COURT FILE NO.: CR-17-912

DATE: 20190206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JORDAN OSBORNE

Defendant

COUNSEL:

Lisa Wannamaker for the Crown

Magdalena Wyszomierska and Sharon Jeethan for Mr. Osborne

HEARD: February 4-5, 2019

ruling on mohan voir dire

BOswell J.

INTRODUCTION

[1] Terence Pringle lived in a basement apartment in downtown Peterborough. Late in the evening of November 25, 2016, three young males entered his apartment through a window. Two of them attacked him as he sat in a chair in front of his television set. One had a baseball bat. The other, Mr. Osborne, had a hammer. Mr. Osborne used the hammer to strike Mr. Pringle repeatedly in the head. Mr. Pringle died within minutes.

[2] The central issue for trial focuses on Mr. Osborne’s state of mind at the time of the attack on Mr. Pringle. Mr. Osborne has testified that he never intended to kill Mr. Pringle. Moreover, he said he was so high on a combination of cocaine, marijuana and alcohol that the high took over. He said he was not in control of his body and does not understand why he did what he did.

[3] Mr. Osborne wishes to tender expert evidence of the effect of a combination of drugs, specifically cocaine, marijuana and alcohol, on the human brain. He proposes to tender such evidence through Dr. David Rosenbloom, a clinical pharmacist.

[4] The Crown did not consent to Dr. Rosenbloom’s qualifications. A day long voir dire was conducted in the result.

THE GOVERNING PRINCIPLES

[5] As a general rule, opinion evidence is presumptively inadmissible in trials – both criminal and civil – in Canada. Opinion evidence from a properly qualified expert is an exception to the general exclusionary rule. Still, expert opinion evidence must meet certain basic criteria in order to rebut the presumption against admission.

[6] The admissibility criteria were described by the Supreme Court in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (“Mohan”). The “Mohan factors” have been refined somewhat in subsequent cases: see R. v. Abbey, 2009 ONCA 624 (“Abbey1”) and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (“White Burgess”).

[7] The admissibility of an expert’s opinion, the scope of the evidence and the manner of its introduction are all issues to be determined following a voir dire: Abbey, para. 63.

[8] The voir dire involves a two-step analysis (see White Burgess, paras. 23-24). First, the party tendering the expert evidence must establish the threshold requirements of admissibility. These include the four traditional Mohan factors: (1) that the evidence is logically relevant; (2) that it is necessary to assist the trier of fact; (3) that it is not subject to an exclusionary rule apart from the rule relating to expert opinion evidence; and (4) that it is tendered through a properly qualified expert. Additionally, if the opinion is based on novel or contested science or science used for a novel purpose, the tendering party must establish the reliability of the underlying science for the purpose proposed.

[9] If the traditional Mohan factors are established to the satisfaction of the court, then the second part of the analysis is engaged. At this stage, the court exercises its discretionary gatekeeping function. This stage involves a cost/benefit analysis. In other words, a determination of whether the evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from its admission. (Abbey1, para. 76). This stage has been referred to as an assessment of the legal relevance of the evidence.

[10] As Abbey1 instructs, it is particularly important to establish the limits of the proposed expert’s qualifications and the boundaries of his or her evidence. Doherty J.A. described this significant exercise as follows, at para. 62:

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 PROPOSED QUALIFICATION

[11] At the outset of the voir dire, Ms. Wyszomierska advised that she is seeking to qualify Dr. Rosenbloom as an expert in pharmacy and pharmacology. More specifically, as an expert on the effects of alcohol, marijuana and cocaine on the body and brain, including the processes of the brain such as memory, cognition and behaviour.

THE PROPOSED OPINIONS

[12] Defence counsel are asserting that Mr. Osborne was in a state of advanced intoxication at the time of the attack on Mr. Pringle. They are not suggesting he was in a state of extreme intoxication where the voluntariness of his actions is called into issue. Instead, the defence position is that the amount of cocaine and alcohol Mr. Osborne ingested impaired the executive functions of his brain, causing him to act impulsively and without a foresight of death.

[13] They intend to invite Dr. Rosenbloom to describe the intoxicating effects of alcohol and cocaine and to state the following:

(a) Alcohol and cocaine may inhibit working memory. There may, but do not have to be, partial or complete blocks in memory;

(b) Cocaine affects the fight or flight response and promotes impulsive reaction and disinhibition;

(c) The combination of alcohol and cocaine tends to impair the thoughtful, reflective functions of the brain while promoting impulsivity.

[14] Ultimately, Dr. Rosenbloom will be asked to opine on whether Mr. Osborne’s described symptoms are consistent with advanced intoxication on alcohol and cocaine.

[15] Mr. Osborne testified that he smoked marijuana throughout the day on November 25, 2016, consumed 3-8 drinks of rum and snorted some 15-17 lines of cocaine. Each line was roughly .1 grams, save for the last two, which were larger and which he snorted just before leaving for Mr. Pringle’s apartment.

[16] Mr. Osborne said that as he was walking to Mr. Pringle’s apartment he was feeling really, really high as a result of the substances he ingested. He said his high was going up and down. He was anxious and nervous. He was feeling really paranoid, stressed out and confused about why agreed to participate in the attack. Later, when he confronted Mr. Pringle, a shock went through his system. He felt like his heart was in his throat. He had a feeling of falling, like being on the “Drop Zone” ride at Canada’s Wonderland. He could not explain why he struck Mr. Pringle. The high of the cocaine just took over his body and he was not in control of it. He was so high it felt like he was watching a movie. It was almost like it wasn’t him.

THE POSITIONS OF THE PARTIES

[17] The defence position, of course, is that the expert opinion evidence they intend to adduce through Dr. Rosenbloom is relevant, probative and necessary and they say it is well within the witness’ area of established expertise.

[18] As the argument developed at the end of the voir dire, it became apparent that the litigants were not as far apart in their positions as initially anticipated. Defence counsel have circumscribed the evidence they intend to adduce through Dr. Rosenbloom, thereby limiting the disputed issues.

[19] Concerns have, however, arisen as a result of some of the content of Dr. Rosenbloom’s report.

[20] Crown counsel submits that Dr. Rosenbloom, in his report, ventured into subject matter beyond his area of expertise.

[21] One of the areas covered in Dr. Rosenbloom’s report is the subject of consciousness. A number of paragraphs were devoted to the subject. The reason for the discussion on consciousness is not entirely clear as Dr. Rosenbloom did not ultimately describe Mr. Osborne as being in an altered state of consciousness. He did opine that Mr. Osborne was driven by impulse. He said his actions “were no longer tempered by moderating thought or feedback from the higher executive centres of the brain…The consequences of his actions would be unforeseen due to the decoupling of action from reflective reasoning.”

[22] The Crown does not accept that Dr. Rosenbloom is an expert in consciousness or in the specific processes of the brain, including memory, cognition and behaviour. These issues are properly within the bailiwick of psychiatrists, psychologists and neurologists. The Crown does not dispute Dr. Rosenbloom’s expertise in the general manner in which the ingestion of various types of drugs impact on the human body and brain. The Crown does not oppose defence counsel putting Mr. Osborne’s described symptoms to Dr. Rosenbloom and asking whether they are consistent with advanced intoxication on a combination of alcohol and cocaine.

DISCUSSION

[23] There is no serious contest about whether Dr. Rosenbloom’s proposed evidence is logically relevant and necessary.

[24] The central fact in issue in this case is Mr. Osborne’s state of mind. Evidence that he was intoxicated to a degree that may have impaired the executive functions of his brain is relevant to Mr. Osborne’s state of mind.

[25] The vast majority of jurors will not need an expert to tell them about the general intoxicating effects of alcohol. They may be significantly less familiar with the intoxicating effects of cocaine, particularly when taken in substantial amounts. They will likely not be familiar with the way in which cocaine and alcohol interact and, in particular, the manner in which they may impair cognitive functioning.

[26] The only real contested issues in terms of Dr. Rosenbloom’s proposed evidence are the limits of his expertise and the boundaries of his proposed evidence.

[27] The dispute about Dr. Rosenbloom’s qualifications is a little difficult to clearly grasp. The opaqueness is a result, in my view, of two factors.

[28] First, the court is not well-equipped to define the precise limits on a clinical pharmacist’s expertise when it comes to the effect of drugs on cognition and behaviour. Clearly, a person with a doctorate in pharmacy, like Dr. Rosenbloom, will have some expertise in the manner in which various classes of drugs affect bodily processes, including processes of the brain such as cognition and memory. But Dr. Rosenbloom is not formally trained or experienced in the broader fields of cognition, memory and behaviour. I agree with Crown counsel that these fields are more properly within the realm of psychologists, psychiatrists and neurologists.

[29] Second, I did not find Dr. Rosenbloom to be particularly sensitive to the limits of his education, training and experience. Rather, I was left with the sense that he will enthusiastically exceed those limits if given sufficient leeway.

[30] I would accordingly describe the dispute as to the proper boundaries of Dr. Rosenbloom’s qualifications and proposed evidence as essentially twofold:

(a) Is he qualified to give opinion evidence in all of the areas he addressed in his report? and,

(b) Just how deep into the areas of brain anatomy, cognition, memory and behaviour may he opine on?

[31] There is no exact legal definition of a properly qualified expert. Expertise may be achieved in different ways. As Justice Sopinka described it in Mohan, “expertise in a subject area is a function of one’s peculiar knowledge gained through education and experience in that area.” (Para. 27).

[32] Justice Sopinka’s basic description of expertise has generally stood the test of time. It has been modified in one particularly significant way by White Burgess. A qualified expert is now one who also understands his or her duty is to the court and accepts the duty to be fair, objective and non-partisan. (Paras. 45-47). There is no suggestion in this case that Dr. Rosenbloom is biased.

[33] Dr. Rosenbloom has been engaged in the study and/or practice of pharmacy and pharmacology for the past fifty years. He obtained his BSc. in pharmacy from Liverpool Polytechnic in 1971. He later relocated to America and obtained his BSc and Pharm. D. (Doctor of Pharmacy) from Duquesne University in 1976 and 1977 respectively.

[34] He described pharmacy as the application of a knowledge of drugs and, to some extent, toxicology. It involves how drugs affect individuals, including their brains; how drugs are used; the recommendation of treatments; and the monitoring of outcomes, amongst other things.

[35] He described pharmacology in two components. The first component is the manner in which drugs are absorbed, metabolized and eliminated by the human body. The second is the effect that drugs have on the body and brain.

[36] Dr. Rosenbloom has held a number of teaching appointments including assistant, associate and clinical professorships in the Dept. of Medicine at McMaster University. For all intents and purposes, however, he has not taught since 2016.

[37] He has been a licensed pharmacist in Ontario since 1996, only recently letting his license lapse, as he is focusing primarily on pharmaco-legal issues in his current practice. It no longer makes sense, from his point of view, to continue to meet the continuing education requirements for licensing when such education is not relevant to his work.

[38] Dr. Rosenbloom cites some 53 scholarly articles he has authored or co-authored over his career. Eight of them arguably address the effects of drugs on cognition. None of them focus on consciousness specifically, and none focus on cocaine use or the potential effects of a combination of cocaine and alcohol.

[39] Between 1975 and the present, he has attended, according to his CV, some 72 conferences and/or courses. Again, none appear to focus on the issues of consciousness, or the effects of cocaine and alcohol on cognition.

[40] Finally, his CV cites more than 160 invited addresses he has made. Included among these are: “The Drugs Made Me Do It – Drug Induced Mental States”; “Drugs, Consciousness and Murder”; and “Consciousness: What it is and How it is Affected by Drugs and Alcohol”.

[41] I have no difficulty in qualifying Dr. Rosenbloom as an expert in pharmacology. But that is a wide scope. It is important to clearly delineate what specific areas he is able to give expert opinion evidence on in this case.

[42] Qualification of an expert involves not only an examination of his or her particular expertise, but also the scope of his or her proposed evidence. As Justice Doherty observed in Abbey1, as above at para. 62, “The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal.”

[43] I found Dr. Rosenbloom to be an intelligent, articulate and earnest witness on the qualification voir dire. In his role as a small group instructor at McMaster medical school, he emphasized structured self-learning. He has employed a discipline of self-learning throughout his career. I am certainly not critical of his efforts to remain current and in touch with developing research into areas of interest to him and his practice. But this is a case where the instruction from Court of Appeal for Ontario in R. v. Mathisen, as above, is apposite.

[44] In my view, Dr. Rosenbloom has a tendency to read up on research literature in areas that are peripheral to, or marginally related to, pharmacology, which is clearly an area he has sound expertise in. He then tends to expand his purported expertise into those areas, based solely on his review of the research literature and without clinical experience in support. A good example is found in the section of his report entitled “Consciousness Framework”.

[45] Dr. Rosenbloom has done some – perhaps considerable – reading on the subject of consciousness. But based on his classical education, training and experience, I would not characterize him as an expert in the field of consciousness. Nevertheless he has devoted a significant part of his report to that field, where he cites numerous articles he has read.

[46] A proposed expert must have demonstrated experience, through education, training and practice, in the specific subject matter of the proposed opinion. A review of the relevant research literature on a subject matter “at the margins of the witness’s education, training and experience, or in a closely related field of study, does not render one an expert… Absent demonstrated experience, the court runs the risk that the proposed witness is not offering an independent opinion, but rather is merely relying on the opinions of others.” See S.K. Fenton, “A Properly Qualified Expert”, National Criminal Law Program, July 2015, Section S.1, page 5. See also R. v. Mathisen, 2008 ONCA 747, paras. 126-127.

[47] Dr. Rosenbloom is not a medical doctor. He is not a psychologist, psychiatrist or neurologist. While some of his university studies involved the processes of the brain, I am not satisfied that he is an expert in cognition, behaviour or the broad field of memory, including encoding and recall. He has insufficient education, training and experience in these areas to justify the conclusion that he is an expert in them.

[48] Cognition, at its core, means thinking. According to the Oxford English Dictionary, it refers to the mental process of acquiring knowledge, and understanding through thought, experience and the senses.

[49] I accept that Dr. Rosenbloom has expertise in the manner in which drugs impact on certain mental processes including cognition and memory. But I am not satisfied that he is an expert in the broader fields of cognition, behaviour and memory. They are, in my view, the proper realm of psychologists, psychiatrists and neurologists.

[50] In the result, I find that Dr. Rosenbloom is not qualified to offer wide-ranging opinions about cognition and/or behaviour. He is furthermore not qualified to give evidence in or render broad opinions on the encoding and recall of memory.

[51] Having said that, Dr. Rosenbloom is qualified to talk about, and express opinions about, the manner in which drugs impact on the human body, including the brain. There is a fine line here. Obviously the human brain is the principal organ involved in cognition. Some of what Dr. Rosenbloom is qualified to discuss and opine on will involve the manner in which the brain functions and the manner in which individuals behave.

[52] While I am not satisfied that Dr. Rosenbloom is qualified to render opinions about the broader fields of cognition (including memory) and behaviour, I am satisfied that he is qualified to render opinions about how certain drugs, including cocaine, marijuana and alcohol, impact on certain aspects of cognition, memory and behaviour.

[53] I will be more precise.

[54] I will qualify Dr. Rosenbloom as an expert in pharmacy and pharmacology, capable of providing opinion evidence on the effect of cocaine, marijuana and alcohol on the human body and brain.

[55] For clarification purposes, I am satisfied that Dr. Rosenbloom has expertise in, and may offer opinions, in the following areas:

• The generally observed effects associated with the ingestion of cocaine, marijuana and/or alcohol, including, but not limited to, the sensations of euphoria, disinhibition, impulsiveness, increased vigilance, paranoia, increased heart rate, dilated pupils, muscle spasms, anger, hostility, an increase in the fight or flight response, and increased stress or tension;
• The impairment of information processing and judgment and decreased thoughtfulness and reflectiveness associated with advanced intoxication;
• The combined effects of alcohol and cocaine, including a longer half-life of the cocaine high, increased disinhibition and risk-taking, unbridled anger and aggressiveness, decreased capacity for executive decision-making and an increase in the fight or flight response; and,
• The general inhibition of working memory, resulting in the potential (but not the inevitability) of memory loss;

[56] He may offer an opinion about whether Mr. Osborne’s described symptoms are consistent with advanced alcohol/cocaine intoxication.

[57] On the other hand, Dr. Rosenbloom may not provide opinion evidence in the following areas:

• Aspects of consciousness;
• States akin to automatism. He may not, for instance, use language that suggests Mr. Osborne was acting “on auto pilot”; and,
• He may not render conclusive opinions to the effect that Mr. Osborne’s actions were no longer tempered by feedback from the higher executive functions of the brain or that his actions would have been unforeseen due to the decoupling of action from reflective reasoning. These conclusions tend to usurp the function of the jury. Moreover, in my view, they stray too far afield from pharmacology and too far into the field of psychiatry; they are outside of Dr. Rosenbloom’s expertise.

[58] The final stage of the analysis is where the court engages in its discretionary gatekeeping function. Otherwise admissible expert opinion evidence may yet be excluded where its potential for prejudice outweighs its probative value. This is an assessment about whether the evidence is “worth the candle”. As Doherty J. put it in Abbey1, as above at para. 76:

[T]he 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.

[59] Crown counsel did not assert that Dr. Rosenbloom’s evidence – or any part of it – should be excluded by application of the costs/benefits analysis. In view of my delineation of the scope of Dr. Rosenbloom’s evidence as set out above, I am satisfied that the evidence passes this threshold.

[60] In the result, Dr. Rosenbloom will be qualified as an expert in pharmacology, capable of giving opinion evidence about the impact of alcohol, cocaine and marijuana on the human body and brain, subject to the limitations set out above.

Boswell J.

Released: February 6, 2019