Her Majesty the Queen - v. -, 2016 SKPC 115

0 IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 115 Date:September 2, 2016 Information: 33551407 Location:Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - T.M. Appearing: Mr. C. White For the Crown Ms. K. DeMars-Krentz For the Accused DECISION ON EXPERT WITNESS VOIR DIRE M. HINDS, J INTRODUCTION [ 1 ] T.M. is charged that on or about the 21st day of August A.D. 2015, at Regina, Saskatchewan, he committed an assault on his infant son, M.M. and breached a condition of his undertaking to not be at the residence of S.K. contrary to sections 266 and 145(5.1) respectively, of the Criminal Code .

[ 2 ] Prior to trial the Crown provided the defence with a notice of expert witness regarding Dr. Juliet Soper who examined and treated M.M. (infant) on August 21, 2015. At that time the Crown intended to qualify Dr. Soper as an expert in the area of child abuse and pediatric medicine. On July 18, 2016 the Crown had a change of heart and sought to qualify Dr. Soper as an expert witness capable of giving opinion evidence on the identification and treatment of injuries and ailments in children. A voir dire was held respecting Dr.

Soper’s qualifications. [ 3 ] During the course of argument on the voir dire the Crown advanced the position that Dr. Soper should also be able to provide her opinion as to whether the injuries the child received are consistent with certain factual scenarios, including an accidental fall. As a result of an exchange with the Court on this topic the Crown sought to amend its application to qualify Dr. Soper as an expert witness capable of giving opinion evidence on the identification and treatment of injuries and ailments in children and all potential underlying reasons for the same.

The court permitted this amendment. [ 4 ] At the conclusion of the voir dire the defence took the position that Dr. Soper can be qualified as a Pediatrician who can diagnose and treat children under 16 years of age. The defence specifically takes the position that Dr. Soper can testify regarding her own dealings with, observations of and treatment of M.M.. However, the defence contends that Dr. Soper should not be permitted to testify as to the causation of the infant’s injuries.

ISSUE [ 5 ]The sole issue before the court is whether or not the Crown has satisfied its burden on a balance of probabilities [ see R v Abbey 2009 ONCA 624 , 246 CCC (3d) 301 ] to show that Dr. Soper is a properly qualified expert in the areas it seeks to elicit opinion evidence. THE LAW [ 6 ]In White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23 , [2015] 2 SCR 182 [ White Burgess ] the Supreme Court of Canada recently set out the legal requirements for the admissibility of expert evidence.

The Supreme Court determined that opinion evidence from expert witnesses can be admitted only if it passes a two-step admissibility analysis which Mr. Justice Kalmakoff in PS International Canada Corp.(c.o.b. Seaboard Specialty Grains and Foods) v Palimar Farms Inc. 2016 SKQB 232 [ PS International ] summarized as follows: 34 The first step in the White Burgess analysis is to determine whether the proposed evidence meets the four threshold requirements of admissibility.

Expert evidence will meet the threshold for admissibility only if (1) it is logically relevant, (2) it is necessary to assist the trier of fact, (3) it is not subject to any exclusionary rule, and (4) the proposed expert is properly qualified, which includes being impartial, independent and unbiased. 35 The second step of the analysis is the "gatekeeper stage", which requires the judge to balance the potential risks and benefits of admitting the evidence, in order to decide whether the potential benefits justify the risks: White Burgess , at paras 23-24.

This requires consideration of the degree to which the opinion evidence is relevant, necessary, reliable, and unbiased, as well as any risk that the evidence will be confusing, prejudicial, or too time consuming: White Burgess , at paras 23-25 and 54.

[7]In PS International Justice Kalmakoff went on to describe the importance of the judge’s function as gatekeeper as follows: 36 The judge's function as gatekeeper is of particular importance. Part of the gatekeeper function includes carefully identifying and delineating the scope of expertise within which the witness will be permitted to give opinionevidence.

In Vigoren v Nystuen, 2006 SKCA 47, 279 Sask R 1, the Court of Appeal described the importance of properly identifying thescope of the witness' expertise at para. 67: 67In recent years, this Court and the Supreme Court of Canada have consistently underlined the need for trial judges to carefully assess and identify the scope of the expertise of an expert witness in advance of him or her testifying. For example, in Parker v. Saskatchewan Hospital Assn., [2001] 7 W.W.R. 230 (Sask.

C.A.), Cameron J.A. stated as follows at para. 112: Again, this ties in with the need to carefully qualify expert witnesses before they testify. All reasonable efforts should be made to ensure they are qualified neither too narrowly nor too widely. This may entail enquiry into the nature and extent of the opinions to which they propose to testify. While care at the qualification stage is especially important in jury cases, it remains of considerable importance in non-jury cases as well.

A rigorous approach at this stage can avoid difficulty, especially the difficulty posed by the potential reception of opinion evidence that transcends the scope of expertise of the witness. Strictly speaking such evidence is not admissible, and its admission can be troublesome. See also: R v Mohan, (SCC), [1994] 2 SCR 9; R v J.-L.J., 2000 SCC 51 , [2000] 2 SCR 600. [8]In Abbey, Doherty J.A. also speaks of the necessity of the trial judge to determine the nature and scope of the proposed expert evidence. He stated as follows at paragraphs 62 and 63: [62] The admissibility inquiry is not conducted in a vacuum.

Before deciding admissibility, a trial judge must determine the nature andscope 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. Acautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted,are essential.

The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals onappeal: see, for example, R. v. Ranger (2003), (ON CA), 67 O.R. (3d) 1 (C.A.); R. v. Klymchuk (2005), (ON CA), 203 C.C.C. (3d) 341 (Ont. C.A.); R. v. K. (A.) (1999), (ON CA), 45 O.R. (3d) 641 (C.A.), at paras.123-35; R. v. Llorenz (2000), (ON CA), 145 C.C.C. (3d) 535 (Ont. C.A.), at paras. 33-40. [63] A determination of the scope of the proposed expert opinion evidence and the manner in which it may be presented to the jury ifadmissible will be made after a voir dire.

The procedures to be followed on that voir dire are for the trial judge to decide. Sometimes theexpert must be examined and cross-examined on the voir dire to ensure that the proposed evidence is properly understood. At theconclusion of the voir dire, the trial judge must identify with exactitude the scope of the proposed opinion that may be admissible. He orshe will also decide whether certain terminology used by the expert is unnecessary to the opinion and potentially misleading: see R. v. G.(P.), 2009 ONCA 32 , [2009] O.J. No. 121, 242 C.C.C. (3d) 558 (C.A.), at para. 16. Admissibility is not an all or nothing

proposition.6 Nor is the trial judge limited to [page351] either accepting or rejecting the opinion evidence as tendered by one party or theother. The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the languageused to frame that opinion: see, for example, R. v. Wilson, (ON SC), [2002] O.J. No. 2598, 166 C.C.C. (3d) 294(S.C.J.). [9]In R v Pham, 2013 ONSC 4903, 300 CCC (3d) 111 [Pham], Durno J. set out a list of non-exclusive factors to be followed when considering the qualifications of an expert when he said the following at para. 31: 31. In

summary, the following non-exhaustive list of factors assist in determining whether a tendered expert witness is qualified: * the manner in which the witness acquired the special skill and knowledge upon which the application is based; * the witness' formal education (i.e. degrees or certificates); * the witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons); * the witness' membership and participation in professional associations related to his or her proposed evidence; * whether the witness has attended additional courses or seminars related to the areas of evidence in dispute; * the witness' experience in the proposed area(s); * whether the witness has taught or written in the proposed area(s); * whether, after achieving a level of expertise, the witness has kept up with the literature in the field; * whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whetherthe previous evidence was contested; * whether the witness has not been qualified to give evidence in the proposed area(

s) and if so, the reason(

s) why; and * whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who mightgive the evidence. [10] I am also aware of the voir dire decision in R v Goforth, 2016 SKQB 8 where in Madam Justice Gunn determined that Dr. Leibel amedical colleague of Dr. Soper who also works on the Child and Family Medical Services Team was not able to testify about heropinion as to the cause of any of the injuries sustained by two children she examined.

For the reasons which follow I am of the viewthat case is distinguishable from the case at hand in that unlike Dr. Leibel, Dr. Soper is a medical doctor with a specialty in Pediatrics. In addition, Dr. Soper is the head of the Pediatrics department at the General Hospital and has extensive training and experience indealing with bruises, fractures, burns and head injuries on children. The Evidence of Dr. Soper [11]Dr. Juliet Soper is the Head of Pediatrics at the Regina General Hospital in Regina, Saskatchewan. Dr.

Soper received her Bachelor in Medicine and Surgery (MBChB) from the University of Auckland, New Zealand in1997. The MBChB is the non North American equivalent of the M.D. (Medical Doctor) designation. She began the practice ofmedicine in New Zealand. In 1999 she began her training to become a pediatrician in 1999. She obtained her designation as aPediatrician in 2010. Part of her training involved being part of a team of doctors working at a Child Advocacy Centre for four monthswhere she personally saw one- two children each day who were being looked at for maltreatment.

She saw children bruises, fractures,burns and brain injuries. A lot of the injuries she observed on children were a result of blunt force trauma. [12]Dr. Soper came to Canada on December 28, 2011 and began her duties as a Pediatrician. She is under contract with the Regina Qu’Appelle Health Authority (RQH) where she spends 60% of her time as a clinical pediatrician and40% of her time as the Head of Pediatrics at the Regina General Hospital. As a clinician she takes

part in acute care where she seeschildren in the emergency department who have been referred from the emergency room doctors. She also sees all the children whohave been admitted to the Regina General Hospital. Dr. Soper is also on call for the Child and Family Medical Services Team which

receives referrals from other professionals who suspect a child has been injured as a result of maltreatment, suffer the effects of neglect or have been sexually assaulted. The team attempts to be on call 24 hours a day. She works with one other pediatrician, several medical doctors, a nurse practitioner and social worker. The team meets once a month for peer review which involves a review of each other’s cases. She also takes

part in a monthly clinic for historical cases. Dr. Soper estimates that 15 to 20 % of her time as a pediatrician is spent on the Child and Family Medical Services Team cases. As part of this team she has been asked to assist where there is suspected blunt force trauma to children. These type of cases occur between one-two to five-six cases per month. [ 13 ]Dr. Soper is a member in good standing of the Royal College of Physicians and Surgeons of Canada and also teaches pediatrics to medical students and residents. She is a member and a member at large of the Child and Youth Maltreat

Section within the Canadian Pediatric Society. She is familiar with a practice statement from the Pediatric Society on “bruising” which she has incorporated into her practice and has mostly informed the physician pre-printed order which she and her colleagues wrote for assisting children with bruises where maltreatment is suspected. [ 14 ]Each year Dr. Soper attends the Canadian Pediatric Society Symposium on Advanced Practices in Child Maltreatment. Dr. Soper also regularly reads medical literature respecting child maltreatment.

She has attended the Child Maltreatment Conference held in San Diego and Neuro Imaging and Child Abuse conference held in Orlando in February 2016. Dr. Soper has recently presented at the Provincial Grand Round Pediatrics on the timing of injuries including bruises, fractures, burns and head injuries from a child maltreatment perspective. [ 15 ]On one previous occasion Dr. Soper has testified at a preliminary hearing in the Provincial Court of Saskatchewan as a treating Pediatrician. [ 16 ]On cross-examination Dr. Soper testified that: a. In the previous court case she was called as a witness by the Crown.

She has never been asked to testify by defence counsel. She indicated that she would testify on behalf of the defence if asked. She understands her role is to present what she sees and the medical evidence “neither for or against”. b. Most of the time when she and the medical team are looking at injuries on a child they work in probabilities and talk in terms of what is the most likely cause. c. She agreed that there would be very few injuries to a child where she could say with 100% certainty what the cause was. She works in probabilities.

Sometimes injuries are patterned or there are particular patterns where the cause of the injury is more obvious or there many be a higher degree of certainty on a cause. She can generally say an injury was caused from blunt force trauma as opposed to saying specifically what caused the blunt force trauma. d. She presented at a Prevention Matters Conference in Saskatoon in 2015. The attendees at this conference were people who worked with children such as teachers, social workers and people from Kids First.

She created a power point presentation entitled “When to suspect child maltreatment and what to do about it.” e. She received a Teamwork Award from the Regina Police Service in 2013 in recognition of multi-agency investigative work in protecting the health and safety of young children. f. She does not consider herself an investigator in cases involving young children. She provides medical care to children and as part of that there is an obligation to work with police and social services in Saskatchewan where police, social services or others suspect child maltreatment.

In those circumstances she will provide her opinion and medical report to police and social work agencies. g. She receives per diem remuneration from RQH for all of her work including her work involving suspected child maltreatment. She does not receive any pay from any law enforcement agency. h. Within the Canadian Pediatrics Society there is a Child Maltreatment section. In the

United States a Pediatrician can get more training to become a specialist in Child Maltreatment. As of the fall 2015 Canadian Physicians can now apply to be recognized by the Royal Canadian College of Physicians and Surgeons in this area. At this time she does not have any specific qualifications that says she is a specialist in Child Maltreatment. i. She has received four months of training between August and December 2009 at the Auckland multi-professional advocacy centre for child protection concerning what causes bruises.

She was trained to look for the number of bruises a child has, the number of body surfaces the bruises are on, the pattern of the bruises, the child’s developmental age and whether at that age the child is capable of the types of activities that are said to have caused the bruising. In addition she was trained to look at the child’s general health as there are medical conditions that can cause some bruising. She has also read the medical literature about what causes bruises and the different features of bruises. In addition she attends conferences and does self directed learning on bruises. j.

She is not a pathologist. k. Bruises can not be timed based on their appearance. l. She has one peer reviewed publication from 2006. She has no publications relating to child maltreatment. She has made three presentations to the public on child maltreatment. Is Dr. Soper Qualified as an Expert Witness? [ 17 ] In applying the principles set out in Mohan , Abbey, White Burgess and Pham I make the following determinations: I. Dr. Soper is a qualified Pediatrician practising at the Regina General Hospital.

She is also the head of Pediatrics and a key member for the Child and Family Medical Services Team which receives referrals from other professionals who suspect a child has been injured as a result of maltreatment. She has received training respecting bruises, fractures, burns and head injuries on children. She has experience with children who have bruises, fractures, burns and head injuries and keeps current with the literature regarding the same. She is a member and a member at large of the Child and Youth Maltreat

Section within the Canadian Pediatric Society. II. Upon hearing Dr. Soper's evidence I am satisfied on the threshold inquiry that her evidence meets the four factors as set out in Mohan , namely: a. Relevance -- She examined and treated the infant victim on August 21, 2015. She observed non specific bruises on multiple body surfaces of the infant, victim. This is relevant to the matter before the court; b. Necessity -- I am satisfied that her evidence is necessary to assist the court in determining the potential underlying reasons, if any, for the bruises on the infant, victim. c. Given the qualifications of Dr.

Soper as set out in her curriculum vitae plus her viva voce evidence, I am satisfied there is no exclusionary rule that has application; d. I have reviewed her curriculum vitae and having heard her viva voce evidence as to her education, training, experience and the fact that she examined and treated the infant victim on August 21, 2015 I find that she is qualified to express an opinion as to the potential underlying reasons, if any, for the bruises on the infant, victim; e. I am satisfied that Dr.

Soper is able and willing to be impartial and to provide an objective assessment respecting the infant complainant, based on her independent judgment; f. After hearing the evidence of Dr. Soper I am satisfied that she is willing to fulfill her duty to the court. She was subjected to cross- examination and after reviewing that evidence I am satisfied that she is impartial, independent and unbiased. I find that the Crown has satisfied the threshold requirement. [ 18 ]The next step I must consider is my role as a gate-keeper to exercise exclusionary discretion. Again, after hearing Dr.

Soper's evidence in-chief and cross-examination, I have no concerns about her independence or impartiality. I am satisfied that the potential assistance of her evidence regarding potential underlying reasons for the marks and bruises on the infant, far outweigh any risk that are associated with expert witness evidence. [ 19 ]In

summary, I find that Dr. Soper is qualified to give her opinion on the identification and treatment of injuries and ailments in children. I also find that Dr. Soper is qualified to give her opinion respecting the injuries (in particular bruises) she observed on the infant and the potential underlying reasons for the same. ____________________________ M. Hinds, J