COURT FILE NO.: CR 17-69
DATE: 2022-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
S. Doherty and P. McDermott, on behalf of the Crown
Crown
- and -
PETER KHILL
J. Manishen, for the Accused
Accused
HEARD: December 2, 2022
A. J. Goodman J.:
RULING ON ADMISSIBILITY OF DR. TURNER’S EXPERT OPINION EVIDENCE ON SPECIFIC ISSUES
[1] The Crown proposes to call a forensic pathologist, Dr. Jane Turner, at trial to provide forensic pathology evidence and, in particular, to opine on the sequence of the shots and the timing of positioning of the deceased relative to the pickup truck at the time of the two shotgun discharges.
[2] I had the opportunity to review the transcripts provided by the parties, the forensic report drafted by Dr. Turner, along with her curriculum vitae, and the viva-voce evidence presented during the voir dire.
[3] At the conclusion of the defence submissions, I provided a brief oral ruling with respect to the threshold admissibility of Dr. Turner’s proposed expert opinion evidence on the points in contention. I held that the proposed evidence was admissible. The parties were advised that written reasons would follow. These are my Reasons.
Positions of the Parties:
[4] While the defence concedes the overall expertise of this witness, the objection stems from the scope of the opinion being proffered on the issue of the positioning of the deceased as well as opinion arising from Dr. Turner’s review and assessment of the blood stain pattern analyst report. The defence submits that the opinion is beyond the scope of Dr. Turner’s expertise and will only serve to confuse the jury.
[5] Mr. Manishen, for the accused, submits that Dr. Turner’s opinion suffers from her lack of training with regards to blood stain pattern analysis and that she provided inconsistent or differing opinions regarding her conclusions as to the positioning of the deceased prior to the second shotgun injury at the previous trial.
[6] The defence submits that Dr. Turner’s evidence on point is not properly the subject of expert medical opinion. The defence argues this evidence is unnecessary, inadmissible and confusing. Given that the blood stain pattern analyst will be testifying at trial, Doctor Turner’s limited expertise in this area and her evidence adds nothing to the jury’s assessment of the issues at trial.
[7] Mr. Doherty, on behalf of the Crown, responds that Dr. Turner has the requisite education, training and experience with autopsies and shotgun injuries to opine on this very issue. She relied on various sources that have or will be established in evidence and that her opinion if premised on a whole host of factors, is well within her professional expertise.
[8] The Crown submits that the existence of a medical explanation for the deceased’s positioning during the course of the two shotgun discharges are highly relevant and therefore probative of a central issue at trial. The preconditions to admitting expert evidence on this specific issue are met.
The Proposed Evidence:
[9] Dr. Turner was asked by the Crown to comment on the sequence of the shots being fired in relation to the forensic examination of the injuries sustained by the deceased along with the positioning of Mr. Styres at the time of the weapon’s discharges, amongst other issues.
[10] In Dr. Turner’s February 9, 2017 report, she concludes with the following:
Taking all of these factors into consideration, it is reasonable to conclude that the shotgun wound on the left chest was fired first while Mr. Styres was standing at the passenger side door facing the truck cabin. The shooter was at Mr. Styres left side and Mr. Styres is slightly turned towards the shooter. Upon sustaining that shotgun injury Mr. Styres’ body likely pivoted to the left and he fell to the ground on his hands and knees at which point he was shot a second time. With his body so positioned, the back of Mr. Styres right upper arm is in line of fire consistent with the shooter standing in front of and slightly to the right of Mr. Styres.
[11] During the voir dire, Dr. Turner testified that she considered all of the relevant factors including her analysis of the scene and autopsy photographs, the post-mortem report, investigative reports, the bloodstain analysis report and in particular, her examination of the pathology evidence. She discussed the photographs with respect to the positioning of Mr. Styres and the mud on the deceased knees and hands. Dr. Turner testified about her exposure and experience with shotgun injuries, which formed a considerable part of her conducting over 5000 autopsies.
[12] Dr. Turner recognized that her opinion was subject to other possible scenarios consistent with her analysis of the post-mortem report, the scene photographs and the blood stain pattern analysis. She also affirmed that her opinions were, for the most part, sustained without reference to the blood stain analyst’s findings.
Legal Principles:
[13] In the seminal case of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, Sopinka J. provided a framework for the admissibility of expert opinion evidence. The admission of expert opinion depends on the application of the following criteria:
a) Relevance (logically relevant to a material issue);
b) Necessity in assisting the trier of fact;
c) The absence of any exclusionary rule; and
d) A properly qualified expert.
[14] The logical relevance of proffered expert opinion evidence is a threshold question of law to be determined by the trial judge. Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence. The jurisprudence suggests that logical relevance is a low threshold.
[15] In R. v. K. (A.) and K. (N.) (1999), 1999 CanLII 3793 (ON CA), 137 C.C.C. (3d) 225 (Ont. C.A.), at paras. 71-72, Charron J.A. (as she then was) held:
The opinion rule is a general rule of exclusion. Witnesses testify as to facts. As a general rule, they are not allowed to give any opinion about those facts.
Opinion evidence is generally inadmissible. Opinion evidence is generally excluded because it is a fundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or her opinions on the issue in the case.
[16] The opinion must be “reasonably necessary” to assist the jury, though it need not be “absolutely necessary”: Mohan, at p. 23, R v. Abbey, 2009 ONCA 624, (2009), 246 C.C.C. (3d) 301 (Ont. C.A).
[17] The expert evidence need not, on its own, tend to establish a fact in issue on a balance of probabilities. The evidence must, however, contribute in a meaningful way to the proof or likelihood of the existence of the fact at issue. Opinion evidence lacking or deficient in probative value should not be admitted.
[18] Where the expert opinion evidence is otherwise admissible, it may nevertheless be excluded on the application of the trial judge’s discretion to exclude evidence where the costs of its receipts outweigh the value of its admission in the circumstances of a specific prosecution. This is the “cost-benefit analysis” referred to in Mohan – a highly discretionary balancing exercise undertaken by the trial judge overarching the legal determination of the admissibility of all evidence: Mohan at p. 21.
[19] In the leading case of White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, 2015 2 SCR 182, the Supreme Court of Canada provides further direction on the rules of admissibility. There is now a robust degree of gatekeeping function required by trial judges. The judge determines whether the benefits of admitting the expert opinion evidence outweigh its potential risks. This has been referred to as the second stage but it is really an application of the general exclusionary rule. In essence, to admit the opinion evidence, it ought to provide information that is likely outside the experience or knowledge of the jury, and relates to something about which ordinary people are unlikely to form a correct judgment without expert assistance.
[20] In R. v. Abbey #2, 2017 ONCA 640, the Court of Appeal had another opportunity to reframe the test for the admissibility of expert opinion evidence. In referring to White Burgess, the court summarized the test as follows at paras 48 and 49:
Expert evidence is admissible when:
- It meets the threshold requirements of admissibility, which are:
a. The evidence must be logically relevant;
b. The evidence must be necessary to assist the trier of fact;
c. The evidence must not be subject to any other exclusionary rule;
d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is:
i. Impartial,
ii. Independent, and
iii. Unbiased.
- The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as: legal relevance, necessity, reliability, and absence of bias.
In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements.
[21] In R. v. J. (J-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47, the Supreme Court described the operation of the general exclusionary rule in terms of criteria for reception “measured against the counterweights of time, prejudice and confusion.”
[22] The cost-benefit analysis demands a consideration of the extent to which the proffered evidence is necessary to a proper adjudication of the fact(s) to which that evidence is directed.
[23] When considering the prejudicial effect or the “cost” side of the ledger, the trial judge must not only consider the “various risks inherent in the admissibility of expert evidence; rather, whether the evidence may divert the jury’s attention from the real issue(s) in the case. This may further run the risk that the jury will “abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury”: Abbey, at para 90.
[24] It is settled law that the admissibility of an expert opinion may also depend on to what extent the opinion is founded on proven facts and to what extent does the proposed expert opinion supports the inference sought to be made from it.
Discussion:
[25] As mentioned during my brief oral ruling, the trial judge’s duty is to ensure that the gatekeeper function of admissibility of expert evidence or any evidence for that matter is considered. Appellate courts expect that trial judges will exercise this important gatekeeping function with diligence and due regard. See R. v. Sekhon, 2014 SCC 15, [2014] SCC 15, [2014] 1 S.C.R. 272.
[26] In this case, my consideration is on the 4th factor arising from Mohan, referred to as “a properly qualified expert”. The jurisprudence provides that reliability also forms an essential consideration in the overall mix of factors as well as the residual discretion a trial judge has regarding any evidence as to its probative value versus prejudicial effect. Some of the questions to be posed are: What are the quality assurance measures? What is the field of expertise? What are the particular expert qualifications within that specialization to apply on the issues raised here? To what extent has the expert employed proper, appropriate methodology in providing an opinion on the issue?
[27] It is true that an opinion must originate from an individual having greater knowledge or skill than the trier of fact. There must be connection between the opinion and the witness’ special knowledge, skill, and experience or education regarding the specific issue in contention. In other words, has the witness acquired some special particular or peculiar knowledge of the issues at hand.
[28] At the first trial, the accused was acquitted. Here, he has pleaded not guilty to second degree murder. There is no secret that the likely defence at this trial is that the accused acted in self-defence. The real issue for the jury is whether the Crown has negated self defence and whether the accused had the requisite state of mind to commit murder.
[29] In this case, we have an expert opinion from Dr. Edgecombe, a forensic pathologist who conducted the autopsy. Dr. Turner’s overall evidence is consistent with the attending pathologist. It is conceded that Dr. Turner is also eminently qualified, having performed over 5000 autopsies and having extensive exposure to voluminous shotgun-related deaths in the United States.
[30] Dr. Turner acknowledged that she had some limited training in blood stain pattern analysis. I observe that Dr. Turner was careful with her evidence during the voir dire, acknowledging that some of her opinions might be deferred to the blood stain pattern analyst and was cautious about her scope of expertise to the impugned issues.
[31] While I am mindful that it is the exclusive domain of the trier of fact to assess the competing inferences to be drawn, as trial judge I am able to conduct a limited analysis or weighing of such inferences in my overall assessment of the admissibility question.
[32] Thus, I must determine as a matter of law whether the proffered evidence is necessary, having regard to the existing evidentiary record and the issues raised by the prosecution and the defence. In my view, that is exactly what the proposed evidence entails here. I am persuaded that the evidence is not misleading in its effect in a manner out of proportion to its reliability.
[33] Dr. Turner’s credentials are impeccable. I am persuaded that she can formulate an opinion, while not merely regurgitating literature, research or other sources independent of her knowledge and experience.
[34] In sum, Dr. Turner is fully qualified by virtue of her extensive training and in-depth experience and can provide her opinion in the areas objected to by the defence. As with any expert, she is entitled to refer to other reports compiled for trial, including but not limited to, the blood stain analyst’s conclusions. Indeed, any alternate scenarios that she conceded at the previous trial may be put to her. It will be for the jury to assess the weight to be afforded to Dr. Turner’s opinion in this specific area in conjunction with the other evidence at trial.
. Conclusion:
[35] I am persuaded that Dr. Turner’s opinion as to the sequencing and potential positioning of the deceased at the time of the shots being discharged will assist with the jury’s determination of the core issues in this case. The requisite Mohan and Abbey threshold admissibility requirements for the introduction of expert opinion on these specific issues have been established by the Crown.
[36] In the overall cost benefit analysis, I find that the probative value of this evidence is not outweighed by its prejudice. The application to admit Dr. Turner’s expert opinion on the issues in this application is hereby granted.
A.J. Goodman J.
Date: December 6, 2022
COURT FILE NO.: CR 17-69
DATE: 2022-12-06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
- and -
PETER KHILL
RULING ON ADMISSIBILTY OF DR. TURNER’S EXPERT OPINION EVIDENCE ON SPECIFIC ISSUES
A. J. Goodman J.
Released: December 6, 2022