two distinct steps. In the first step, the Court considers the Mohan criteria, which are the threshold requirements for admissibility. Then, at the second step, the judge is required to balance the potential risks and benefits of admitting the evidence.
[25] The approach that a trial judge should adopt at the second stage of the process is set out in White Burgess, where Cromwell J. stated (at paragraph 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 the “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.
[26] In deciding whether expert evidence should be admitted, the burden of proof lies on the party seeking to adduce the expert evidence on a balance of probabilities.
[27] I will now address the application of this test to the proposed evidence in this case.
Applying the Law
[28] I am required to consider the Mohan criteria that are in dispute, and then assess the evidence as a whole to determine whether it is admissible. I will review the three Mohan criteria that are in issue in this case, and then address the assessment of the evidence as a whole.
a) Relevance
[29] For expert evidence to be admissible, it must be both logically and legally relevant. As noted in White Burgess, supra. (at paragraph 23, citing R. v. Abbey), the Court is only concerned about logical relevance at the first stage. Legal relevance, or probative value, is addressed at the second stage.
[30] In this case, the evidence is logically relevant in that it would outline both the dangers of compressed air, which caused the mortal injuries in this case, and it addresses the issue of what is known in the workplace about these risks. I will address the legal relevance of this evidence at the second stage.
b) Necessity
[31] Mr. Salloum argues that this evidence is necessary because the jury requires context for its consideration of the issues in this case. Dr. Hon’s proposed testimony would inform the jury about the general knowledge in the community about the hazards associated with compressed air, as well as the need for training to educate people.
[32] Mr. Salloum argues that, if Dr. Hon’s evidence is accepted, it logically follows that employers have found it necessary to provide training and signage in relation to compressed air and that the employees being trained are reasonable people. As a result, Mr. Salloum argues that, absent training and/or warnings, the risk of injury in relation to the use of compressed air is not objectively foreseeable.
[33] There are a number of problems with Mr. Salloum’s position, some of which will be dealt with in the balancing section of the test.
[34] However, at this stage of the test, it is important to note that half of the topics I have summarized in paragraph 10 relate to occupational health and safety law, and the provisions of the OHSA. Where a point is a matter of law, the better approach is to provide a jury instruction on the point, rather than permitting expert testimony on it (see R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275 at paragraphs 64 to 67).
[35] Indeed, as the Federal Court has noted in Eurocopter v. Bell Helicopter Textron Canada Ltee. (2010 FC 1328), while expert evidence may be required for international law, it is not admissible with respect to domestic law. While White Burgess was decided after the Eurocopter decision, I see no reason to deviate from this principle.
[36] Further, the problems associated with permitting questions of law to be the subject of expert evidence are clear. If an expert testifies about a legal principle, then he or she is subject to cross examination and one side (or the other) can dispute those principles in their arguments. This runs contrary to our system where the judge is the trier of law, and the jury is the trier of fact. Disputes over what the law is are to be resolved by the trial judge, and the jury is to be given one instruction on the law.
[37] Mr. Salloum argues that the expert should be permitted to testify about the issues of law because the evidence will provide context for the expert’s testimony about the issues of fact. I reject this argument. As I have noted above, witnesses, even experts, are not permitted to testify about domestic law. If factual evidence requires legal context, that context is provided in the charge to the jury.
[38] As a result, I find that the proposed expert evidence relating to the law of occupational health and safety and the provisions of the OHSA is not necessary and, therefore, not admissible. I will not reference these portions of the proposed expert evidence in the remainder of my reasons.
[39] I have other concerns about the necessity of the factual evidence contained in the expert’s report. However, those concerns are best addressed in the second stage of the test.
c) Qualifications of Dr. Hon
[40] Mr. Coughlin argued that Dr. Hon did not appear to be qualified to provide testimony about compressed air, as there was no evidence on his resume that he had any experience with compressed air.
[41] Mr. Prabhjeet Singh is seeking to call Dr. Hon as an expert in occupational health, and he has considerable expertise in this area. In my view, the concerns that the Crown has about Dr. Hon’s specific experience in dealing with compressed air relate more to the factual information contained in the report itself, and are better addressed in the balancing section.
d) The Balancing
[42] The second step of the White Burgess test involves balancing the probative value and prejudicial effect of the evidence. Probative value deals with two questions. First, is the evidence legally relevant. Second, is the evidence necessary to assist the trier of fact.
[43] Then, there is the prejudicial effect of the evidence. There is both moral and reasoning prejudice. I will assess the prejudicial effect of the evidence once I have considered its probative value.
Probative Value
[44] In order to understand whether the evidence has probative value (or is legally relevant), the charge that the accused are facing must be considered. It is a charge of unlawful act manslaughter under section 236 (b) of the Criminal Code.
[45] In order to be convicted of this charge, the jury must find, beyond a reasonable doubt, that the accused committed an unlawful act, and that unlawful act was dangerous. The expert’s evidence is focused on the second part of the test: whether the acts performed by the accused, and particularly the use of the air hose, were dangerous.
[46] In order to be dangerous, a reasonable person, in the same circumstances, would realize that using the air hose in this manner would likely put another person at risk of bodily harm. Bodily harm is harm that is neither trivial or transitory (see, for example, R. v. Groulx 2013 ONCA 690 at paragraph 17).
[47] The key point in assessing whether the conduct of using the air hose was dangerous will come when the jury is asked to determine whether the accused had the mens rea to commit the offence. In answering this question, the jury will have to consider what a reasonable person, in the same circumstances, would have done.
[48] For a charge of manslaughter, the test of what a reasonable person, in the same circumstances, would have done, is set out by McLachlin J. (as she then was) in R. v Creighton (1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3). In explaining the nature of the objective test, she stated (at paragraphs 119 and 120):
I agree with the Chief Justice that the rule that the morally innocent not be punished in the context of the objective test requires that the law refrain from holding a person criminally responsible if he or she is not capable of appreciating the risk. Where I differ from the Chief Justice is in his designation of the sort of educational, experiential and so-called “habitual” factors personal to the accused which can be taken into account. The Chief Justice, while in principle advocating a uniform standard of care for all, in the result seems to contemplate a standard of care which varies with the background and predisposition of each accused. Thus an inexperienced, uneducated, young person, like the accused in R v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, could be acquitted, even though she does not meet the standard of the reasonable person (reasons of the Lamer C.J., at pp. 145-146). On the other hand, a person with special experience, like Mr. Creighton in this case, or the appellant police officer in R v. Gosset, supra, will be held to a higher standard than the ordinary reasonable person.
I must respectfully dissent from this extension of the objective test for criminal fault. In my view, considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails.
[49] It is clear that this test is a single, uniform test that does not take into account either the special knowledge or special circumstances of the accused unless there is incapacity. This test is an important lens for assessing the relevance of the portions of the report that are not legal conclusions.
[50] Once the portions of the report dealing with the law are extracted, there are six sections that remain, as follows:
a) How training on occupational health and safety produces positive effects on workers’ attitudes and beliefs.
b) The industrial uses of compressed air.
c) The risks associated with compressed air.
d) Best practices regarding compressed air in the workplace.
e) An analogous example relating to the hazards that may arise from the use of liquid nitrogen.
f) A list of on-line resources relating to compressed air hazards.
[51] I will deal with the relevance of each issue in turn.
Training
[52] The section on training is simply a generic statement that general workplace training on occupational health and safety produces positive effect on workers attitudes and beliefs and a greater knowledge of potential harmful effect associated with certain work practices. In my view, this evidence would have no probative value in this case for three reasons.
[53] First, it is generic evidence. It does not have any specific link to the facts of this case, and will not advance the jury’s understanding of what happened in this case. Second, the evidence is speculative. The fact that training in general would improve people’s knowledge of, and appreciation for, occupational health and safety does not mean it would have done so in this case. Third, the work practices where knowledge would be improved have not been identified, making the evidence of limited value.
[54] As a result, the factual evidence on training is not relevant, and therefore not admissible. The legal points on training in the report remain inadmissible because they are law, and not fact.
Industrial Uses of Compressed Air
[55] Dr. Hon’s report sets out a list of industrial uses of compressed air. The fact that compressed air is used in abrasive blasting or air starters for diesel generators is completely irrelevant to this case. Providing the jury with evidence on other industries that use compressed air will not assist them in their task of finding facts in this case. This section of the report is also not relevant and, therefore, not admissible.
The Hazards of Compressed Air
[56] Then, there is a section on the hazards of compressed air. There are three portions to this section of the report, and I will deal with each section in turn. First, there is a summary from the Canadian Centre for Occupational Health and Safety[^1] (“CCOHS”) about the hazards of compressed air. An excerpt from this summary is produced in Dr. Hon’s report, and reads as follows:
“First, compressed air is extremely forceful. Depending on its pressure, compressed air can dislodge particles. These particles are a danger since they can enter your eyes or abrade the skin. The possible damage would depend on the size, weight, shape, composition, and speed of the particles. The pressure used to remove the particles from machines and surfaces is also strong enough to blow the filings, shavings, chips, and particles of metal into the eyes, ears or skin of people. Compressed air can enter the body where the skin is not present (i.e., ear, nose, rectum or any scratch or puncture in the skin, however small) and can cause damage. There have also been reports of hearing damage caused by the pressure of compressed air and by its sound.
Second, the compressed air itself is also a serious hazard. On rare occasions, some of the compressed air can enter the bloodstream through a break in the skin or a body opening. An air bubble in the bloodstream is known medically as an embolism, a dangerous medical condition in which a blood vessel is blocked, in this case, by an air bubble. An embolism of an artery can cause coma, paralysis or death depending upon its size, duration and location.
Third, using air to clean forces the dirt and dust particles into the air, making these contaminants airborne and creating a respiratory hazard”.
[57] The only part of the first paragraph of this excerpt that is relevant is the fact that compressed air can enter the body where the skin is not present. The fact that there can be damage to the eyes or abrasions on the skin is not relevant as such injuries are not present in this case.
[58] The fact that air can enter the body where the skin is not present is already before the jury. They are all aware of that fact, because air entering the rectum was the mechanism by which the deceased was mortally wounded. It is not necessary to provide this evidence to the jury as they already have it. Indeed, as Dambrot J. noted in R v. Evans (2013 ONSC 5550 at paragraph 30), “It seems self-evident that an expert opinion on an issue that the jury is fully equipped to decide without that opinion is unnecessary”.
[59] The second paragraph of the CCOHS excerpt lists a number of other bodily injuries that can be suffered as a result of compressed air. Again, the analysis I have set out in the previous paragraph of my judgment applies to this paragraph of the CCOHS analysis.
[60] The third paragraph of the CCOHS summary states that using compressed air can create a respiratory hazard. Given that there is no allegation that a respiratory hazard was created in this case, this portion of the CCOHS excerpt is also irrelevant.
[61] In terms of this portion of the report, I should also note that an expert is someone who is “shown to have acquired special or peculiar knowledge through study or experience in respect of the matter on which he or she undertakes to testify”. (Mohan, supra, at paragraph 27). In this, and other, sections of the report, Dr. Hon is not providing special or peculiar knowledge. He is providing information that he has obtained from the internet. Dr. Hon also sent an e-mail to the CCOHS asking for information about the risks of compressed air, and has used the response from an employee of the CCOHS in his report. Therefore, even if this information was relevant, it would be difficult to see how, in the form it has been presented, it could be the proper subject of expert evidence from Dr. Hon.
[62] There is a further problem with respect to the second and third paragraphs of this section of the report. These paragraphs offer medical opinions that would seem to be beyond the scope of Dr. Hon’s expertise. As I noted in the previous paragraph, even if this information is relevant, it is difficult to see how it could properly be the subject of expert evidence from Dr. Hon.
[63] This brings me to the second part of the section on the hazards of compressed air. This section is a listing of five separate reports, between 2002 and 2014, of injuries suffered by individual workers from the misuse of compressed air. Four of the incident summaries explain how another worker caused the injury by applying air to the rectal area of the injured worker. The fifth summary explains how a worker injured himself by cleaning his clothes with pressurized air. Mr. Salloum seeks to use these examples in part, to show how uninformed yet reasonable people have behaved around air hoses.
[64] In argument, Mr. Salloum acknowledged that there is no evidence before the Court that the individuals who misused the air hoses causing the injuries were (or were not) reasonable people. There is also no evidence about whether any of these individuals were charged, or what the disposition of any charges were. He also acknowledged that Dr. Hon is unlikely to have this information, as he has simply summarized the incidents. As a result, there will be no way to explore the factual underpinnings of these incidents.
[65] However, Mr. Salloum still asserts that these examples are relevant evidence for the jury as they will demonstrate to the jury that these are not unique injuries. Mr. Salloum also asserts that this evidence goes to his larger theory that humans are not born with the knowledge of the hazards of compressed air, and that the jury should have evidence before it to allow them to conclude that people need to be told of the danger that compressed air causes.
[66] I reject all of these submissions. First, there is no basis to conclude that the individuals who caused the injuries detailed in the five examples set out by Dr. Hon were, in fact, reasonable people. In addition, there is (on Mr. Salloum’s submissions) no prospect that we will be able to obtain this evidence from Dr. Hon.
[67] Second, the fact that the events causing injury in this case were not unique does not assist the jury in determining whether a reasonable person would have known about the risks associated with using an air hose. The fact that someone else did the same thing, or even several people did the same thing, does not mean that a reasonable person would not have known about the risks associated with applying air hoses to people’s anuses.
[68] An example will illustrate the flaw in this argument. The risks of drinking and driving are well known. Indeed, reasonable people everywhere are aware of these risks. However, the Court docket (in the Ontario Court of Justice) is still replete with drunk driving trials. Accepting Mr. Salloum’s submission would be similar to accepting a submission that a trier of fact could conclude that reasonable people were not aware of the risks of drinking and driving merely because other people had done it. That is not the test set out in Creighton, supra.
[69] In terms of Mr. Salloum’s argument that we are not born with the knowledge of the harms that can be caused by compressed air, I would note that we are not born with the knowledge of anything about the world around us. This does not mean that we need to be specifically trained in every hazard that exists in the world before we are aware that it is a hazard.
[70] As a result, these five examples are of no probative value, and should not be the subject of expert evidence.
[71] The third part of the section on the hazards of compressed air lists three conclusions from the literature that Dr. Hon has read. These are the three points that I waited to hear from the pathologist about. Those conclusions are as follows:
• Although the air pressure can vary in different situations, it takes only 1 or 2 seconds to deliver enough pressurized air to cause major damage. It is important to realize that this injury can occur without inserting the air hose into the anus.
• The usual pressure of air coming out of an compressor is 50-150 psi which is 10-30 times greater than the pressure needed for intestinal perforation.
• Compressed air can pose a threat to health and life of the uninformed user. Clear and unabashed warnings of the grave consequences from the negligent use of compressed air should be clearly communicated.
[72] After hearing from the pathologist, Mr. Salloum generally conceded that points 1 and 2 were more appropriately dealt with through the pathologist’s testimony.
[73] The first conclusion has already been addressed by the evidence in this case. It is clear from the videotape that the deceased’s clothes were not removed. However, this evidence is more appropriately dealt with through the pathologist’s testimony, as she has medical training.
[74] The second conclusion is also medical evidence that is more appropriately the subject of testimony from the pathologist. In addition, to the extent that the statement about the “usual pressure of air” is not medical evidence, it is also not relevant. The amount of pressure that usually comes out of an air compressor is of no assistance to the jury in understanding the events in this case. Further, there is already evidence before the jury about the air pressure in this particular system.
[75] The third conclusion was the only one that Mr. Salloum sought to call evidence on after hearing from the pathologist. There are three problems with this part of the conclusions. First, the first sentence is a medical conclusion that is also more appropriately addressed by the pathologist’s testimony. Second, the comments about uninformed users and the need for training are, for reasons I have set out elsewhere in this decision, irrelevant and inadmissible. Finally, this evidence comes very close to the ultimate issue that the jury has to decide: what a reasonable person would have known in these circumstances. As a result, this evidence is also inadmissible.
Best Practices
[76] In his report, Dr. Hon provides a list of best practices relating to the use of compressed air. In addition, he attaches a copy of a compressed air guideline from a Canadian Company. The company is based in Nunavut, and the purpose of the policy is “to outline the dangers involved in using compressed air to clean equipment, objects and materials.”
[77] Then, Dr. Hon notes that if one performs an online search for “compressed air safety policy” it yields 1,160,000 hits. He then provides a list of the hits on the first Google page, but confirms that he “has not vetted any of these resources…”. This evidence is merely meant “to demonstrate that organizations have recognized the risk associated with compressed air and have developed programs/awareness materials to address this hazard.”
[78] There are several problems with this evidence. First, it is not clear whether the best practices are for the use of compressed air for cleaning, or for other purposes. Second, it is likely that the best practices that Dr. Hon refers to will change depending on what the compressed air is used for. Third, the evidence itself is not clear. This is particularly true of the Google search that Dr. Hon performed.
[79] However, even taking the evidence at face value, it has no probative value in this case. General evidence about industry best practices does not assist, in any meaningful way, in determining what a reasonable person in this case would have done, or would have understood the risks to be. For example, the fact that care needs to be taken when using compressed air to clean surfaces and that workers need to be instructed on this, does not assist in whether the harm in this case (which did not involve the use of air to clean surfaces) was reasonably foreseeable.
Analogous Example
[80] The analogous example that Dr. Hon provides is liquid nitrogen. He uses this as an example of something that is safe in certain circumstances, and not in other circumstances. The air we breathe is approximately 80% nitrogen. It is harmless to us. Therefore, just like the air in compressed air, when people see nitrogen they might believe that it is harmless.
[81] However, Dr. Hon’s report notes that liquid nitrogen is dangerous. It is also not specifically covered in the OHSA or its regulations. As a result, Dr. Hon says that this is a good example to use to explain that although air is not dangerous, compressed air is dangerous.
[82] I am of the view that this analogy is not probative, and will be of no assistance to the jury, for two reasons. First, the dangers of compressed air in this case have been made clear by the incident that took place. Second, there is no relationship between compressed air in this situation and liquid nitrogen in another situation.
[83] Again, this evidence is of no probative value, and is therefore not admissible.
List of Online Resources
[84] The final section in the report is the list of online resources. This is merely a series of links to various websites, along with the following explanation from Dr. Hon:
Below is a non-exhaustive list of online resources which relate to compressed air hazards and/or safety awareness/protocols when working with compressed air. Note that the author has not vetted any of these resources and it is merely meant to demonstrate the availability of online resources with respect to compressed air in the workplace.
[85] Expert evidence is knowledge that is special or peculiar to the expert. A list of websites that the expert has cobbled together from the internet, but has not reviewed and cannot comment on is not “special or peculiar” knowledge. It is also impossible to know, from what has been provided by Dr. Hon, whether any of these documents are relevant. This section of the report is inadmissible, as being neither relevant nor the proper subject of expert testimony. It has no probative value whatsoever.
Prejudicial Effect
[86] As I have noted above, there is no probative value associated with the proposed expert’s evidence, except possibly for some of the evidence about the risks associated with compressed air. This evidence was already provided by the pathologist, and is also not admissible. As a result, I will only briefly address the prejudicial effect of the proposed expert evidence.
[87] Mr. Coughlin, on behalf of the Crown, argued that legal prejudice would arise in admitting this evidence in two ways. First, it would distract the jury from the proper considerations in this case. Second, it would be prejudicial to the trial process as a whole. I agree with both assertions.
[88] First, on the distraction of the jury, Dr. Hon’s report focuses a great deal of time on training, and on what is required in a safe workplace. Allowing Dr. Hon to provide this testimony might result in the Crown seeking to respond by introducing evidence from the Ministry of Labour to counter anything said by Dr. Hon about safe workplaces. These inquiries would not be of any assistance to the trier of fact in this case, as the standard of reasonableness is an objective standard, that is not going to be assisted in any significant way by expert evidence.
[89] Then, there is the prejudice to the trial process as a whole. In exercising the gatekeeper function in trials, judges have to balance the costs and benefits of any proposed expert evidence. In this case, the benefit of Dr. Hon’s evidence is at best negligible, while the costs, especially in terms of distracting the trier of fact, are considerable.
[90] Although I have found that the proposed evidence has no probative value, if I had found any probative value, it would be outweighed by the prejudicial effect of the proposed expert testimony.
Conclusion
[91] For the foregoing reasons, Dr. Hon was not permitted to provide expert testimony in this case.
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
[^1]: Misidentified in Dr. Hon’s Report as the Canadian Centre for Occupational Safety and Health.