COURT FILE NO.: 235/18
DATE: 2019-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Prosecution/Applicant
– and –
Michael John William Ball Accused/ Respondent
R. Dietrich and T. Shuster, for the Prosecution
A. Bryant and A.M. Morphew, for the Accused
HEARD: January 21, 22 and 23, 2019
Corrected decision: A correction was made on May 30, 2019 changing the year in the neutral citation from 2018 to 2019. No changes were made to the content.
PRE-TRIAL APPLICATION NO. 12 (PART 2)
ADMISSIBiLITY OF EXPERT EVIDENCE
Pursuant to section 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, or until further order of the court.
THE HONOURABLE JUSTICE J. R. HENDERSON
INTRODUCTION
[1] In this pre-trial application the Crown requests a ruling as to the admissibility of evidence from a proposed expert witness, Dr. Ethan Kreiswirth (“Kreiswirth”), at this trial.
[2] Kreiswirth has an undergraduate degree in physical education and a PhD in athletic training. He is currently an assistant professor and graduate program director in the health science department at Rocky Mountain University. He was formerly an assistant professor in the kinesiology department at Concordia University. He gives lectures on sports medicine topics and he is an athletic trainer.
[3] More significantly, Kreiswirth has a black belt in Brazilian Jiu Jitsu (“BJJ”). He has been actively involved as a competitor and a medical director in BJJ for approximately 25 years. Currently, he is the medical director for the International Brazilian Jiu Jitsu Federation.
[4] In summary, Kreiswirth’s proposed expert evidence can be divided into the following seven categories:
I. The history, growth, and popularity of BJJ.
II. The public knowledge of BJJ techniques through Ultimate Fighting Championship (“UFC”) events, internet websites, and YouTube.
III. The mechanics of BJJ techniques, including blood chokeholds.
IV. The methods of applying BJJ chokeholds.
V. The time required for a person to lose consciousness as a result of the application of BJJ chokeholds.
VI. The likelihood of visible or structural bodily injuries resulting from the application of BJJ chokeholds.
VII. The terminology used to describe BJJ techniques.
[5] The Crown submits that the proposed evidence satisfies the four criteria for admissibility of expert evidence as set out in the case of R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at para. 17. The Crown also submits that this evidence is highly probative as it goes to the cause of death, which is a significant issue in this case, and that any prejudicial effect is minimal.
[6] The defence submits that, depending upon the category of the proposed evidence, there are issues with respect to the relevance of the evidence, the necessity of the evidence, and Kreiswirth’s qualifications to give the evidence. Moreover, the defence submits that if this proposed evidence has any probative value it is exceeded by its prejudicial effect.
BACKGROUND
[7] Michael Ball (“Ball”) is charged with the first degree murder of Erin Howlett (“Howlett”). The evidence will establish that Ball and Howlett were in an intimate relationship, and that their relationship deteriorated at some point. However, Ball and Howlett continued to see one another.
[8] Howlett attended at Ball’s residence in the early evening of June 27, 2013. Thereafter, Howlett went missing. On July 5, 2013, Howlett’s body was discovered in a black duffel bag that was found in the Grand River near Kitchener, Ontario.
[9] It is the theory of the Crown that Ball killed Howlett on the evening of June 27, 2013 by choking her, and then, with the assistance of his friend, Daniel Warwick (“Warwick”), he placed Howlett in the duffel bag and threw the bag into the river.
[10] Warwick will testify that Ball picked him up on the evening of June 27, 2013 and took him back to Ball’s residence where Warwick observed Howlett’s lifeless body. The Crown submits that Warwick may testify that Ball told him that Ball “choked her out” and then knelt on Howlett’s chest to get the air out. It is expected that Warwick will testify that Ball and Warwick put Howlett’s body in the duffel bag and threw it into the river.
[11] At the first trial of this charge, the forensic pathologist, Dr. Bulakhtina, testified that Howlett’s body was in an advanced state of decomposition after it was discovered in the river. Bulakhtina could not identify a specific cause of death, but could not rule out or exclude the following causes of death: chest and neck compression, smothering with or without chest compression, drug toxicity, and positional asphyxia.
[12] Defence counsel at the first trial cross-examined Dr. Bulakhtina regarding the possibility of death caused by neck compression. Defence counsel noted that Howlett’s hyoid bone was not fractured prior to the autopsy. He suggested to Dr. Bulakhtina that it requires significant pressure to fracture the hyoid bone, and that a fracture of the hyoid bone would be highly suggestive of neck compression or manual strangulation. Dr. Bulakhtina generally agreed with those suggestions.
[13] Then, in closing, defence counsel asked the jury to consider whether the Crown had proved that Ball killed Howlett by manual strangulation given that Howlett’s hyoid bone remained intact. The net result of the first trial was that the jury was unable to reach a unanimous verdict, and a mistrial was declared.
[14] The Crown now wishes to call Kreiswirth at this second trial to, in part, provide evidence about the visible or structural bodily injuries, or the absence of same, that may result from the application of particular chokeholds. The Crown submits that in the circumstances of this case it is important to inform the jury of the different ways in which a person could be choked or strangled.
[15] Kreiswirth is not a medical practitioner and therefore he will not be permitted to give medical evidence. His proposed testimony includes a description of the mechanics of different types of chokeholds and the expected effects of these chokeholds on the human body.
[16] In addition, at the second trial the Crown plans to call another forensic pathologist, Dr. Shkrum, who will testify with respect to the probable physiological effects of the chokeholds that are described by Kreiswirth. Dr. Shkrum’s qualifications and expertise are not the subject of this application.
SUMMARY OF KREISWIRTH’S EVIDENCE
[17] Kreiswirth has never previously been qualified as an expert in a court of law, but he testified on the voir dire that he understands the obligations required of an expert witness who testifies at a court in Ontario. I accept that he understands his obligations and responsibilities as an expert witness.
[18] Kreiswirth provided a written report of his proposed evidence, and he testified viva voce on the voir dire. In summary, it is proposed that Kreiswirth provide the following testimony at the trial:
• BJJ is a martial art that involves grappling techniques and submission techniques.
• Predominant among BJJ submission techniques are chokeholds.
• The chokeholds practiced in BJJ are blood chokeholds, also known as carotid chokeholds.
• The most basic blood chokehold is the rear naked choke.
• The rear naked choke is not difficult to perform. It is applied from behind an opponent and it requires the person applying the chokehold to wrap his/her arm around the opponent’s neck so as to apply pressure to the carotid arteries.
• Unconsciousness occurs rapidly, ranging from five to ten seconds, after the application of the rear naked choke.
• The application of blood chokeholds, even to the point of unconsciousness, rarely results in visible injuries to the soft tissue of the neck or the hard structures of the neck.
• Continued application of these blood chokeholds can lead to death.
• BJJ is a major component of the modern sport known as mixed martial arts (“MMA”). BJJ and MMA have grown significantly in popularity in the last 15 years.
• The UFC is the predominant venue for fans of MMA. The most common submission technique in the UFC is the rear naked choke.
• Knowledge of BJJ and MMA techniques is now widely available through television, internet websites, and YouTube.
• The terminology used by competitors in BJJ and MMA in reference to choking an opponent to the point of unconsciousness is “I choked him out”.
THE LAW
[19] In the Mohan decision, Sopinka J. identified four criteria for consideration on an application regarding the admissibility of expert evidence, namely: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert.
[20] Thereafter, in the case of R. v. Abbey 2009 ONCA 624, 246 C.C.C. (3d) 301, also known as Abbey #1, at para. 76, Doherty J. suggested a two-step process for determining admissibility. At the first step, the party tendering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. This is a reference to the four Mohan criteria. If the proposed evidence survives the first step, then at the second step, the judge must decide whether the benefits of admitting the evidence outweigh the costs of its admission. This has been described as the judge’s gatekeeper function.
[21] At the second step the judge will be required to exercise judicial discretion. At this stage the judge should consider the legal relevance of the evidence, necessity, reliability, absence of bias, the possible misuse of the evidence by the jury, and the potential for harm to the trial process. In summary, the judge must decide whether the probative value of the evidence outweighs its prejudicial effect.
[22] This two-step process for determining admissibility of expert evidence has been adopted with minor adjustments by the Supreme Court of Canada in the case of White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 22-24. More recently, this two-step approach was confirmed by Laskin J. in R. v. Abbey, 2017 ONCA 640, also known as Abbey #2, at paras. 46-49.
ANALYSIS
[23] I intend to analyse this application by considering how the four Mohan factors apply to the seven categories of proposed expert evidence, some of which I will consider in groups. Then, if the evidence survives the first step, I will exercise my gatekeeper function by assessing the probative value of the evidence as compared to its prejudicial effect.
[24] Further, as a preliminary matter, I find that there is no exclusionary rule that applies to any of this evidence, and therefore I will not consider this factor further in this analysis.
CATEGORIES I, II, III, AND IV (BJJ POPULARITY, PUBLIC KNOWLEDGE, AND CHOKEHOLD TECHNIQUES)
[25] The gist of Kreiswirth’s evidence in these categories is that BJJ has grown in popularity, and that BJJ is the underlying discipline for MMA and UFC competitions.
[26] Kreiswirth will testify that blood chokeholds are prevalent techniques in BJJ and the most common is the rear naked choke. If applied correctly, the rear naked choke involves a competitor applying pressure to the carotid arteries of an opponent, causing the opponent to lose consciousness. There is little or no visible injury or damage to the structures of the neck as a result of the application of the rear naked choke.
[27] Because the rear naked choke is a common technique that has been popularized by the growth of MMA and UFC, and because Ball has an alleged interest in martial arts, the Crown suggests that Ball would know how to apply a rear naked choke. This fits with the Crown’s theory that Ball applied this chokehold to Howlett, causing her to lose consciousness and die. Ball’s use of the rear naked choke, according to the Crown, may explain the reason that the forensic pathologist found no structural damage to Howlett’s neck.
[28] On the voir dire, defence counsel raised two issues regarding these categories of evidence. First, the defence submits that this evidence is not logically relevant to any of the issues that are before the court. Second, the defence submits that the probative value of this evidence is minimal when compared to its prejudicial effect, and therefore the court should exercise its gatekeeper function to exclude the evidence.
[29] Regarding relevance, in Abbey #1, at paras. 83-85, Doherty J. separated the concepts of logical relevance (considered at the first step) and legal relevance (considered at the second step). He wrote the following at para. 84:
When I speak of relevance as one of the preconditions to admissibility, I refer to logical relevance… Evidence that is relevant in the sense that it is logically relevant to a fact in issue survives to the “gatekeeper” phase where the probative value can be assessed as part of a holistic consideration of the costs and benefits associated with admitting the evidence.
[30] The Crown submits, and I agree, that Kreiswirth’s evidence is logically relevant to the cause of death issue as Kreiswirth’s evidence will assist the jury in understanding and evaluating the evidence from the forensic pathologists.
[31] In coming to this conclusion, I find that a significant issue at trial will be the cause of Howlett’s death, and that the jury will be required to interpret the expert evidence of the forensic pathologists as to cause of death. I also find that one possible cause of death that will be discussed by the forensic pathologists will be death by neck compression. This will lead the jury to consider the possibility of manual strangulation or choking.
[32] Because the words “strangulation” and “choking” can be used in a general manner or in a specific manner, Kreiswirth’s evidence will assist the jury by providing information about different types of chokeholds and the ways in which pressure can be applied to the neck. Thus, Kreiswirth’s evidence is logically relevant to an issue at trial.
[33] Moreover, Dr. Shkrum, one of the forensic pathologists, testified at the voir dire. He stated that he was not an expert in chokeholds, but that he could provide an opinion as to the possible medical or physiological injuries that could result from different types of chokeholds. He could only offer this opinion if someone described the mechanics of the chokeholds to him. Thus, I find that evidence as to specific techniques of chokeholds is also logically relevant as a foundation for Dr. Shkrum’s opinion evidence.
[34] For these reasons, I find that evidence as to different choking techniques and different chokeholds is logically relevant to issues at this trial. If a possible cause of death is death by choking, then evidence that there are different kinds of chokeholds that apply pressure to different parts of the neck is logically relevant to the discussion.
[35] In addition, I accept that the popularity of BJJ, and the dissemination of knowledge about blood chokehold techniques is logically relevant in light of the Crown’s theory that Ball was aware of these techniques and had acquired the skill to apply a rear naked choke.
[36] Regarding the gatekeeper function, or the second step, the defence takes the position that even if this evidence is logically relevant, it has little legal relevance because the Crown cannot establish that there is a connection between Ball and BJJ or MMA such that a jury could infer that Ball was aware of blood chokehold techniques, or that he knew how to apply a rear naked choke. Therefore, the defence submits that the probative value of the evidence is far outweighed by the prejudicial effect.
[37] I accept that Kreiswirth’s evidence about the history and popularity of BJJ and MMA, the blood chokehold techniques associated with BJJ and MMA, and the availability of information about these techniques has little to no legal relevance unless the Crown can establish that Ball was involved in these pursuits, that he trained in BJJ or MMA, that he learned chokehold techniques, and that he knew how to apply the rear naked choke.
[38] In my view, the Crown can offer very little evidence that connects Kreiswirth’s evidence to the Crown’s theory that Ball had acquired the skill to apply the rear naked choke. Therefore, I accept the defence submission that the probative value of Kreiswirth’s evidence in these categories is low.
[39] The Crown relies on some text messages that were found on Ball’s cell phone, but in my view the text messages do not support the inference suggested by the Crown. I note that the Crown recovered approximately 35,000 text messages from Ball’s cell phone, but only four of these text messages even mention UFC. Further, three of those four texts were sent on the same evening in December 2012. Those three texts suggest that, in fact, Ball went out with the guys to get drunk and they attended at some location where they watched boxing and UFC fights.
[40] The Crown also relies on a Crown witness, Milo Milosevic (“Milo”) who is trained in MMA. Milo’s evidence is that Ball attended at Milo’s gym once for a seminar, but that he never trained with him. There is also some evidence that Ball trained at a gym at a young age, but the evidence is non-specific as to Ball’s age at the time or the type of training.
[41] I find that a jury could not infer from this evidence that Ball was even a fan of UFC, let alone that he trained in BJJ or MMA. Further, even if the Crown can establish that Ball was a UFC fan, there is little evidence that would allow a jury to infer that Ball had or could have acquired the skill set to properly apply a rear naked choke.
[42] In addition, I find that the probative value of this evidence is further diminished because Kreiswirth was only able to testify as to the growth of BJJ and MMA in the United States. He cannot offer any evidence regarding the growth or popularity of these sports in Canada.
[43] Therefore, I find that the probative value of all of the evidence in categories I, II, III, and IV is low.
[44] On the other hand, I find that evidence of the history of BJJ and the growth of MMA and the UFC could be extremely prejudicial. A jury who hears this evidence could be consumed by the evidence of competitive fighting, mixed martial arts, and the goal of trying to force an opponent into submission. This could be upsetting to a jury and may taint a jury’s view of Ball.
[45] Further, I accept that the introduction to this evidence regarding BJJ, MMA and UFC will unduly lengthen the trial and could distract the jurors from the true issues in the case. It could be very harmful to the trial process.
[46] For all of these reasons, I find that the evidence in categories I, II, III, and IV is not admissible.
CATEGORY V AND VI (TIME TO UNCONSIOUSNESS, AND ABSENCE OF VISIBLE INJURY)
[47] Given that the evidence with respect to the blood chokehold techniques associated with BJJ, MMA, and UFC is not admissible, the evidence in categories V and VI is irrelevant. The evidence in categories V and VI is not admissible as it depends upon the admissibility of the evidence in the first four categories.
[48] In the alternative, I agree with the defence submission that the evidence in category V (short time to loss of consciousness) and category VI (absence of visible or structural injury) is evidence that is not necessary and that Kreiswirth is not qualified to give it. Specifically, I find that this proposed evidence is medical evidence that should properly be introduced by a medical expert.
[49] There will be two forensic pathologists who will testify at the trial, Dr. Bulakhtina and Dr. Shkrum, and both are qualified to describe the medical or physiological injuries that may occur if certain chokeholds were applied. As Dr. Shkrum testified, he will be able to provide an opinion as to the likely physiological changes if the mechanism of the chokehold is described to him.
[50] Kreiswirth is not a medical doctor and is not qualified to give opinion evidence on these topics. Further, because this evidence may be introduced through the forensic pathologists, Kreiswirth’s evidence on these topics is not necessary.
[51] For these reasons, I find that the evidence in categories V and VI is not admissible.
CATEGORY VII (TERMINOLOGY)
[52] Kreiswirth testified that the phrase “choked her out” refers to the use of a blood chokehold to cause someone to lose consciousness. In my view, the evidence on this point is extremely weak and has limited probative value.
[53] Kreiswirth testified that the meaning that he ascribes to this phrase is the meaning within the world of BJJ and UFC. However, I note that Kreiswirth’s experience is primarily in the state of California. There is no evidence that this meaning should be ascribed to this phrase if the phrase was used by a layperson in Kitchener, Ontario.
[54] Further, an excerpt from a textbook called Forensic Science and Medicine: Sudden Deaths in Custody, recognized as authoritative by Dr. Shkrum, discusses the meaning of the phrase “choked out”. In that excerpt the author notes that this phrase is used by law enforcement officers and medical caregivers to refer to a situation where a subject is placed in a neck hold. The author states that it is not specific to any particular hold and does not necessarily mean that the subject was actually rendered unconscious. I agree that this textbook definition of “choked out” is not consistent with Kreiswirth’s testimony.
[55] In addition, there is a real question as to whether Warwick will, in fact, testify that Ball told him that Ball “choked her out.” Warwick used that phrase in a police interview, but he did not give that evidence when he testified at the first trial. Even if he had given such evidence, there is a significant issue as to what Warwick meant by that phrase.
[56] For all these reasons I find that the evidence in category VII is not admissible.
CONCLUSION
[57] For the reasons set out herein, I find that the proposed expert evidence is not admissible at trial.
Justice J. R. Henderson
DATED: February 4, 2019
COURT FILE NO.: 235/18
DATE: 2019-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Michael John William Ball
PRE-TRIAL APPLICATION NO. 12 (PART 2)
ADMISSIBiLITY OF EXPERT EVIDENCE
J. R. Henderson J.
Released: February 4, 2019