Court File and Parties
Court File No.: 22-11403959
Date: 2025-08-06
Ontario Superior Court of Justice
Between:
His Majesty the King
– and –
Chau Lam – and – Hue Lam (Accused)
Counsel:
Tasha Bobrovitz and Julian Whitten for the Crown
Ewan Lyttle and Brett McGarry for Chau Lam
Paolo Giancaterino, Amicus Curiae for Hue Lam
Heard: July 21, 2025; oral decision given July 22, 2025
Ruling on the Admissibility of Opinion Evidence of Dr. Saumil Dholakia as a Participant Expert
Somji J.
Introduction
[1] The Lam sisters, Chau and Hue Lam, are charged with first-degree murder in the death of their mother Kieu Lam. This trial commenced on June 9, 2025, before a judge and jury. The Crown, Chau Lam ("Chau") and Hue Lam ("Hue") have closed their case. The Crown now seeks to call rebuttal evidence from Dr. Saumil Dholakia, a general psychiatrist who treated Hue as a "participant expert" with respect to his assessment, diagnosis, and treatment of Hue Lam from February 8 to September 30, 2022, which I will refer to as the "treatment period." Dr. Dholakia last saw Hue one month before the death of Hue's mother.
[2] Hue did not testify in her own defence. However, she tendered evidence of seven medical records as business records. Five of these medical records were authored by Dr. Dholakia who examined Hue during the treatment period. Amicus curiae argued that the medical records were relevant because they informed, in part, Dr. Zeynep Selaman's expert opinion on Hue's state of mind at the time preceding the offence, which was relevant to the elements of the charge before the court and a potential defence of self-defence. Dr. Selaman is a forensic psychiatrist who was retained as a litigation expert (also referred to as an expert at large) qualified to testify before the jury with respect to her opinion on Hue's state of mind in the time period preceding the offence. As part of her testimony, Dr. Selaman explained what portions of Dr. Dholakia's treatment records she relied on in forming her mental disorder diagnosis of Hue and why she arrived at a different mental disorder diagnosis than that of Dr. Dholakia.
[3] The Crown objected to the admissibility of the seven medical records because they contained statements made by Hue which could not be tested, as well as medical opinions by the treating physicians. Amicus curiae conceded that it did not seek to rely on the hearsay statements or medical opinions for the truth of their contents. Amicus curiae did not oppose that the authors of the records be called to testify at trial.
[4] On July 18, 2025, I ruled that the medical records were admissible as business records. I found that the records had met the legislative and common law test for the admissibility of business records and that the probative value of the records was not outweighed by the prejudicial effect, including the concerns raised by the Crown. In addition, I ruled that admissibility of the records as business records did not preclude the Crown from calling the authors of the records should it require the content of the records be clarified and that any concerns about the use of the hearsay statements and medical opinions could be addressed by way of an instruction to the jury. In my ruling, I noted that it was anticipated that the Crown would be calling Dr. Dholakia, who authored five of the medical records in rebuttal.
[5] Amicus curiae does not take issue with the Crown calling Dr. Dholakia to testify about his observations and treatment of Hue as noted in his treatment records. However, amicus curiae opposes Dr. Dholakia being called as a "participant expert" and providing opinion evidence with respect to Hue's mental disorder diagnoses. Amicus curiae's primary objection is if Dr. Dholakia is qualified to testify as an expert, the Crown will invite the jury to compare and contrast the opinion evidence of Dr. Selaman who testified as a litigation expert with the opinion evidence of Dr. Dholakia who is testifying as a participant expert. Amicus curiae argues that the nature of the opinion evidence of each doctor is legally and factually distinct. Had the Crown wished to retain an expert to undermine Dr. Selaman's opinion on Hue's state of mind in the period before the offence, they should have retained a non-treating physician to do so which they failed to do. Amicus curiae argues that a jury charge is insufficient to address this risk of prejudice.
[6] Having considered the law on the admissibility of opinion evidence and the submissions of both parties, the following decision sets out why I find that Dr. Dholakia can testify as a participant expert and provide opinion evidence on his assessment and diagnosis of Hue during the treatment period. Below, I set out the scope and parameters of that opinion evidence.
The Law on Expert Opinion Evidence
[7] I adopt the law on the admissibility of expert opinion evidence as set out in my earlier rulings related to both Drs. Selaman and Bélanger, R v. Lam, 2025 ONSC 3940 paras 7-11, ONSC 4113 paras 9-13 and 4539 paras 32, and 33. In short, in order for Dr. Dholakia to be qualified to give opinion evidence as a participant expert, I must be satisfied on a balance of probabilities that:
a. the opinion evidence is logically relevant;
b. the opinion evidence is necessary to assist the trier of fact;
c. the opinion evidence is not subject to an exclusionary rule;
d. the expert is properly qualified to give the evidence, which includes the requirement that the expert be willing to fulfill their duty to the court to give evidence that is impartial, independent, and unbiased; and
e. if the opinion evidence is based on novel or contested science, the tendering party must establish the reliability of the science for that purpose.
[8] Once these requirements are met, I must determine whether the benefits of admitting the evidence outweigh its potential risks, which includes a continued consideration of the threshold factors of relevance, necessity, reliability, and absence of bias and weighing those factors against the consumption of time, and the potential for prejudice, including the likelihood that the evidence will confuse the trier of fact: R. v. Mohan, [1994] 2 S.C.R. 9; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330 ("Abbey 1"); R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40 ("Abbey 2"); and R. v. McRae, 2018 ONSC 3694.
[9] In the article, Sloan H. Mandel & Deanna S. Gilbert, "Calling the Treating Expert Witness: Concerns and Considerations", OBA Professional Development, Insurance Law Section, Anatomy of a Trial: Demonstrations and Debriefs, May 10-11, 2018, the authors identify three types of experts, at p. 13, citing Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721:
a. Litigation experts: experts engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding;
b. Participant experts: experts such as treating physicians, who formed their opinions based on their participation in the underlying events; or
c. Non-party experts: experts retained by a non-party to the litigation, for example accident benefits insurer examiners, who form their opinions based on personal observations and the examinations relating to the subject matter of the litigation for a purpose other than the litigation.
[10] While the article focuses on the civil context, I find the classification is helpful for the criminal context. The authors then go on to discuss the admissibility of participant experts such as treating physicians. They note that concerns have been raised as to whether a treating physician can be impartial and not act as an advocate given the physician's direct involvement in the events and the long-standing doctor-patient relationship. Nonetheless, the authors conclude that while the admissibility of treating physicians' expert opinions have been challenged, no absolute rule has been established against the admissibility as participant experts. Rather, the treating expert's testimony will be judged by the usual standards of admissibility, including the need for impartiality: at p. 9.
Amicus curiae has not identified any authorities to suggest that the legal test for the admissibility of a participant expert's opinion evidence is distinct from that of a litigation expert or that where a treating physician is called as a participant expert in a criminal trial and their treatment may require them to provide opinion evidence, they can do so without being subject to the rules governing the admissibility of expert evidence.
[11] As explained in David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), the distinction between what is fact and what is opinion is not always easy to discern. Where participant witnesses are called to testify as eyewitnesses to underlying facts and then proffer opinions as to what those facts signify, they should be qualified with respect to the opinion portions of their evidence: at para. 282. For example, the authors explain that a medical doctor who specializes in burns may testify about his/her observations of a burn on a patient but should s/he proffer an opinion as to what may have caused the burn, the expert admissibility rules ought to apply: at p. 282.
[12] This does not mean that all treating physicians must be qualified as experts to testify in court. It will depend on the circumstances and content of their anticipated evidence. Here, where it is anticipated that Dr. Dholakia will provide opinion evidence based on his expertise in general psychiatry to explain his assessment, diagnoses, and treatment of Hue's mental disorder as per his medical records, I find that the expert evidence admissibility rules ought to apply.
Issue 1: Is Dr. Dholakia Qualified to Give Expert Opinion Evidence?
[13] The Crown seeks to qualify Dr. Dholakia as a general psychiatrist to provide opinion evidence on his psychiatric assessment and diagnoses of Hue during the treatment period. In their memorandum filed July 21, 2025, they set out more specifically the factual information and medical opinions contained in each of the five medical records they seek to elicit. The Crown seeks to call Dr. Dholakia as a participant expert and not a litigation expert.
[14] Amicus curiae does not dispute Dr. Dholakia's qualifications in general psychiatry.
[15] Dr. Dholakia is a general psychiatrist with a subspecialty in geriatric psychiatry. He is presently employed at the Ottawa Hospital. He was educated in both India and Canada. In 2018, he came to Canada to do a master's in health science and bioethics at the University of Toronto and then obtained a fellowship in geriatric psychiatry and clinical pharmacology from McMaster University. Dr. Dholakia practiced general psychiatry in India from 2008 until his arrival in Canada. Following his additional training in Canada, he obtained a restricted certificate to practice psychiatry from the College of Physicians and Surgeons of Ontario in October 2021, which permits him to practice as a general psychiatrist at the Ottawa Hospital. He also teaches medical and graduate students in psychiatry at the University of Ottawa. He has published in peer review journals and presented at multiple conferences. He holds membership in multiple committees and associations related to psychiatry in India and Canada.
[16] Upon review of his curriculum vitae, hearing his testimony, and upon consideration of counsel's submissions, I find Dr. Dholakia has the specialized knowledge gained through study and experience in general psychiatry to provide opinion evidence on his assessment, diagnoses, and treatment of Hue during the treatment period: see Mohan, at para. 27.
[17] Amicus curiae does not object to Dr. Dholakia testifying on grounds related to inadequate notice for failure to file an expert's duty form in advance.
[18] Dr. Dholakia testified that he has not been retained by the Crown or any party to provide opinion evidence in this matter. He had no prior knowledge of the case. He was subpoenaed by the Crown and attended in response to the subpoena. This is the first time he has been subpoenaed to testify in a Canadian court as a treating physician. Based on his testimony and the evidence presented in the voir dire, including with respect to his communications with the police and Crown, I am satisfied that he is not here as an advocate for either party. I am satisfied that he understands his obligation to provide his evidence as a treating physician, including any opinion evidence, in a fair, objective, impartial, and unbiased manner. I am also satisfied that he understands that he is to confine his opinions to the period in which he assessed, diagnosed, and treated Hue.
Issue 2: Is the Proposed Opinion Evidence Logically Relevant?
[19] Dr. Dholakia testified that he initially saw Hue on February 8, 2022, at the outpatient psychiatric clinic of the Ottawa Hospital, following a referral from her admission in January 2022 for attempted suicide. As per his medical record, he explained that based on the history of information provided to him, a review of the treatment record from January 2022, and a physical and mental status examination, he diagnosed Hue with depressive disorder (i.e., depression) due to another medical condition. The medical condition was Multisystem Atrophy, which I will refer to as Parkinson's disease as this is the label that had been largely used by the witnesses in this case. Like Dr. Selaman, Dr. Dholakia relied on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, commonly referred to as the DSM-5, to arrive at his diagnosis.
[20] Dr. Dholakia testified that a depressive disorder due to another medical condition is characterized by at least two weeks of a depressed mood or marked loss of interest in pleasurable activities along with the presence of five symptoms from a collection of symptoms identified in the DSM-5. In Hue's case, these additional symptoms included suicidal ideation, loss of appetite, sleep issues, hopelessness, helplessness, sadness, and fatigue. Dr. Dholakia acknowledged that the symptoms for depressive disorder due to another medical condition are similar to those identified for major depressive disorder within the DSM-5. However, he understood that major depressive disorder is excluded as a diagnosis where there is a link or substantial link between the depressive symptoms and a medical condition which he found was the case here.
[21] Dr. Dholakia acknowledged in cross-examination that emotional and physical abuse can cause depressive symptoms. In addition, he was aware that Hue had suffered depressive symptoms five years earlier for which he had little information and that she went to emergency in January 2022 as a result of a suicide attempt, which was reported by her to have been triggered by a remark made by her mother. However, he diagnosed her depression to have a link or substantial link to her medical condition, resulting in the diagnosis of depressive disorder due to another medical condition. In that regard, he relied on the information provided to him by Hue in their first meeting, and in particular her expression of frustration with the limitations caused by her medical condition.
[22] Nonetheless, Dr. Dholakia acknowledged in his diagnosis that a perpetuating factor of Hue's depressive symptoms were the interrelationship issues with her mother. His treatment of Hue also took this into consideration and is reflected in the steps he took to refer her to a social worker, to discuss with her family doctor the option of placing Hue in a nursing home, and to provide her with some problem-solving skills to deal with her mother.
[23] During the voir dire, Dr. Dholakia reviewed and explained his assessment, diagnosis, and treatment of Hue in each of their five medical visits. On their last visit of September 30, 2022, he found that Hue's diagnosis of depressive disorder due to another medical condition continued but was in partial remission. He arrived at this opinion based on the symptoms and information she presented at the time, which included that her mood had improved, her appetite and sleep were better, she was beginning to enjoy some activities, and her pain was well-controlled. Hue's sister, Chau, also reported to the doctor that Hue appeared to be 60% better.
[24] The Crown argues that Dr. Dholakia's evidence with respect to Hue's state of mind between February and September 30, 2022, is equally relevant to the issues of credibility, motive, intent, planning and deliberation, or the defence of self-defence for which Dr. Selaman's opinion was found to be logically relevant.
[25] The Crown takes the position that as of September 30, 2022, a month before her mother's death, Hue was diagnosed by Dr. Dholakia as having a depressive disorder due to another medical condition and that the depressive disorder was in partial remission. The Crown argues that on this basis, they are entitled to take the position, contrary to the evidence of the accused, that Hue's situation did not change in the month leading up to her mother's death and consequently, her condition remained as was diagnosed by Dr. Dholakia on September 30, 2022. In tendering Dr. Dholakia's evidence as to Hue's state of mind on September 30, 2022, they are not seeking to contrast his opinion with that of Dr. Selaman, but to present to the jury Hue's state of mind as diagnosed by one physician on September 30, 2022. I would agree.
[26] The Crown is not seeking to undermine Dr. Selaman's diagnostic impression and opinion evidence on the grounds that another psychiatrist arrived at a different opinion from her nor would they be permitted to fairly take such a position. Dr. Selaman was retained as a "litigation expert" to provide opinion evidence on the mental disorders of Hue and Chau in the period preceding the offence. In arriving at that opinion, Dr. Selaman considered a significantly large amount of information which included, a review of the entirety of Hue's medical records between 2021-2022 (approximately 600 pages), interviews with Hue and Chau, Hue's childhood, social, familial, educational, employment, and cultural history as provided by Hue and her siblings Chanh and Minh, statements of Hue and Chau to the police, officer's notes regarding the time period of the offence, police statements and preliminary hearing transcripts of the siblings Chanh and Minh, and Chau's testimony at trial. On the basis of this comprehensive information, Dr. Selaman arrived at a different diagnosis than Dr. Dholakia. She opined that Hue was suffering from a major depressive disorder with recurrent episodes.
[27] However, as Dr. Selaman explained in her testimony, she arrived at a different diagnosis than Dr. Dholakia not only because she examined a larger volume of information, but because she had information that was not available to Dr. Dholakia. More specifically, she had information that the mother's abuse escalated after Hue's last visit to Dr. Dholakia and in particular, the week preceding the alleged offence. In my ruling related to Dr. Selaman, I set out the evidentiary record before the jury upon which she based her opinion, including evidence of the escalation of abuse.
[28] Having said that, it will be up to the jury to determine what evidence they accept as fact at trial. The jury may or may not accept that there was an escalation of abuse that impacted Hue's mental state in the month before the offence. In this regard, it is open for them to find that Hue's mental disorder remained as it was when diagnosed by Dr. Dholakia on September 30, 2022 – a depressive disorder that was due to another medical condition and that it was in partial remission. They are also entitled to determine what weight, if any, to give to that opinion, based on considerations they would make in relation to the assessment of any opinion evidence. That includes: the expert's education, training and experience; the reasons given for the opinion; the suitability of the methods used; when the opinion was made and the information available to the expert at the time, and the rest of the evidence in the case. As the Crown fairly pointed out, even in the absence of Dr. Selaman's evidence, the Crown would be entitled to ask the jury to place weight on Dr. Dholakia's evidence based on these considerations.
[29] Furthermore, I find that any concerns defence may have that the Crown will invite the jury to contrast the opinions of the litigation expert and participant expert can be addressed by setting parameters in the questioning of Dr. Dholakia and providing a clear direction to the jury about how to address the different expert opinions. The Crown has stated in its legal memo and in oral submissions that it does not intend to elicit Dr. Dholakia's opinion of Hue's mental state beyond September 30, 2022. The Crown intends to elicit evidence from Dr. Dholakia within the confines of his medical records, and in fact, I find their questions during the voir dire reflected that approach.
[30] I am also not persuaded that Dr. Dholakia would intentionally opine beyond his expertise or outside the scope of his treatment records. Dr. Dholakia testified that he is not a forensic psychiatrist and does not have the expertise to opine more broadly on why people may behave a certain way. He explained that as a general psychiatrist, he limits himself to the mental status examination of the patient and a consideration of the biological, social, and psychological factors presented at the time of the examination. While a forensic psychiatrist would also consider this, he understands that they would look at other factors as well. Furthermore, when subpoenaed, he specifically inquired with the police and Crown in what capacity he would be attending court, whether as a treating physician or as an expert witness, which I understand to mean litigation expert. In his communications with the police, he fairly pointed out that he does not have expertise in forensic psychiatry and that none of his past assessments of Hue were done with a forensic lens.
[31] In conclusion, I find the proposed opinion evidence is logically relevant to the issues at trial, which includes credibility, motive, intent, planning, and elements of the defence of self-defence should it be put to the jury.
Issue 3: Is the Evidence Necessary?
[32] For the same reasons set out in my previous decisions related to Dr. Selaman, I find that the evidence is necessary. Psychiatric evidence of the assessment, diagnoses, causes, and impacts of mental disorders is not within the realm of understanding of the average juror. While people may have experience with mental disorders such as depression because they have experienced it themselves or with loved ones, this knowledge is not as comprehensive as the proposed opinion evidence that would be provided by Dr. Dholakia as a general psychiatrist.
[33] Amicus curiae argues that Dr. Dholakia's medical records are already before the jury, and it is therefore unnecessary to call him. However, as the Crown rightly points out, the opinion evidence cannot be relied on for the truth of its contents and absent an admission by amicus curiae, the jury would be accordingly directed not to rely on it.
[34] Furthermore, it was amicus curiae who has put Dr. Dholakia's evidence into issue. Amicus curiae introduced Dr. Dholakia's medical records as business records knowing that the Crown was not precluded from calling the author of the records to testify with respect to any medical opinions contained therein. Furthermore, those medical records are before the jury. Dr. Selaman, the defence litigation expert, has relied and opined on them. To suggest that the Crown should limit Dr. Dholakia's evidence to only his factual observations would be unfair. In addition, as already noted, distinguishing between fact and opinion within the record of a treating physician is not always easy to discern and to determine and carve out particular lines within the record would be extremely challenging. In the circumstances of this case, I find there is no basis for doing so.
Issue 4: Does the Proposed Evidence Meet the Remaining Threshold Factors?
[35] The proposed opinion evidence is not subject to any exclusionary rule.
Issue 5: Is the Expert Evidence Sufficiently Beneficial to the Trial Process to Warrant Its Admission?
[36] In the final stage of the analysis, the trial judge must exercise their gatekeeping function and be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. The requirements of the gatekeeping function are aimed to ensure that expert evidence is not routinely admitted with only its weight to be determined by the trier of fact: Abbey 1, at paras. 78-79; White Burgess, at para. 20.
[37] The four factors of legal relevance, necessity, reliability, and absence of bias continue to play a role in weighing the overall competing considerations in admitting the evidence. These factors must be measured against potential prejudicial effects such as consumption of time, prejudice, and confusion: White Burgess, at paras. 24, 54. A trial judge should not exclude the proposed expert opinion evidence where it is tendered on behalf of the accused in a criminal case unless the prejudice substantially outweighs the probative value of the evidence: see R. v. Collins, 160 C.C.C. (3d) 85 (Ont. C.A.), at para. 19, citing R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 390 and R. v. S.C.B., 119 C.C.C. (3d) 530, at p. 541 (Ont. C.A.).
[38] For the same reasons outlined above, I find Dr. Dholakia's evidence is logically relevant to the issues of credibility, motive, intent, planning and deliberation, and self-defence should it be put to the jury.
[39] I found Dr. Dholakia was fair in his testimony. He did not exaggerate or minimize his observations of his patient, Hue, in his evidence. When he did not understand a question, he asked for clarification. If he could not recall something, he stated so. If a notation was not made in his treatment record, he identified that and qualified his answers accordingly. Given Dr. Dholakia's qualifications and expertise in general psychiatry and having heard his explanations for how he conducted his assessment and arrived at his opinions, I find his opinion evidence to be reliable.
[40] Furthermore, I disagree with amicus curiae, for the reasons explained above, that the proposed opinion evidence should be excluded because of a risk that the jury will rely on it to compare and contrast Dr. Selaman's opinion. I find this risk can be addressed by limiting the scope of Dr. Dholakia's questioning before the jury, explaining to the jury the role and scope of each expert's evidence, and directing the jury not to contrast the opinions as they were arrived at with different considerations, with different information, and at different times. I will also consider, when appropriate, what directions should be given to counsel with respect to this concern in closing submissions.
[41] I do not find that the introduction of the evidence would confuse the jury. On the contrary, as explained above, I find that in these circumstances parsing out Dr. Dholakia's medical records line by line and instructing the jury that they may rely on some portions as observations for the truth of their contents and disregard others would be cumbersome and likely to confuse the jury. The Crown proposed a similar approach on the admissibility application for the medical records as business records and amicus curiae objected. I rejected the suggestion of line by line redactions for similar reasons.
[42] The additional expert evidence will require another half or full day following which all evidence will be in at trial.
[43] While amicus curiae initially raised concerns about a meeting between Dr. Dholakia and the Crown and counsel for Chau questioned Dr. Dholakia about the scheduling, timing, and content of the meeting, both amicus curiae and counsel for Chau have indicated that they are not objecting to the admissibility of his opinion evidence on this basis. They are also not seeking to exclude Dr. Dholakia's evidence on grounds related to confidentiality of the medical records or the patient-doctor relationship. In addition, amicus curiae indicated it is not their intention to question Dr. Dholakia about this meeting before the jury. Consequently, I will not adjudicate any further on this issue.
[44] Having reviewed Dr. Dholakia's medical records, having heard his testimony on the voir dire, and having considered counsel's submissions, I find the probative value of the evidence is not outweighed by any prejudicial effect. In undertaking the cost-benefit analysis on the admission of the opinion evidence, I have considered again the threshold factors of relevance, necessity, reliability, and whether or not there is any bias in the proposed evidence. Having weighed the factors against the consumption of time this evidence will take, whether the evidence might confuse the jury, and any other potential prejudice, I find the probative value of the evidence is not outweighed by any prejudicial effect.
Conclusion and Parameters
[45] In conclusion, Dr. Dholakia will be able to provide opinion evidence on his assessment, diagnosis, and treatment of Hue during the treatment period. Neither counsel shall seek to elicit opinion evidence beyond this period and opinion evidence that does not pertain to his treatment of Hue. Furthermore, upon request by defence upon reliance of the case of The Queen v. Laboucan, 2010 SCC 12 at paras 11 and 12 and out of an abundance of caution, the Crown shall not elicit evidence from Dr. Dholakia in a manner that suggests that Hue had a motive to lie. I also find that it would be inappropriate for the Crown to ask questions on malingering as there is no evidence within the records that Dr. Dholakia had any concerns that Hue was exaggerating her symptoms.
[46] These parameters do not restrict my ability as gatekeeper to disallow any questions during her testimony even in the absence of an objection from the opposing party.
[47] Finally, should there be any discrepancy between the written and oral ruling, the written ruling shall prevail.
Somji J.
Released: August 6, 2025