HIS MAJESTY THE KING - v. -, 2023 SKKB 58

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 58 Date: 2023 03 21 Docket: CRM-RG-00315-2021 Judicial Centre: Regina BETWEEN: HIS MAJESTY THE KING - and - CHELSEA WHITBY PUBLICATION RESTRICTION: The publication of these reasons is restricted pursuant to ss.486.4(1) of the Criminal Code such that any information that could identify the complainant shallnot be published in any document or broadcast or transmitted in any way. Counsel: Adam Breker and Aly Sparks for the Crown Darren Kraushaar and Nicole Krupski for the accused VOIR DIRE JUDGMENT DAWSON J. March 21, 2023 [1] The Crown tenders Dr.

Juliet Soper as an expert “medical doctor with a speciality in general paediatricsqualified to give expert opinion evidence on medical issues in children, including the nature, timing and cause of childhood injuries.” [2] The Crown, in their brief, provided further clarity on the expert opinions that it seeks to have Dr. Soperprovide which include: 76. … i. Her diagnosis of [E.] having sustained trauma (aka injuries), including her consideration and exclusion of other potentialmedical diagnoses. ii.

Her opinion as to the possible and/or probable causes of any diagnosed trauma, including a consideration of proposedhypotheticals. We include cause to mean her opinion as to (

a) the mechanism by which the trauma could have occurred individuallyand/or collectively and (

b) the nature or type of force that would be consistent or inconsistent with having caused the injury. iii. The symptomology of any of the diagnosed trauma. In other words, how would the trauma noted have been expected toprogress over time, from the point at which the trauma was sustained. The Crown identified that it seeks to have Dr. Soper provide expert evidence relating to a brain injury, fractures and bruising. [3] A voir dire was held in which the defence took issue with Dr. Soper’s qualifications, her impartiality and herability to offer opinion evidence in the areas proffered by the Crown.

THE LAW [4] Expert opinion evidence is presumptively inadmissible. The admissibility of expert opinion evidence isdetermined by application of a two-stage test, as confirmed in 2015 by the Supreme Court of Canada in White Burgess Langille Inman vAbbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 [White Burgess]. In that case, Justice Cromwell reviewed the developmentof the law on the admissibility of expert evidence and noted that the starting point was R v Mohan, (SCC), [1994] 2 SCR9 [Mohan] as referenced in White Burgess:

[ 19 ] .. Mohan established a basic structure for the law relating to the admissibility of expert opinion evidence. That structure has two main components. First, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert ( Mohan , at pp. 20-25; see also Sekhon [ R v Sekhon , 2014 SCC 15 , [2014 1 SCR 272 ], at para. 43).

Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21.

This is the second component, which the subsequent jurisprudence has further emphasized: Lederman, Bryant and Fuerst, at pp. 789-90; J.-L.J. [ R v J-L.J. , 2000 SCC 51 , [2000] 2 SCR 600 ], at para. 28. [ 5 ] The Supreme Court of Canada in White Burgess at para 22 adopted the framework analysis of the Ontario Court of Appeal in R v Abbey , 2009 ONCA 624 , 246 CCC (3d) 301 [ Abbey ] indicating that the proponent of the expert evidence must establish the threshold requirements of admissibility, which are relevance, necessity, absence of an exclusionary rule and a properly qualified expert.

In addition, in the case of novel or contested science, the proponent must establish the reliability of the underlying science. Evidence that does not meet these threshold requirements should be excluded. The Supreme Court went on to state at the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the benefits justify the risks, in other words the “reliability versus effect factor” ( Mohan at 21). 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 opinion evidence. [ 6 ] White Burgess also identified that expert witnesses have a duty to the court to give fair, objective and non- partisan evidence. There are three concepts that relate to the duty the expert owes to the court. They are: [32] … impartiality, independence and absence of bias. 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: P. Michell and R. Mandhane, "The Uncertain Duty of the Expert Witness" (2005), 42 Alta. L. Rev. 635, at pp. 638- 39. These concepts, of course, must be applied to the realities of adversary litigation.

Experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert's independence, impartiality and freedom from bias. [ 7 ] The Supreme Court in White Burgess indicated at para. 34 that a proposed expert’s independence and impartiality goes to admissibility and not simply to weight. The court indicated: [34] … 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.

Once that threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role. [ 8 ] Justice Cromwell in White Burgess also identified the following threshold and burden in respect of the issue of the expert’s impartiality as paras. 46 and 48-50: [46] I have already described the duty owed by an expert witness to the court: the expert must be fair, objective and non-partisan. As I see it, the appropriate threshold for admissibility flows from this duty.

I agree with Prof. (now Justice of the Ontario Court of Justice) Paciocco that "the common law has come to accept ... that expert witnesses have a duty to assist the court that overrides their obligation to the party calling them. If a witness is unable or unwilling to fulfill that duty, they do not qualify to perform the role of an expert and should be excluded": "Taking a 'Goudge' out of Bluster and Blarney: an 'Evidence-Based Approach' to Expert Testimony" (2009), 13 Can. Crim L. R. 135, at p. 152 (footnote omitted).

The expert witnesses must, therefore, be aware of this primary duty to the court and able and willing to carry it out. … [48] Once the expert attests or testifies on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable and/or unwilling to comply with that duty. If the opponent does so, the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence.

If this is not done, the evidence, or those parts of it that are tainted by a lack of independence or by impartiality, should be excluded. This approach conforms to the general rule under the Mohan framework, and elsewhere in the law of evidence, that the proponent of the evidence has the burden of establishing its admissibility. [49] This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it.

The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible.

In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court.

Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

[50] As discussed in the English case law, the decision as to whether an expert should be permitted to give evidence despite having aninterest or connection with the litigation is a matter of fact and degree. The concept of apparent bias is not relevant to the question ofwhether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert's interest orrelationship with a party, the question is not whether a reasonable observer would think that the expert is not independent.

The questionis whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court toprovide fair, non-partisan and objective assistance. [9] Justice Cromwell described the situating analysis of the impartiality within the Mohan framework andconcluded that the threshold inquiry is best addressed at the qualified expert stage of the Mohan framework (White Burgess at paras 54and 55).

As a proposed expert’s independence and impartiality goes to admissibility and not simply to weight. [10] The admissibility of an expert’s opinion and the considerations the court must address including scope andboundaries of such evidence were explained in detail by the Court of Appeal for Ontario in Abbey: [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, [2003] O.J.

No. 3479 (C.A.); R. v.Klymchuk, (ON CA), [2005] O.J. No. 5094, 203 C.C.C. (3d) 341 (C.A.); R. v. K. (A.) (1999), (ON CA), 45 O.R. (3d) 641, [1999] O.J. No. 3280 (C.A.), at paras. 123-35; R. v. Llorenz, (ON CA), [2000] O.J. No.1885, 145 C.C.C. (3d) 535 (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 nothingproposition.

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.). [64] The importance of properly defining the limits and nature of proposed expert opinion evidence and the language to be used by theexpert is one of the valuable lessons learned from the Inquiry into Pediatric Forensic Pathology in Ontario. That inquiry examined theforensic work of Dr. Charles Smith, who at the time was considered to be a leading pediatric pathologist in Ontario. The inquirydetermined that, among other failings, Dr.

Smith often went beyond the limits of his expertise when offering opinions in his testimony.His excesses were sometimes not caught by the court or counsel and, along with other shortcomings, led to several miscarriages ofjustice. Goudge J.A., the Commissioner, stressed the trial judge's obligation to take an active role in framing the scope and the languageof the proposed expert opinion evidence. He observed, at pp. 499-500: A final outcome from the admissibility process is a clear definition of the scope of the expertise that a particular witness is qualified togive.

As discussed in the earlier part of this chapter, it will be beneficial to define the range of expertise with as much precision aspossible so that all the parties and the witness are alerted to areas where the witness has not been qualified to give evidence. . . .

As Iearlier recommended, the trial judge should take steps at the outset to define clearly the proposed subject area of the witness's expertise.At the conclusion of the voir dire, the trial judge will be well situated to rule with precision on what the witness can and cannot say.These steps will help to ensure that the witness's testimony, when given, can be confined to permissible areas and that it meets therequirement of threshold reliability. (Emphasis added) [Footnotes omitted, emphasis in original] [11] If expert evidence is admitted, the trial judge must both ensure that the expert stays within the proper bounds ofhis or her expertise and that the content of the evidence itself is properly the subject of expert evidence (R v Sekhon, 2014 SCC 15,[2014] 1 SCR 272). [12] The proper practice when tendering an expert witness is to qualify the expert in all areas in which it is proposedto have the witness give opinion evidence (R v Marquard, (SCC), [1993] 4 SCR 223 [Marquard]).

A cautiousdelineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, areessential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals onappeal (Abbey). [13] “Expertise” is established when the expert witness possesses special knowledge and experience relating to thespecific subject matter on which the expert is being offered.

The witness must therefore be shown “to have acquired special or peculiarknowledge through study or experience in respect of the matters on which he or she undertakes to testify.” (Mohan at 10 and 25). [14] The admissibility of such [expert] evidence does not depend upon the means by which that skill was acquired.As long as the court is satisfied that the witness is sufficiently experienced in the subject-matter at issue, the court will not be concernedwith whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given tothe evidence. [15] While expertise is a modest standard, it is important that the expert actually has the kind of special knowledgeand experience appropriate to the subject matter.

For example, in R v Thomas (2006), (ON SC), 207 CCC (3d) 86

(Ont Sup Ct) a nurse designated as a sexual assault examiner after a brief non-rigorous course and who had several years of experience conducting pelvic exams was not qualified to offer an opinion about whether observed injuries were more consistent with sexual assault than consensual activity.

She did not have the requisite special knowledge because she was unfamiliar with the relevant body of literature, had done no relevant research, she had not undertaken a systematic evaluation of the results of her own examinations, and her duties as a sexual assault examiner did not include diagnosing sexual assault from injuries.

Similarly, in McMillan v Regional District Health Board , 2000 SKQB 85 , an orthopaedic surgeon, a man of obvious expertise, was not shown to have the specific expertise needed to determine the cause of a rotator cuff injury. [ 16 ] The precise area of expertise of the witness should be defined at that time, for it is trite law that expert witnesses should not give opinion evidence on matters for which they possess no special skill, knowledge or training, nor on matters that are commonplace, for which no special skill, knowledge or training is required. As well, again, as stated in Marquard at 244.

Important as the initial qualification of an expert witness may be, qualification, or during the witness’s evidence if it becomes apparent the witness is going beyond the area in which he or she was qualified to give expert opinion. In the absence of objection, a technical failure to qualify a witness who clearly has expertise in the area will not mean that the witness’s evidence should be struck.

However, if the witness is not shown to have possessed expertise to testify in the area, his or her evidence must be disregarded and the jury so instructed. [ 17 ] In R v Pham, 2013 ONSC 4903 , 300 CCC (3d) 111 , 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 whether the 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 might give the evidence. [ 18 ] The present view of the Supreme Court on the admission of expert evidence, as expressed by Cromwell J. in White Burgess at para 20 , is noteworthy: [20] … The unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role. [Emphasis added] [ 19 ] With this general framework in mind I will now turn to the issues raised in this voir dire .

ANALYSIS [ 20 ] I am satisfied that the proposed evidence of Dr. Soper meets the criteria of relevance as the proposed expert evidence relates to a fact in issue at trial and it tends to prove the fact in issue. I am also satisfied that the proposed evidence is reasonably necessary in the sense that it is outside the [ordinary] experience and knowledge of the trier of fact. It is necessary in that it allows the trier of fact to appreciate the facts due to their technical nature. I ndeed the defence takes no issue that those factors have been met.

I am also satisfied that there is no exclusionary rule which would exclude the evidence and this is conceded by defence. [ 21 ] The issues for determination are whether Dr. Soper is a properly qualified expert able to proffer the opinions the Crown seeks to elicit, whether Dr. Soper is impartial and unbiased, and whether the probative value of the evidence is overborne by its prejudicial effect. 1. The Evidence of Dr. Soper’s Qualifications [ 22 ] The accused identifies that Dr.

Soper’s expertise as a general paediatrician is not being challenged, nor is she being challenged as a participant expert who treated the child. The defence challenges her qualification to provide expert opinion on brain injuries, the causation of such injury, the mechanism by which the injury was caused and/or the timing of the injury. The defence opposes her providing evidence on the timing and cause of the brain injury. In particular, the defence challenges Dr. Soper’s ability to

opine that the brain injury was caused by an intentionally inflicted force or an accidental force. (

i) Formal Training-General [ 23 ] Dr. Soper graduated from the University of Auckland in 1994 with a Bachelor of Human Biology. She graduated in 1997 with a Bachelor of Medicine and Surgery. Dr. Soper’s evidence is that this six years of schooling represent the equivalent of a medical degree in Canada. Dr. Soper received a Postgraduate Diploma in paediatrics in 1999 from the University of Auckland, which involved a year long academic course, coupled with practical experience, under the supervision of paediatricians. [ 24 ] Dr.

Soper went on to become a fellow of the Royal Australian College of Physicians in Paediatrics and Child Health in 2010. In 2012 Dr. Soper became a fellow of the Royal College of Physicians and Surgeons of Canada, Paediatrics. In 2020, Dr. Soper completed her fellowship in health system improvement in 2020 at the University of Alberta School of Public Health. (Dr. Juliet Soper Resume, Appendix A, Exhibit P1 on voir dire ). [ 25 ] Dr. Soper is a general paediatrician with no subspecialty designation. [ 26 ] Dr.

Soper acknowledged that there is an area of focused competency within paediatrics of paediatric neurology, and she does not have that designation. As well, she identified that in Australia there is forensic paediatrics, and she does not have that certification. Her only training in neurology was during a rotation in paediatric neurology as a trainee paediatrician.

She testified she has attended conferences and keeps up with the literature surrounding traumatic brain injuries and how they may be related to child maltreatment as a form of training. [ 27 ] In Canada, the College of Physicians and Surgeons has an area of practice competency in “Child and Youth Maltreatment Paediatrics.” It is an area of practice competency, but it is not recognized as a subspecialty in Canada. This practice competency designation was established in 2015 and the first designation to a paediatrician in Canada came in 2019 or 2020. This required the completion of a fellowship, but Dr.

Soper testified there is now an option to apply for that qualification of competency for someone who has been working in the field. Dr. Soper testified she contemplated applying for the designation prior to COVID-19 but acknowledged that her research did not meet the requirements of the Royal College in this area. Dr. Soper does not have the designation from the College of Physicians and Surgeons in the area of practice competency in Child and Youth Maltreatment Paediatrics. [ 28 ] Dr.

Soper identifies herself as a general paediatrician, with a special interest in child maltreatment paediatrics. (ii) Other Training [ 29 ] Dr. Soper has several certifications and non-certificate training in general paediatrics. Dr. Soper has completed the “Fundamentals of Pediatric Critical Care Medicine” course in 2012 and 2017, which she identifies as “Life Support Certifications” in her resume. She indicated the course is intended for doctors who work in centres where there is not a paediatric intensive care unit and is a course dealing with medical and trauma reasons for a child to need intensive care.

It covers trauma, trauma presentations and management. This is a three-day course with an examination both at the beginning and then at the end of the course. [ 30 ] Dr. Soper testified to attending the Canadian Symposium on advance practices in child and youth maltreatment paediatrics once each year for the past ten years except 2013. She attended the international conference in San Diego, California on trauma treatment.

She attended a conference New Zealand (not particularly identified) and a course on the assessment of sexual and physical abuse of children which is a three day online and a two-day in-person course. [ 31 ] Dr. Soper has not published in any peer-reviewed journal in the area of child maltreatment, injuries, brain injuries, causation of injuries or timing of injuries. Dr. Soper has published in other areas of paediatrics. Dr. Soper has no certification in child maltreatment. (iii) Presentations and Publications [ 32 ] Dr. Soper has given several invited presentations, both in Canada and in New Zealand.

She testified these presentations are when she has been invited to teach or give a one hour keynote address. The topics of these presentations range on various topics related to paediatrics. She testified at least ten were given in child maltreatment and child abuse, which included sexual abuse. She highlighted in evidence the presentation at the Saskatchewan Prevention Institute conference which was titled “Conscious Compassion” in the context of child neglect.

She testified some of these presentations were to the Department of Social Work, the Canadian Symposium on Practices in Child Maltreatment, Regina Police College, Winnipeg Police Service, and Ministry of Social Services, Saskatchewan. No evidence was given as to whether any of these such presentations involved brain injuries, causation of injuries or timing of injuries. She did testify that some have been on general topics, but some have been on head trauma and fractures. [ 33 ] Dr. Soper has also completed various Research Posters.

She testified Research Posters are a way of presenting research that is not a written

article and tends to be a simpler, smaller research project that is presented in poster format on the wall at a conference. She testified that you stand beside the poster and discuss it with conference attendees. Dr. Soper highlighted in her evidence the poster she did auditing paediatric services and what typical practice looked like in the child and family medical service at the hospital. Her resume identifies she co-authored a Research Poster entitled “Epidemiology of child maltreatment presentations to a Canadian child protection team” at RQHR Showcase 2015. [ 34 ] Dr.

Soper has not published any research in paediatric injuries or maltreatment, nor on brain injuries, causation, mechanism or timing of injuries, but has co-authored three peer reviewed publications in general paediatrics as identified in her resume. (iv) Committee Involvement and Professional Affiliations [ 35 ] Dr. Soper highlighted several committees she has been a member of including the Canadian Paediatric Society Child and Youth Maltreatment

Section which she was on from 2016 to 2020. She was also a member of the Regina Children’s Justice

Centre Child Justice Protection Committee from 2012 to 2021, which was a committee aimed at ensuring the liaison between the various agencies including the police, social services, and health when a child was being cared for. A recent appointment that Dr. Soper highlighted was to the Child Protection Society of Australia as the New Zealand representative. This committee is new and will aim to create a community practice and standards across Australia and New Zealand in this field. (

v) Experience [ 36 ] From 2012 to 2018, Dr. Soper was the Head of the Department of Pediatrics at Regina Qu’Appelle Health Region. In that role she performed developmental assessments with children with various brain dysfunctions who were having developmental or neurological problems. She testified it was extremely rare for a patient with trauma to be primarily under her care. In 2018 she became the Chief of Staff in the Department of Child and Family Medical Services from 2018-2020. Dr.

Soper testified that this was an administrative role, but she ended up working approximately two or three days a week in clinical paediatrics and the remainder of her time was dedicated to administrative work. She testified she saw any child (while in clinic) where there was a concern that someone may or may not have hit them. She saw children that present with any acute condition that brought them to hospital. [ 37 ] From June 2020 to July 2021, due to the onset of the pandemic, Dr. Soper had a primarily administrative role.

Her clinical practice was limited to approximately one full week every five to six weeks where she was responsible for every child admitted in paediatrics to Regina General Hospital. [ 38 ] From July 2021 to December 2021, Dr. Soper worked in the Regina General Hospital Emergency Department as a paediatrician. After that she moved back to New Zealand and began working as a paediatrician at Te Puaruruhau, Starship Child Health in Auckland. [ 39 ] Dr.

Soper testified that her experience with fractures came from medical school, 18 months in a children’s emergency department, and her work in Regina in the Emergency Department, where it was very common for children to present with broken bones and fractures. [ 40 ] In respect to bruising, Dr.

Soper testified that her medical training, her hematoma oncology service, her experience of seeing many children with bruises and attending child maltreatment conferences where discussed were questions like what “actually can we say about how fast a bruise results, how early a bruise is seen, what size and shape a bruise takes in different situations” provide her with training and experience relating to bruises. [ 41 ] From 2012 to 2021, Dr. Soper worked as a clinical assistant professor at the University of Saskatchewan Department of Pediatrics. In this role Dr.

Soper provided teaching to junior doctors, lectures, didactic teaching, and small group teaching in a variety of topics around paediatrics. 2. Is Dr. Soper qualified to give expert opinion evidence in the areas proffered? [ 42 ] Dr. Soper is a general paediatrician, where she specializes in the whole of the child, their wellbeing and their development.

However, as noted by our Court of Appeal in Parker v Saskatchewan Hospital Association , 2001 SKCA 60 at para 114 , 203 DLR (4th) 657: [114] When it comes to doctors as expert witnesses, it must be remembered that medicine constitutes a vast and complex field , with many specialties, even sub-specialties. Obviously, this serves to limit the extent to which a general practitioner is qualified to assist the court in drawing inferences in relation to some forms of disputed illness, as well as to their consequences and treatment”. [Emphasis added] [ 43 ] Dr.

Soper is a paediatrician who received that certification in 1999 and has worked as a paediatrician for over 20 years. This training and experience would undoubtedly allow her to give opinion evidence generally on the diagnosis and treatment of children. Dr. Soper testified to her experience of treating and seeing children with bruises. Dr. Soper testified to working in the Regina Emergency Department and spending 18 months in the children’s emergency department during her paediatric fellowship training. She indicated in her testimony that it is very common for children to present with broken bones and fractures.

The most common cause that is stated to her is trauma. She testified that she learned how fast a bruise results, how early a bruise is seen, and what size and shape a bruise takes in different situations from the conferences she has attended in child maltreatment. The combination of her education as a paediatrician, this educational knowledge, and as her clinical experiential knowledge ought to make her eligible to testify concerning the diagnosis of a bruise, the causation of bruising, and the approximate age of a bruise. [ 44 ] Dr. Soper is a general paediatrician with no subspecialty designation.

Her evidence was that she did not have any specific training in neurology or neurosurgery. Dr. Soper is not a neurological paediatrician and there is such a designation. She has limited education and training in the area of brain injuries. [ 45 ] Dr. Soper has not met the qualifications to have the designation of having an area of practice competency in “Child and Youth Maltreatment Paediatrics.” This is not a subspecialty but merely a practice competency. But Dr. Soper does not have such practice competency.

Such an area of practice competency requires meeting specific education and/or clinical practice requirements and requires her to have completed research in the area. She has done no research nor written any peer-reviewed research or papers in either area. She does not meet the area of practice competency of “Child and Youth Maltreatment Paediatrics.” [ 46 ] Dr. Soper has some clinical experience as a paediatrician in respect of children’s brains.

She testified that between 2012 and 2018 while the Head of the Department of Paediatrics and during that period she did some scheduled developmental assessments with children with various forms of brain dysfunction (neurological problems). [ 47 ] Dr. Soper testified that in her experience as a general paediatrician she saw some children presenting with head trauma. In many of those cases, the head trauma was from simple falls and activities about the house. Dr. Soper testified she saw more

severe cases on average once a week (keeping in mind that this was not in the period of 2012 to 2018 her clinical experience was limited, as she was the Head of Paediatrics for the region and was doing developmental assessments with rarely caring for a child with a brain injury). In the period of 2018 to 2020 she worked in a clinical setting one week every five to six weeks and then from July 2021 to December 2021 she was in the Emergency Department and seeing children weekly which would have been when she saw a more sever case once a week.

The severe cases she identified she saw were where a child was admitted with a head concussion. Dr. Soper has done no specific or particular analysis of the patients that she has seen in her clinical practice to analyze whether her clinical experience fits within the confines of the literature in respect of brain injuries, their causation, or mechanism of causation or the timing of the injury. [ 48 ] Dr. Soper’s experience in clinical setting is in diagnosis.

She gathers information from other experts and based on that information and the child’s symptoms, she rules out different medical and non-medical causes of symptoms. It is unclear what role she plays in diagnosing the individual injuries sustained to the brain. She is qualified to speak to why she thought E. had a brain injury based on her clinical experience of receiving and monitoring children who have received head trauma. However, I am not persuaded she has sufficient experience to be qualified to give evidence on the causation, mechanism, or timing of a traumatic brain injury. [ 49 ] More particularly Dr.

Soper does not have the qualifications to testify to the mechanism that caused the brain injury. She has attended conferences, and while there was education about brain injuries there is no specific evidence that any of those conferences involved education that would give her the expertise to testify about the causation or mechanism of a brain injury.

She testified that she compares a presenting child’s injuries to those injuries she has seen potentially in other children, where there is a known mechanism (because she has obtained a history of the mechanism), and to what she knows about typical childhood behaviour and play and fall, and then uses what she has learned in the literature and at conferences. Dr. Soper identified that she reviews the literature in this regard to come to an opinion, upon which here the Crown suggests she should be able to opine.

However, as stated in R v Jha , 2015 ONSC 4347 [ Jha ] and R v Mathisen , 2008 ONCA 747 , 239 CCC (3d) 63 [ Mathisen ], a witness should not be qualified as an expert simply because they have reviewed the medical literature in the area. This does not provide her with the expertise to opine on the mechanism of a brain injury. [ 50 ] When asked to speak about her opinion on the level or degree of force necessary to cause injuries, Dr. Soper said that she could not name a specific force.

She once again pointed to the clinical experience she has obtained to compare the forces involved to what she has seen in children presenting to the emergency room and the literature on the frequency of different types of injuries from different types of mechanisms. Again, Jha and Mathisen identify this does not qualify the witness as an expert in the area. Her own evidence identifies she does not have this expertise. [ 51 ] Dr. Soper’s general training as a paediatrician would not qualify her to testify about the timing of a brain injury.

She has clinical experience, but her clinical experiences have been very limited in respect of observing children who die from head trauma. She testified that one or two stood out to her and that she has seen it happen a few times, maybe one child a year, but that it is not a common occurrence to see a child die. Again, her experience is not significant in this regard. Dr. Soper’s experience does not provide her with the necessary expertise to opine on causation, mechanism, or timing.

She has done no research which would have linked, related, or associated her observations in her clinical setting in a systematic way to the literature. Attending limited lectures or reading literature does not qualify her as an expert in these areas. Dr. Soper has not systematically analyzed any of her clinical experience and compared it to the literature. [ 52 ] Dr.

Soper has no forensic training which might assist in having the expertise to express an opinion about the mechanism of injury. [ 53 ] Expert evidence can be admitted by a witness who has acquired special or particular knowledge through study or experience in respect of the matters on which the witness is to testify. The fact that there may be other individuals with greater expertise or recognized specialties is not what is used to determine if a witness proffered has the necessary expertise to offer opinion evidence. But the expert must actually have acquired the special or particular knowledge.

Caution must be taken also where as here there is a close and strong connection between Dr. Soper’s opinion on causation, magnitude, mechanism and timing of the brain injury and the ultimate issue of E.’s injuries that the court must determine. In such a circumstance it is appropriate to apply a stringent level of scrutiny to the evidence of Dr. Soper. [ 54 ] The Crown argues that Dr. Soper has been qualified in other cases as an expert and provided evidence on Traumatic Brain Injuries [TBI].

Her resume identifies three cases in provincial court, two of which were Preliminary Inquiries, where she has given evidence on “TBI.” But no evidence was supplied to me as to whether her expertise was challenged or whether her education, training or experience were assessed. Nor was there any evidence if she was proffered to provide the type of expert opinion that the Crown seeks here. But in any event, it is my obligation to determine here whether she has the specific expert qualifications to provide the opinion that the Crown seeks her to provide. [ 55 ] Dr.

Soper, in her evidence, identified that she often referred to the literature she was familiar with when she was diagnosing children with brain injuries. She did not identify any of that literature. She was cross-examined about research entitled “Childhood Falls with Occipital Impacts”, by Norrell Atkinson, Rick van Rijn and Suzanne Starling, December 2018 in “Pediatric Emergency Care” which related to traumatic brain injuries in children and the force observed for such an injury. She indicated that she was familiar with that research and ultimately acknowledged that she knew of the research prior to seeing E.

She said that research was significant because it identified that children can suffer traumatic brain injuries from a short fall or what might be viewed as common childhood conduct. She did not refer to that study when she opined as to causation of E.’s brain injury in her report, nor did she refer to it in her testimony in chief at the preliminary inquiry. She did acknowledge on this voir dire that it was significant research when cross- examined and that it would have impact on her opinions. She testified she must not have recalled it when she failed to mention it before being cross-examined.

However, she was reluctant to acknowledge that this actually affected her opinion here, despite the fact that this research provided research that did not support her opinion. [ 56 ] Dr. Soper does not have the training, education or experience to provide an expert opinion on the causation, mechanism or timing of a brain injury. To be more precise on the issue of causation, Dr. Soper will not be permitted to testify as to what

caused the brain injury she observed, nor will she be permitted to testify as to whether, in her opinion, these injuries were caused intentionally, unintentionally, deliberately, or accidentally. That is beyond her area of expertise and experience. [ 57 ] I must go on to engage in the gatekeeper role and consider a cost-benefit analysis of Dr. Soper’s evidence. Here, there are several reasons why Dr. Soper’s scope of testimony should be limited concerning E.’s brain injury and the nature, timing, and cause of the brain injury. [ 58 ] First, Dr.

Soper’s conclusions on the nature, timing, and cause of the brain injury were based on the very limited history she received from the family, by her own evidence. She indicated in her evidence that she uses the history obtained from family after an injury and her experience to come to conclusions about injuries in general and specifically brain injuries. Here she had almost no history about what had happened to E. and it was not from the parents. In that respect, she would have come to conclusions based on limited information, with little objective data.

Basing findings on limited history impacts the probative value of an expert’s opinion as identified in Jha at para 33 , this reduces the probative value of the evidence. [ 59 ] Further, Dr. Soper approached this case through the lens of selected medical literature that supported her view of maltreatment and causation while ignoring the important research which disputed that view and of which she herself testified was important. That also reduces the probative value of the evidence. [ 60 ] Second, the prejudicial impact of Dr.

Soper’s proposed evidence concerns the ultimate issue at trial, namely whether the death of E. was accidental or intentionally inflicted. This warrants restriction of this evidence. Its prejudicial impact significantly outweighs its probative value. This is an issue for the trier of fact. [ 61 ] The final consideration is the issue of whether Dr. Soper is an independent expert. Defence argues that Dr. Soper was biased in her opinion, perhaps unconsciously, but nevertheless biased.

They suggest that she had an unconscious tendency towards a particular outcome and searched for things that supported that outcome and ignored things that contradicted that outcome. In particular, defence argues that Dr. Soper ignored or failed to consider important relevant literature when forming her opinion and completing her report in this case. The research pointed to by defence (referred to earlier herein) and acknowledged by Dr. Soper demonstrated that short falls with impact energy much lower than previously thought can cause subdural hematomas, retinal haemorrhages, brain swelling and death.

The research study demonstrated that forces required to cause these injuries are much lower than previously thought. The defence identified that Dr. Soper was aware of the study and she acknowledged it was significant and attested she had attended a conference where it was discussed. The defence pointed out that despite this, she failed to consider it or even mention it. When asked why, by defence counsel she testified she thought she must have forgot about it when she prepared her report, but later acknowledged she did know about it at the time and that it was relevant to her assessment of E.’s injuries.

She again did not mention it at the Preliminary Inquiry until she was cross-examined. She had no real explanation for the failure to consider what she stated was important research relevant to her opinion. Defence suggests this is either carelessness or unconscious bias. [ 62 ] The defence also suggests that her bias is shown by her dogmatic approach to the evidence and suggests she displayed irrelevant propensity reasoning. The defence argues that Dr. Soper sees this as a case of child maltreatment based on the fact that one event could not explain the constellation of injuries E. presented with in the hospital.

Defence argues that Dr. Soper’s opinion is that because E. had other injuries, including bruising and healing fractures, it is more likely that his death was intentionally caused. Defence argues this demonstrates bias. The defence also points to Dr. Soper’s flawed use of statistical analysis in her evidence. [ 63 ] I am concerned about Dr. Soper’s failure to identify and include in her analysis and opinion the significant research that she said was very relevant to the opinion she was providing. Her lack of explanation for failing to mention it in her report or at the Preliminary Inquiry was troubling.

The concerns the defence identifies in this respect may relate to the fact that Dr. Soper does not have the necessary education, training or clinical experience to properly consider and utilize relevant research and literature to ultimately opine on brain injuries, the causation, mechanism or timing of such injuries. [ 64 ] However, I do not find it necessary to rule on this point of bias at this stage as I am not satisfied that Dr. Soper has the specialized knowledge to opine on the nature, timing and cause of brain injuries.

Further, if I am wrong in this regard, I am satisfied that the probative value of her evidence is outweighed by its prejudicial effects in the circumstances of her evidence and this case. Any issue of bias will go to weight in respect of those areas I have found her qualified to opine on. CONCLUSION [ 65 ] I am of the view that the areas that the Crown seeks to have Dr. Soper provide opinion evidence in relation to brain injury, brain trauma, causation, timing, mechanism of the injury and whether the injury was caused by non-accidental, accidental or intentional force go well beyond Dr.

Soper’s education, training and experience as a general paediatrician. I am not satisfied she has the expertise to provide such opinion evidence. [ 66 ] Dr. Soper is qualified as a general paediatrician able to provide her opinion in some areas. But the scope of the evidence will be limited. [ 67 ] Dr. Soper can describe her observations during the examination conducted by her in relation to E. She will be able to describe in detail the marks she observed, the bruising and fractures and will be able to refer to the other medical reports she obtained.

She will be able to provide some assessment as to whether any of those injuries were of recent origin or not, and testify as to the age of those injuries. She will be able to refer to any previous medical reports she referenced containing information about E. Dr. Soper is able to provide her opinion evidence on causation in relation to bruises and fractures and the nature and timing of such injuries and/or probable causes of such injuries including consideration of proposed hypotheticals including her opinion as to (

a) the mechanism by which the trauma could have occurred individually and/or collectively and (

b) the nature or type of force that would be consistent or inconsistent with having caused the injury and how the injury would have expected to progress over time from the point the trauma was sustained. I am satisfied she can provide this evidence even though she lacks any special designation. [ 68 ] Dr. Soper is not qualified to provide opinion evidence on timing, causation, or mechanism of head or brain

injuries, nor on the probable causes of such injuries, including answering hypothetical questions respecting her opinion in this area. She is not qualified to provide opinion evidence as to the mechanism by which such a trauma could have occurred, or the nature or type of force that would be consistent or inconsistent with having caused such an injury, or how such an injury would have progressed over time from the point the trauma was sustained. She is not qualified to give opinion evidence on whether the brain injury was accidental or non- accidental or intentional. [ 69 ] Dr.

Soper will not be permitted to testify that the totality of her observations and E.’s condition is consistent or inconsistent with child abuse and/or non-accidental causes of death. J. C.L. DAWSON