COURT FILE NO.: CR-17-452
DATE: 20210527
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
M. Morris, for the Crown
Crown
- and -
FRANK O’DEA
K. Wildman, for the Accused
Accused
HEARD: May 18 & 19, 2021
Reasons for Ruling on Admissibility of Expert Evidence
BALTMAN J.
Introduction
[1] On April 20, 2015, the Accused called 911 to report that his daughter, then 21 months old, was not breathing. When the paramedics arrived at his basement apartment in Brampton, Victoria had no vital signs. Shortly after, she was pronounced dead at Brampton Civic Hospital. The reported cause of death was extreme dehydration and malnutrition.
[2] The Accused, who had sole custody of Victoria and lived alone with her, was subsequently charged with manslaughter and criminal negligence causing death, by failing to provide the necessities of life. He has elected to have a judge alone trial.
[3] The Crown proposes to call the following four expert witnesses at trial:
a) Dr. H. Kassam (Coroner)
b) Dr. M. Pickup (Forensic Pathologist)
c) Dr. D. Ramsay (Neuropathologist)
d) Dr. S. Zlotkin (Paediatric Nutritionist)
[4] On May 18, 2021, I conducted a voir dire into the admissibility of their evidence. All four proposed experts testified. The Defence’s sole challenge to the proposed evidence was based on the experts’ qualifications, particularly whether they were independent and impartial.
[5] On May 20 I ruled that, for reasons to follow, the evidence of Drs. Kassam, Pickup and Ramsay is admissible, but the evidence of Dr. Zlotkin is not. These are my reasons.
Legal Framework
[6] The legal test for the admissibility of expert evidence is now well established in the case law: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at paras. 22-24; R. v. Abbey, 2017 ONCA 640, at para. 48. There is a two-stage analysis. At the first “threshold” stage, the party tendering the evidence must establish four preconditions to admissibility:
A) The evidence is logically relevant;
B) The evidence is necessary to assist the trier of fact;
C) The evidence is not subject to any other exclusionary rule; and
D) The expert is properly qualified, which includes the requirement that the expert be impartial and independent.
[7] If the evidence meets these four preconditions to admissibility, then in the second stage the trial judge exercises their function as gatekeeper by determining whether the probative value of the evidence outweighs its prejudicial effect.
[8] The fourth precondition – that the expert be properly qualified – is grounded in the expert’s duty to the court, which encompasses three related concepts: impartiality, independence and absence of bias. As explained at para. 32 of White Burgess:
The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.
[Emphasis added.]
[9] Importantly, the Supreme Court emphasized that a proposed expert’s independence and impartiality “goes to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty”: paras. 34, 40, 45. (emphasis added). See too Bruff-Murphy (Litigation Guardian of) v. Gunawardena, 2017 ONCA 502, at para. 38. This threshold requirement is “not particularly onerous” and a proposed expert’s evidence will only be ruled inadmissible in a “rare” and “very clear” case: White Burgess, at para. 49. For the reasons set out below, this is one of those cases.
Evidence and Analysis
[10] All four proposed experts testified on the voir dire. Although the defence has only focused on impartiality, I have considered the other criteria as well, as I am obligated to do in my role as a gatekeeper. In this case, all four experts have an understanding of their medical specialty that is beyond my knowledge. Their evidence is logically relevant to the issues in the case because it will assist me in understanding the cause(s) of Victoria’s death as well as the underlying pathology. Finally, none of this evidence is barred by another exclusionary rule.
[11] While defence counsel asserts that the court must scrutinize the independence of all four witnesses, his main objection was focused on Dr. Zlotkin, and therefore I shall only briefly review the evidence of the first three witnesses.
Dr. H. Kassam (Coroner)
[12] Dr. Kassam has been a coroner for 18 years and has testified in court on several previous occasions. He is employed by the Province of Ontario and does not consider himself beholden to any party. Although he frequently receives information from the police during an investigation, he testified - compellingly in my view - that he “doesn’t take direction from anybody,” and makes his own decisions. He regularly cautions police not to draw conclusions from first impressions. His job is to gather all the facts necessary to answer the “five questions” implicit in the Coroners Act, R.S.O. 1990, c. C.37: who died, when did they die, where did they die, how did they die, and by what means.
[13] During cross-examination, Dr. Kassam was asked whether during an investigation he “starts from the point of view of looking for criminality”. He responded “I’m not sure why that would even be asked”, and then advised “that’s not what I do.” Defence counsel argues that Dr. Kassam seemed “offended” by the scrutiny, which in turn suggests he does not appreciate the importance of independence.
[14] I disagree. Just moments earlier in the cross-examination Dr. Kassam had been asked whether in his initial assessment of a case he “tends to think in terms of criminality”, and had already denied that, explaining that he does “not think in terms of criminality at all, that’s not what I do, I’m not a police officer or a lawyer.” Having just been asked and clearly answered that question, Dr. Kassam was understandably confused as to why it was being put to him again. I do not see that as encroaching on his independence whatsoever.
Dr. M. Pickup (Forensic Pathologist)
[15] Dr. Pickup has been employed as a forensic pathologist by the Province of Ontario for ten years. He has testified in court on over 100 occasions. He perceives that his duty is “to the Court, meaning that I don’t pick sides.” He explained he reports the facts and gives his opinions based on his knowledge and experience, but has “no skin in the game, meaning I don’t care what the outcome is.” His uncontradicted evidence is that his involvement at the behest of the Crown has no bearing on his evidence whatsoever.
[16] Dr. Pickup testified that in cases involving possible criminal conduct, such as this one, before releasing his final report it would be reviewed by another forensic pathologist to ensure that it is reasonable, objective, fair and balanced.
[17] Defence counsel did not identify anything specific from Dr. Pickup’s evidence to raise concerns regarding his independence, and I see none. His evidence is therefore admissible.
Dr. D. Ramsay (Neuropathologist)
[18] Dr. Ramsay is affiliated with the Ontario Forensic Pathology Unit as well as being a staff neuropathologist at the London Health Sciences Centre in London, Ont. His report in this case was made in response to a referral from Dr. Pickup.
[19] Importantly, he has previously testified as an expert for both the Crown and the Defence, the details of which are included in his C.V. He explained that although he has testified more often for the prosecution, he perceives himself as “a servant of the Court” who does not seek to support either side. His role is to apply “scientific ruthlessness”.
[20] In cross-examination Dr. Ramsay openly acknowledged the serious risk of “confirmation bias” influencing one’s judgement. He is very conscious that a physician’s opinion might play a significant role in whether someone does – or does not – end up in jail, and therefore considers it his duty to admit to the court any uncertainty he may have about a case.
[21] Other than urging the Court to review Dr. Ramsay’s evidence as part of its gatekeeping function, defence counsel made no submissions questioning his independence. I too see no basis to question it.
Dr. S. Zlotkin
[22] Dr. Zlotkin is a paediatric nutritionist and has been affiliated with The Hospital for Sick Children (“HSC”) in numerous senior roles since 1994. In addition to being a qualified paediatrician and having a PhD in nutritional sciences, he has worked as a clinician at HSC for many years, dealing with a wide variety of nutritional issues for children and infants. He has also taught and published extensively in the field of paediatric nutrition for decades. His C.V. is 47 pages long and demonstrates that he is highly accomplished.
[23] Dr. Zlotkin was asked directly by the Crown to testify in this case, but receives no extra remuneration for this service. In the past 15 years he has testified on six or seven occasions for the Crown. He has never testified for the Defence.
[24] Dr. Zlotkin’s evidence in chief raised no obvious concerns. When asked how he saw his duty to the court in authoring his report, he asserted that he was “100%” aware of the need to be impartial and that his opinion would be the same irrespective of whether the Crown or the Defence retained him.
[25] The problem arose in cross-examination, when Dr. Zlotkin was asked whether he had a particular approach as to which “side” he might appear for. He advised that he has “never ever” appeared for the defence, but has many times for the Crown, stating “I feel that when I appear for the Crown I’m sort of doing my civic duty and my duty as an academic and a paediatrician with specific expertise and I have no problem saying yes when the Crown approaches me.” He then added: “I would work for the Crown, I would not work for the defence.”
[26] Dr. Zlotkin was then asked whether he would be prepared to provide his opinion on a case if it was sought by defence counsel. He answered “generally no”. While there “may be a specific situation” where he would consider it, he believes an expert working for the defence is “a hired gun”. He continued: “I don’t feel that I am that person. I’m an academic physician, I do not feel it’s worth my time or is my role to appear for defence.” He added that while there maybe a situation in the future where he would appear for the defence, “at this point I can’t imagine what that would be.”
[27] In re-examination, far from being remedied, the problem was made worse. Although he asserted that he would provide an unbiased assessment irrespective of which side retained him, he stated: “I don’t see it as my job to spend time working for defence, whereas I do feel it is my obligation to answer when asked by the Crown.”
[28] I view these statements as indicative of an inherent and strongly held bias in favour of the Crown and against the Defence. Importantly, the reason Dr. Zlotkin gives for declining any defence retainer is that he perceives such experts to be “hired guns”, whereas working for the Crown is a “civic duty” and an “obligation”. In other words, a defence retainer is ignoble, but a Crown retainer is for the public good.
[29] It is particularly troubling that Dr. Zlotkin still holds these views after decades of experience and numerous court appearances. It appears that the presumption of innocence and the right to a fair trial – where both sides are entitled to be advanced – are absent from his approach. If all physicians adopted his attitude, there would be no medical experts available to guard against wrongful convictions. In a case such as this, where Mr. O’Dea’s liberty is at stake, the implications are dire.
[30] I recognize that Dr. Zlotkin possesses a rare combination of expertise in both paediatrics and nutritional science. I also have no doubt he is a highly skilled, dedicated and caring physician, whose services have been of great benefit to many. But it is one thing to be an outstanding doctor; it is another to be an impartial justice participant. The latter must truly appreciate that experts who testify for the Defence are performing a “civic duty” at least equal to those who testify for the Crown. By his own words Dr. Zlotkin does not see that, and therefore, in my view, is not qualified to testify as an expert.
Conclusion
[31] For the reasons set out above, I determined that the evidence of Dr. Zlotkin is not admissible at this trial.
Baltman J.
Released: May 27, 2021
COURT FILE NO.: CR-17-452
DATE: 20210527
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
FRANK O’DEA
Accused
REASONS FOR RULING ON ADMISSIBILITY OF EXPERT EVIDENCE
Baltman J.
Released: May 27, 2021