



COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Biddersingh, 2020 ONCA 241

DATE: 20200331

DOCKET: C62260

Feldman, Tulloch and Jamal
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Everton Biddersingh

Appellant

Lance
    Beechener and Alexander Ostroff, for the appellant

Lisa Joyal,
    for the respondent

Heard: December
    2, 2019

On appeal
    from the conviction entered by Justice Alfred J. OMarra of the Superior Court
    of Justice, sitting with a jury, on January 7, 2016.

Tulloch J.A.:

I.

OVERVIEW

[1]

On September 1, 1994, the York Regional Police found a body in a burning
    suitcase by the side of Highway 7. The body was not identified, and it remained
    unidentified for a period of 18 years.

[2]

In 2012, after receiving a tip about the murder of a teenage girl, the
    police were able to identify the body through DNA testing as Melonie
    Biddersingh, 17  years old at the time of her death, and the daughter of
    the appellant, Everton Biddersingh, and step-daughter of Elaine Biddersingh.

[3]

The police arrested Everton and Elaine Biddersingh on March 5, 2012, as
    well as Evertons son, Cleon. Cleon was charged with aggravated assault,
    forcible confinement, criminal negligence causing bodily harm, and causing an
    indignity to a human body. However, his charges were later stayed.

[4]

Everton and Elaine were each charged with first-degree murder. They were
    tried separately. Elaine was acquitted of first-degree murder, but found guilty
    of second-degree murder and sentenced to life imprisonment with a period of
    parole ineligibility of 16 years:
R. v. Elaine Biddersingh
, 2016 ONSC
    5663, appeal pending, C63052 and C63064. Everton was convicted of first-degree
    murder.

[5]

Everton now appeals his conviction. For the reasons that follow, I would
    dismiss the appeal.

II.

FACTUAL BACKGROUND

Melonies life with Everton and Elaine

[6]

The appellant, Everton Biddersingh, immigrated to Canada from Jamaica in
    1979. Shortly after arriving, he married Elaine and they moved to an apartment
    in Toronto. Between 1985 and 1991, they had three children together, ONeil,
    Kenroy, and Charmaine.

[7]

In 1991, Everton and Elaine were joined in Toronto by Cleon, Melonie,
    and Dwayne Biddersingh, Evertons children from a previous relationship. Melonie
    and her siblings were born and raised in Jamaica. Melonie was 13 years old at
    the time of her arrival. Her older brother, Cleon, was 16, and her younger
    brother, Dwayne, was 12. All three lived with their father and step-mother in
    their Toronto apartment. Unfortunately, in June 1992, Dwayne passed away.

[8]

During the trials for Everton and Elaine, several witnesses, including
    Melonies older brother, Cleon, testified about Melonies life with her father
    and step-mother in Toronto. By all accounts, Melonie was neglected and badly
    abused. It is not necessary, for the resolution of the issues on this appeal,
    to review every detail of this abuse. The parties agree that Everton and Elaine
    both failed to provide the necessaries of life for Melonie. Melonie was
    starved, prohibited from going to school, confined to the apartment where they
    lived, and forced to work, in the words of her brother, like a slave. She slept
    on a piece of cardboard on the floor. For punishment, she was sometimes locked
    in a closet, locked on the balcony, confined in a cardboard barrel, or chained
    to the wall. Everton also physically abused Melonie, and the abuse worsened as
    time went on. He would kick her in the stomach, and stomp and kick her as she
    lay on her side. He beat her with a belt and dragged her by her hair across the
    ground. Cleon testified that Everton would sometimes punish him and Melonie by
    holding their heads in the toilet and flushing it. He said that, near the end
    of her life, Melonie was so weak that she walked with a limp and could not
    stand up.

[9]

In the last months of her life, Melonie and Cleon were not allowed to
    use the shared bathroom in the apartment to shower. Instead, they were made to
    clean themselves with buckets of water on the balcony. Melonie was also made to
    relieve herself using a pail on the balcony. Cleon would clean the balcony
    using buckets of disinfectant.

Melonies disappearance

[10]

Cleon
    testified about the day in 1994 that Melonie went missing. He explained that
    Everton told him that Melonie had run away. Cleon was skeptical of this claim,
    however, as Melonie was too weak to walk and had nowhere to go. She had no
    contact with anyone outside the apartment. After telling Cleon that Melonie had
    run away, Everton instructed Cleon to get rid of the cardboard she had slept on
    and the chain that he had put around her ankles. Cleon was instructed by
    Everton to cut up the cardboard barrel where he would sometimes confine her,
    and to rinse off the balcony. Cleon testified that Everton and Elaine never
    reported Melonies disappearance to the police. They told everyone that she had
    run away to friends in New York.

Melonies body is identified following Elaines conversation with her pastor

[11]

In
    2010, Everton and Elaine began attending Reverend Eduardo Cruzs Spanish Bible
    church. In late 2011, Pastor Cruz informed the police that Elaine had told him
    that a child had died in her and Evertons apartment in 1994, and that they had
    never reported it.

[12]

Pastor
    Cruz testified at Evertons trial. He recounted that Elaine told him that there
    had been a girl in the apartment who was kept in a room and was never fed.
    Medicine had been denied to her and the door was always locked. Elaine told him
    that Everton was in charge, that he was the one who had confined the girl, and that
    he would punish Elaine if she tried to help her. Elaine told him that, after the
    girl died, Everton, Cleon, and she drove the body out to a field in a suitcase
    and burned it. The pastor told Elaine that the allegations were very serious,
    and that, as he would not be able to keep it to [him]self, he needed to be
    certain they were true. Elaine assured him that it was the truth. At trial,
    Elaine testified that the last time she saw Melonie alive was sometime during
    the afternoon the day prior to her death. At the time, Melonie had been lying
    on the floor. Elaine further stated that she did not see Melonie until the next
    evening, when Everton informed her that Melonie had died. Everton then brought Elaine
    to the closet near the front door. He opened the closet to reveal Melonies
    body, lying stiff on the floor.

[13]

Pastor
    Cruz subsequently contacted the police, leading to the identification of
    Melonies body through DNA testing and Everton and Elaines arrest.

Medical examinations of Melonies body

[14]

One
    of the main issues at Evertons trial was the cause of Melonies death,
    specifically whether she had died by starvation or by drowning. The Crowns
    theory was that Everton had either: 1) actively drowned Melonie; 2) failed to
    provide Melonie the necessaries of life such that she passively drowned; or 3)
    failed to provide Melonie the necessaries of life such that she starved to
    death. Several different medical experts had examined Melonies body following its
    discovery in 1994.

Dr. Chiassons examination in 1994

[15]

In
    1994, Dr. David Chiasson was the Chief Forensic Pathologist of Ontario. He attended
    the scene where Melonies body was found on September 1, 1994 and performed an
    autopsy later that day. He made a number of relevant observations regarding the
    state of the body.

[16]

Dr.
    Chiasson observed that, although her body had been partially burned, Melonie
    showed no signs of smoke inhalation, which indicated that she was most likely
    already dead by the time she was burned. He also noted that Melonies thin
    limbs and very thin body habitus indicated malnutrition. Her body, after the
    burning, weighed 50 pounds. Dr. Chiasson found frothy fluid in Melonies lungs
    and some fluid in her nasal passages. He also observed that she had a contusion
    on her head, likely caused within 12 hours of her death, and fragments of red vegetable-like
    material in her vagina.

[17]

At
    the time, he concluded that the cause of death was undetermined.

Dr. Pollanens examination in 1995

[18]

Dr.
    Michael Pollanen, then a consultant in the Forensic Pathology Unit at the Office
    of the Chief Coroner for Ontario, examined Melonies body in 1995. His research
    involved the study of diatoms, which are microscopic, shell-covered plants that
    sometimes grow in water, and specifically how the presence of diatoms in the
    body of a deceased person could be used as an indicator as to whether or not
    the person had died by drowning.

[19]

He
    examined the fluid that Dr. Chiasson had extracted from Melonies nasal passage
    during the initial autopsy and found diatoms. He then examined Melonies left
    and right femur, finding the same four distinct types of diatoms in the femoral
    bone marrow as in the nasal fluid. He offered two opinions based on these observations.
    First, the presence of matching diatoms in the sinus and the femoral bone
    marrow indicated that drowning was either the cause of death or a major
    contributing factor. Second, the variety and diversity of diatom types was
    consistent with a freshwater source, but other sources of water could not be
    excluded.

[20]

As
    part of his testimony at trial, Dr. Pollanen outlined, through the use of a
    hypothetical, that it was possible that the diatoms found in Melonies sinus
    and bone marrow originated in stagnant puddles on the apartment balcony. The
    diatoms could have been transferred from the balcony, via a persons hair or
    clothing, to a toilet or other source of domestic water (i.e., diatom-free),
    and then into a persons body through drowning or near-drowning.

[21]

At
    the request of the Crown, Dr. Pollanen also provided a differential diagnosis
    as to the cause of Melonies death. He stated that, if it were assumed that
    diatoms were not a reliable diagnostic tool (and therefore that there was no
    reliable evidence in support of drowning as the cause of death), the next most
    likely cause of death was starvation. In reaching this conclusion, Dr. Pollanen
    relied heavily on Dr. Stanley Zlotkins 2013 report on the severity of
    Melonies malnourishment (discussed below).

[22]

As
    a result of Dr. Pollanens findings, Dr. Chiasson revised his opinion on the
    cause of Melonies death. He agreed that drowning was the likely cause of
    death. However, with regards to a differential diagnosis, Dr. Chiasson
    maintained that, in the event that the diatoms were not reliable, the cause of
    death was undetermined.

Dr. Gruspiers observations of bone fractures in 2004

[23]

Dr.
    Katherine Gruspier, then a forensic anthropological consultant with the Office
    of the Chief Coroner for Ontario, examined Melonies body in 2004. She found
    that, at the time of her death, Melonie had 21 healing fractures in different
    parts of her body. Melonie had suffered extensive blunt force trauma to her
    lower back, pelvis, right knee, and left ankle that would have resulted in
    severe pain and possible immobility. Dr. Gruspier estimated that the trauma occurred
    between three weeks and six months before Melonies death, and that it could
    have resulted from a single incident or separate, but temporally adjacent, incidents
    of blunt force trauma.

Dr. Zlotkins observations of Melonies Body Mass Index in 2013

[24]

In
    2013, after Melonie had been identified, Dr. Stanley Zlotkin, an expert on
    pediatric nutrition, prepared a report based on his examination of Melonies
    body. He discussed the significance of Melonies malnourishment with Dr.
    Chiasson, the forensic pathologist who had conducted the initial autopsy in
    1994. Specifically, he provided his opinion on how much of her body mass would
    have been destroyed by burning and, consequently, how much she could be
    estimated to have weighed at the time of her death. He estimated that, at most,
    10 percent of her body mass would have been destroyed by the fire. This left
    his estimate of her weight before death at approximately 55 pounds. Melonies
    height, at approximately five feet five inches, was within the normal range for
    a 17-year-old girl. At 55 pounds, however, her weight was that of an average eight-year-old
    child. Her Body Mass Index, below the first percentile for her height and age,
    indicated that she was severely underweight and could be considered severely
    malnourished.

[25]

In
    his testimony at trial, Dr. Zlotkin discussed the correlation between severe
    malnutrition and death. He explained that malnutrition causes muscle weakness
    and decreased functioning in the immune system. Both Dr. Zlotkin and Dr.  Chiasson
    testified that it is possible to die from starvation alone.

III.

ISSUES

[26]

The
    appellant raises three issues on appeal, all of which relate to the evidence
    adduced at trial with respect to cause of death:

1)

The trial judge erred by permitting the Crown to
    ask Dr.  Pollanen to provide an alternate cause of death in the event that
    the diatom analysis was disregarded;

2)

The trial judge erred by permitting the jury to
    consider starvation as an alternate cause of death, as there was insufficient
    evidence for a properly instructed jury to find that Melonie had died of
    starvation; and

3)

The trial judge erred by permitting the jury to consider, solely on
    the basis of Dr. Pollanens hypothetical scenario and absent a sufficient
    evidentiary basis, the potential presence of diatoms on the balcony and their transfer
    inside the apartment.

[27]

The
    appellant submits that the result of these errors was that the charge to the
    jury was unnecessarily confusing. By providing multiple unsubstantiated routes
    of liability, the trial judge allowed the jury to sidestep the important issue
    of whether the appellant or someone else was responsible for Melonies death.

IV.

ANALYSIS

1)

Did
    the trial judge err by permitting the Crown to pose a hypothetical question to
    Dr. Pollanen regarding an alternate cause of death?

[28]

At
    trial, Dr. Pollanen testified that his conclusion as to cause of death was that
    Melonie had drowned. In drawing this conclusion, he relied heavily on the
    finding of matching diatoms in Melonies sinus fluid and bone marrow in both
    femurs. He testified that there were multiple possibilities for how Melonie
    might have had diatoms in her system, and how her severely starved state could
    have played a role in her death:

1)

Melonie was actively drowned by a person or multiple people, and her
    weakened state rendered her unable to resist or made her resistance
    ineffective;

2)

Melonie drowned passively, in that her mouth and
    nose became submerged in water, and her weakened state meant that she was
    unable to extricate herself from the water; and

3)

Melonie experienced a near-drowning event, which would explain the
    presence of diatoms in her system, but she survived, only to die of an
    alternate cause.

[29]

Dr.
    Pollanen explained that he favoured the simplest explanation for the diatoms,
    which was that Melonie had inhaled water and drowned (either actively or
    passively).

[30]

In
    response to the Crowns request to address differential diagnoses for Melonies
    cause of death, Dr. Pollanen also testified that, if the diatoms were an
    unreliable indicator of drowning, there were two possible conclusions: 1) that
    Melonie simply died of starvation; and 2) that the cause of Melonies death was
    undetermined. He concluded that, of these two options, the more likely was that
    the cause of death was starvation. Dr. Pollanen reached this conclusion on the
    basis that there was evidence  the autopsy and Dr. Zlotkins report  that,
    toward the end of her life, Melonie was on the very severe end of
    malnourishment and starvation, such that it could have been the sole cause of
    her death.

[31]

During
    the course of his testimony, Dr. Pollanen made two additional points which are
    relevant to understanding and contextualizing his evidence. First, he testified
    that, as a forensic pathologist, he considered it important to be skeptical
    about the conclusion that drowning was the cause of Melonies death, because
    the circumstances in which her body was found provided no indication that
    drowning could be the cause of death. Melonie was found, starved and injured,
    inside a burning suitcase in a parking lot in an industrial area of Vaughan.
    The presence of diatoms, and the conclusion that Melonie had died of drowning,
    was therefore unusual and warranted skepticism. In the words of Dr. Pollanen,
    it was a very odd thing to say somebody had drowned in those circumstances,
    as it was nearly contradictory to the history that you have of the case.

[32]

Second,
    Dr. Pollanen acknowledged that, as some people in the medical community are
    not entirely convinced of the value of diatoms as a tool in forensic science,
    it was important to provide the pros and cons of relying on them as a
    diagnostic tool. For the pros, Dr. Pollanen discussed two main aspects of the
    science that tended to support its accuracy and reliability: 1) that diatoms
    are typically only found in about a third of people who are known to have died
    of drowning. According to Dr. Pollanen, this suggests that it is not common for
    diatoms to enter the body and, therefore, that, when they are present, they are
    indicative of freshwater inhalation; and 2) that, when multiple people are
    known to have drowned together in the same body of water (and diatoms are found
    inside them), they tend to have the same type of diatoms inside their bodies.
    According to Dr. Pollanen, this suggests that the diatoms often originate in
    the water itself and not another, independent source. As a result, where
    diatoms are found inside a body, their presence tends to support the conclusion
    that they originated in a water source.

[33]

With
    regards to the cons, Dr. Pollanen outlined the two main criticisms of diatom
    analysis: 1) that it is possible for diatoms to enter the body through
    mechanisms other than water inhalation (e.g., dust inhalation). Where this
    occurs, the diatoms are spurious, in the sense that they provide false
    support for the conclusion that the person has drowned, despite offering no
    actual medical insight into how death occurred; and 2) that it is possible for
    people to experience a near-drowning episode, in which they inhale water
    containing diatoms, but do not drown. In these cases, the presence of diatoms
    could be entirely misleading as to the cause of death, or it could be used to
    support a theory that a near-drowning experience set in motion medical
    complications that led to death.

[34]

Dr.
    Pollanen explained that he considered the possibility of spurious diatoms in
    this case unlikely, because diatoms were found in Melonies sinus and her two
    femurs. Had he found diatoms only in Melonies bones, he would have been
    sufficiently skeptical to refrain from concluding that drowning was the cause
    of death. In his view, however, the concordance between the fluid in the sinus
    and the diatoms in the femurs addressed the criticism of diatom testing in the
    context of this case.

Argument on Appeal

[35]

The
    appellant argues that Dr. Pollanens opinion that starvation was a possible alternate
    cause of death was not sufficiently probative to be admitted into evidence. Although
    Dr. Pollanen testified that, in the event that diatoms were unreliable,
    starvation was the likely cause of death, his ultimate conclusion was that drowning
    was either the cause of death or a significant contributing factor. This
    conclusion was based on his opinion that, in light of the fact that matching
    diatoms had been found in both Melonies bone marrow and sinus fluid, it was
    unlikely that diatoms were an unreliable diagnostic tool in the present case. Thus,
    while Dr.  Pollanen admitted that there is scientific controversy about
    the use of diatoms to diagnose water inhalation, he explained why the
    controversy did not apply in this case. It was, therefore, an error for the trial
    judge to allow the Crown to adduce evidence of Dr. Pollanens theory on an
    alternate cause of death, as there was not a sufficient evidentiary basis to
    support it. The admission of the evidence was prejudicial and confusing, as it elevated
    Dr. Pollanens opinion on starvation to equal footing with his actual
    conclusion on the cause of death, drowning.

[36]

I
    disagree. In the context of this case, I am not persuaded that it was an error
    for the trial judge to allow the Crown to ask Dr. Pollanen for his opinion on
    an alternate cause of death, assuming the diatoms were not a reliable indicator
    that Melonie had drowned. Given the controversy surrounding the diagnostic
    value of diatoms, the evidentiary basis to support starvation as the sole cause
    of death, and the circumstances in which Melonies body was found, the trial
    judge was justified in permitting the evidence.

The evidence was properly admitted

[37]

In
    determining whether expert evidence is admissible, the trial judge must engage
    in the two-stage test adopted by the Supreme Court of Canada in
White
    Burgess Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2
    S.C.R. 182. At the first stage, the trial judge must determine whether the
    threshold requirements of admissibility are met: a) the evidence must be
    logically relevant; b) it must be necessary to assist the trier of fact; c) it
    must not be subject to any exclusionary rule; d) the expert must be properly
    qualified, including being willing and able to fulfil their duty to the court;
    and e) for any opinions based on novel science or science used for a novel
    purpose, the underlying science must be reliable:
R. v. Abbey
, 2017 ONCA
    640, 140 O.R. (3d) 40, at paras. 47-48;
White Burgess
, at para. 23. If
    these requirements are met, the trial judge must advance to the second stage,
    in which they are required to fulfil a gatekeeping role:
Abbey
, at
    paras. 48, 53;
White Burgess
, at paras. 20, 24. As the gatekeeper, the
    trial judge must determine whether the benefits of the evidence outweigh its
    potential risks, considering such factors as legal relevance, necessity,
    reliability, and absence of bias:
Abbey
, at para. 48;
R. v. J.-L.J.
,
    2000 SCC 51, [2000] 2 S.C.R. 600, at para.  28.

[38]

In
    this case, the threshold requirements are not at issue. The concern raised by
    the appellant is that the trial judge failed to adequately scrutinize the
    negative impacts of Dr. Pollanens differential diagnosis of starvation. He
    alleges that the evidence was not sufficiently probative, leading its admission
    to cause prejudice and confusion.

[39]

In
    my view, Dr. Pollanens opinion evidence regarding starvation as a potential
    alternate cause of death was sufficiently probative to be admitted into evidence.
    I reach this conclusion for three reasons. First, Dr. Pollanen acknowledged the
    potential limitations of diatoms as an effective tool in forensic science. As I
    understand Dr. Pollanens testimony, diatom analysis is not always reliable and
    can even be misleading in certain cases. While Dr. Pollanen noted that the
    presence of matching diatoms in Melonies sinus fluid and femoral bone marrow
    reduced the likelihood that the diatoms found were spurious, their presence did
    not definitively establish drowning as the cause of death.

[40]

Second,
    there was an evidentiary basis upon which a jury could conclude that Melonie
    had died by starvation. While Dr. Pollanen was clearly of the opinion that
    drowning was the cause of death or a major contributing factor, he did not
    exclude the possibility of starvation being the cause of death:
R. v.
    Biddersingh
, 2015 ONSC 6063, at para. 26. Dr. Pollanens conclusion that
    starvation was a possible cause of death was based on his expertise as a forensic
    pathologist and Dr. Zlotkins report, which indicated that Melonies starvation
    was more severe than [he] had originally appreciated. Although Dr. Pollanen
    did not prefer it to drowning as the likely cause of death, starvation was not merely
    speculative. The mere fact that Dr. Pollanen was prepared to opine that
    starvation was a viable explanation as to the cause of death is indicative of
    this fact.

[41]

Third,
    the circumstances of the discovery of Melonies body were such that a jury
    could reasonably doubt the conclusion reached by Dr. Pollanen that Melonie had
    died as a result of drowning. As noted above, Melonies body was found burning
    in a suitcase. Her body showed visible signs of starvation and malnutrition. There
    was no body of water anywhere in the vicinity. As Dr. Pollanen noted, these are
    not the circumstances that would naturally take you to drowning. Rather,
    these are circumstances that invite reasonable skepticism. While Dr. Pollanen preferred
    the diatom analysis in reaching his conclusion, it was open to the jury to find
    that, in light of the potential limitations of diatom analysis and the unusual
    circumstances of the discovery of Melonies body, it was more likely that she
    had died of starvation than drowning.

[42]

In
    effect, Dr. Pollanens evidence, while supporting his conclusion that drowning
    was the cause of death or a significant contributing factor, also provided a sufficient
    evidentiary basis to support an alternate conclusion. Though starvation was, in
    the opinion of Dr. Pollanen, clearly a less likely cause of death than
    drowning, it was not merely speculative. Rather, it was a reasonable
    possibility, both if the jury rejected the diatom analysis as reliable, or if
    they accepted it, but accepted that Melonie had survived a near-drowning
    episode and had died later of an alternate cause.

[43]

The
    evidence on starvation also gave important context to Dr. Pollanens theory on
    the cause of death, as it helped to establish its boundaries and reasonable
    limits. In this sense, the approach taken to the evidence was consistent with
    the spirit of the report of the
Inquiry into Pediatric
    Forensic Pathology in Ontario
(Toronto: Ontario
    Ministry of the Attorney General, 2008) (
the
Goudge Report
).

[44]

Tasked
    with reviewing the practice of pediatric forensic pathology in Ontario and offering
    recommendations to restore and enhance the publics confidence in its
    practices, the

Goudge Inquiry made recommendations for situations
    involving potential controversy or where alternate explanations may exist. With
    regards to cases of potential controversy, the
Goudge Report
instructs forensic
    pathologists to explain to the court the nature of the controversy and place
    their own opinion within that controversy, in order that the judge or jury may
    understand how and why they arrived at their conclusions. They have an obligation
    to ensure that the finder of fact understands the limitations of the science:
    Recommendation 91. Relatedly, where alternate explanations for pathology findings
    may be available on the evidence, the
Goudge Report
advises, in
    Recommendation 90, that:

Forensic pathologists
should outline in their post-mortem or
    consultation reports the alternative or potential diagnoses
that may arise
    in a case. They should also evaluate alternative explanations that are raised
    by the pathology or by the reported history associated with the deceaseds
    death.
They should describe precisely what alternative explanations have
    been considered and why they can or cannot be ruled out
.
The same
    principles should inform all forensic pathologists communications, including their
    testimony. [Emphasis added.]

[45]

The
    admission of Dr. Pollanens evidence complied with this approach. The jury was
    entitled to know about the controversy regarding diatom analysis in order to
    understand the basis of Dr. Pollanens opinion and its limits. Indeed, the
    appellant does not dispute this. The evidence about the controversy and
    alternative explanations provided the jury with the tools they needed to assess
    whether they accepted Dr. Pollanens evidence about the reliability of diatoms
    in this case, and what the consequences would be of accepting or rejecting that
    evidence.

[46]

If
    the appellants position were to be accepted and experts were to be denied the
    opportunity to opine on potential alternate causes of death, the jury could be
    placed in a position where they are told by an expert about the existing
    relevant controversies surrounding the experts particular opinion on the cause
    of death, and the controversies import for understanding and evaluating the
    experts opinion, but be left unequipped to draw alternate conclusions if they
    chose to reject some or all of the experts conclusions. In other words, while
    the jury would have evidence permitting them to reasonably reject the
    conclusions of the expert (i.e., the relevant controversy), they would be
    without any guidance as to viable alternative causes of death if they actually
    chose to do so. Such a situation would effectively preclude the jury from
    hearing alternate explanations simply because an expert considers them less
    likely. As will be explained below, where there is an air of reality to a
    potential cause of death, the jury is entitled to consider it, regardless of
    whether any expert concludes that it was the most likely cause of death.

[47]

In
    cases where there is controversy surrounding the science forming the basis of
    the expert opinion, the admissibility of alternate explanations for a
    phenomenon cannot depend on the experts view on the reliability of their own
    opinion. This would be inconsistent with the
Goudge Report
, and the
    jurys role as the finder of fact.

The evidence did not cause confusion or prejudice

[48]

Contrary
    to the appellants submission, the jury would not have had an inflated sense of
    the probative value of Dr. Pollanens conclusion that starvation was a possible
    alternate cause of death. The evidence before them was quite clear. Dr.
    Pollanen explained his view that the cause of death was drowning. He explained
    that his opinion was based on the finding of diatoms. He explained why, in his
    view, diatom analysis is, on the whole, reliable as a tool in forensic science.
    He provided his evidence in a balance[d] manner, explaining that there was some
    controversy surrounding the value of diatoms. He outlined both the benefits and
    limitations of the science. It was, at all times, clear that both Dr. Pollanen
    and Dr.  Chiasson were of the opinion that drowning was the cause of
    death. It was only in the event that diatoms were considered unreliable that
    Dr. Pollanen would conclude that starvation had been the likely cause of death.

[49]

The
    jury would have understood that the question posed to Dr. Pollanen was a
    hypothetical, and that they would have to reject both his and Dr. Chiassons
    opinions about the diatoms in order to find that starvation was the cause of
    death. The jury also would have understood that if they rejected the diatoms,
    Dr. Pollanen and Dr. Chiasson disagreed about the alternate cause of death. Dr.
    Pollanens view was that the cause of death was starvation; Dr. Chiasson would
    have reverted to his initial opinion that the cause of death was undetermined.

[50]

The
    trial judge explained this evidence in a straightforward manner in his final
    instructions to the jury. The trial judges charge was thorough and included multiple
    warnings against speculating or making up theories without evidence to support
    them. In closing submissions, defence counsel gave the same warning, as did the
    Crown.

[51]

The
    jury would have understood precisely the scope of Dr. Pollanens opinion, the
    science he based it on, why he considered that science reliable, and that the
    starvation theory was premised upon rejecting the science that Dr. 
    Pollanen considered reliable.

[52]

I
    also reject the appellants submission that the hypothetical question
    occasioned prejudice due to the increased complexity and time of the
    proceedings. While it is true that the evidence about starvation as a potential
    cause of death opened additional routes of liability, as I will explain, these
    routes were reasonably available on the evidence. Further, the extent of
    Melonies starvation was an important issue at trial. Given the evidence that
    the appellant was responsible for starving and beating Melonie, and the role
    Melonies weakened condition could have played in her death by drowning, even where
    starvation was not the cause of death, the evidence about Melonies starved
    state was a significant focus at trial.

[53]

In
    sum, given the scientific controversy about diatoms, the evidentiary basis to
    support starvation as a possible alternate cause of death, the circumstances of
    the discovery of Melonies body, and the need for the jury to understand the
    limits of Dr. Pollanens opinion, it was appropriate for the Crown to ask Dr.
    Pollanen about differential diagnoses. The approach taken by the trial judge
    allowed the jury to have a full understanding of the expert evidence, the
    controversy surrounding it, and how it related to the other evidence in this
    case. The jury was well equipped to make its own assessment of the evidence and,
    as I will explain, it was ultimately for the jury to decide whether to accept
    Dr. Pollanens evidence considering the scientific controversy. Dr. Pollanen
    offered compelling reasons for them to do so, but the choice was theirs and
    theirs alone to make.

2)

Did
    the trial judge err by permitting the jury to consider starvation as an
    alternate cause of death?

[54]

In
    his charge to the jury, the trial judge explained that there was evidence on
    which they could find that starvation was either the cause, or a significant
    contributing cause, of Melonies death.

[55]

The
    appellant urges us to find that this instruction was erroneous, as there was no
    evidence on which a reasonable jury, acting judicially, could have made the
    factual findings necessary to conclude that Melonie had died by starvation. In
    oral argument, the appellant made essentially two submissions on this ground of
    appeal: 1) there was no evidence of a causal link between Melonies starved
    state and her death; and 2) there was no evidentiary basis on which the jury
    could discount Dr. Pollanens evidence that the diatoms meant that drowning was
    the cause of her death.

[56]

I
    disagree. As the trial judge found, the theory that Melonies death was caused
    by starvation was reasonably available on the evidence. There was an air of
    reality to the theory that Melonie had simply died of starvation, or that she
    had experienced a near-drowning episode before dying of starvation. Contrary to
    the appellants submission, the medical and non-medical evidence could
    establish a causal link between Melonies death and her extreme state of
    starvation. I also reject the appellants argument regarding the absence of
    evidence on which the jury could have discounted Dr. Pollanens opinion about the
    significance of the diatoms.

There was evidence linking Melonies death and starvation

[57]

In
    order for a particular theory of factual causation to be open to the trier of
    fact to consider, it must have an air of reality. In other words, there must be
    some evidence upon which a properly instructed jury could find that the
    deceaseds death was caused, in a medical, mechanical, or physical sense, in
    that particular manner, beyond a reasonable doubt:
R. v. Huard
, 2013
    ONCA 650, 302 C.C.C. (3d) 469, at para. 60, leave to appeal refused, [2014]
    S.C.C.A. No. 13;
R. v. Nette
, 2001 SCC 78, [2001] 3 S.C.R. 488, at para.
    44. In determining whether an evidentiary basis exists strong enough to
    establish an air of reality, any and all evidence that bears upon the question
    of factual causation is to be considered, including both expert and non-expert
    evidence:
R. v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at para.
    193, leave to appeal refused, [2016] S.C.C.A. No. 513. In reviewing the
    evidence, the trial judge must be careful not to evaluate the quality, weight
    or reliability of the evidence, but rather must simply decide whether the
    evidentiary burden has been met:
R. v. Fontaine
, 2004 SCC 27, [2004] 1
    S.C.R. 702, at paras. 11-12.

[58]

In
    this case, there was both lay and medical evidence that could establish a
    causal link between starvation and death. The most important lay evidence on
    this point came from Cleon Biddersingh. Cleon testified that Melonies
    condition deteriorated in the weeks before her death. He testified that,
    leading up to her death, Melonie was very skinny and severely ill. She was very
    weak and crawled most of the time. She was incontinent. When Cleon stole food
    for her, she was unable to keep it down. She was vomiting and in pain. Put
    simply, Cleon testified that Melonies condition was extremely poor, and it
    worsened before her death.

[59]

Similarly,
    Elaine Biddersingh testified that she thought Melonie had died of malnutrition.
    The last time she saw her alive, she was lying on the floor. Her weight had
    been dropping, and she was not eating much. Elaines evidence about the night
    of Melonies death, if believed, suggested that Melonie died alone, in the
    closet.

[60]

There
    was also expert medical evidence to support a causal link. Dr.  Pollanen
    testified that, on the basis of all the medical evidence, it was clear that
    Melonie was malnourished, and that her malnutrition was the result of
    starvation. He explained that, on the basis of Dr. Zlotkins report, Melonie was
    on the very severe end of starvation and that, as there was no indication
    that Melonie had died of an infection or other medical complication, it was
    possible that her chronic starvation had simply led to an inability by her body
    to sustain metabolism. He stated that there was adequate evidence for [him] to
    support starvation as the cause of death. His evidence also suggested that a
    near-drowning episode could have occurred prior to her death by starvation.

[61]

Dr.
    Zlotkin and Dr. Chiassons evidence also supported a connection. For instance,
    Dr. Zlotkin testified that Melonies malnourishment was severe and the degree
    of pain she was in would have been absolutely evident to anyone. He explained
    that starvation results in the eventual loss of muscle tissue, which would
    explain Melonies weakness. Similarly, Dr. Chiassons evidence noted Melonies
    thin body habitus, which was suggestive of chronic malnourishment. He
    estimated that the process had likely been going on for a long period of time.
    Months, could be years. Both he and Dr. Chiasson testified that it is possible
    to die from starvation alone.

[62]

When
    considered as a whole, this lay and medical evidence supported the commonsense
    inference that Melonies starvation had caused her deteriorating condition and,
    ultimately, her death. Dr. Pollanens evidence, alone provided a clear causal
    link between Melonies starved state and her death. He testified that had he
    not concluded she died of drowning, he would have found starvation was the
    cause of her death. He said: I have to go with what I see, and I see a starved
    girl. And if you take diatoms off the table, I simply think that she starved
    and thats the cause of death.

[63]

For
    these reasons, in my view, there was ample evidence to give an air of reality
    to the theories of liability based on starvation as a cause of death. The jury,
    properly instructed, could reasonably have found that Melonie died simply of
    starvation (assuming they rejected the diatom analysis), or that she died of
    starvation after a near-drowning episode.

There was an evidentiary basis for the jury to discount the diatom analysis

[64]

In
    order for the jury to have found that Melonie died simply of starvation, it
    would have been necessary for them to reject the diatom analysis put forward by
    Dr. Pollanen and accepted by Dr. Chiasson. The appellant submits, however, that
    such a choice was not, in fact, open to them, as there was no evidentiary basis
    on which to discount Dr. Pollanens opinion that the presence of diatoms meant
    that Melonie drowned. He argues that any theory reliant on the disposal of the
    diatoms had no air of reality and should not have been left with the jury.

[65]

The
    appellants assertion that there had to be evidence upon which the jury could
    discount the diatom analysis amounts to suggesting that the jury was required
    to accept Dr. Pollanens evidence absent evidence to the contrary. As will be
    explained below, this is not the case. In any event, Dr. Pollanens evidence about
    the controversy surrounding diatom analysis, as well as his acknowledgment of
    starvation as a viable alternative cause of death, provided an evidentiary
    basis for the jury to discount Dr. Pollanens conclusion on causation.

[66]

There
    can be no doubt that the issue of causation is for the jury to decide, and not
    for the experts to dictate:
Smithers v. R.
, [1978] 1 S.C.R. 506, at p.
    518. The jury is required to consider
all
relevant evidence in deciding
    the issue of causation:
R. v. Pocock
, 2015 ONCA 212, 19 C.R. (7th) 60,
    at para. 19. The jury is entitled to accept or reject any part of the evidence,
    whether lay or expert, and to determine how much weight to give any expert
    evidence:
Smithers
, at p. 518.

[67]

Of
    course, for a theory of liability to be left with the jury, the record must
    reveal some evidence on the basis of which a reasonable jury, acting
    judicially, could make the factual findings necessary to ground liability on
    the theory:
Huard
, at para. 60. But the fact that expert evidence
    contradicts one theory of liability does not necessarily mean that it cannot be
    left with the jury.

[68]

In
    my view, this is especially true where, as here, there is controversy
    surrounding the science that forms the basis for the expert opinion, and where
    other evidence led at trial supports alternate explanations.

[69]

The
    appellant relies on this courts decisions in
R. v. Hong
, 2019 ONCA 170,
Pocock
,

and
R. v. Talbot
, 2007 ONCA 81, 217 C.C.C. (3d)
    415, to support his argument that simple starvation should not have been left with
    the jury because the expert evidence was that Melonie died of drowning. In my
    view, these cases do not assist the appellant. Rather, they merely support the
    general rule that the jury, in deciding the issue of causation, is not required
    to defer to the opinions of experts. As this court noted in
Hong
, at
    para. 28, there is no rule that a jury can only find causation where there is
    medical evidence to support such a finding. The jury can determine factual
    causation on the basis of any evidence that reasonably supports the conclusion.

[70]

In
    this case, there was both lay and medical evidence which could have supported
    an inference that Melonies death was caused by her extreme state of
    starvation, whether following a near-drowning event or independent of any
    drowning.

[71]

Dr.
    Pollanens evidence about the controversy surrounding diatoms provided the
    means for the jury to assess his opinion that Melonies death was caused by
    drowning. The jury was entitled to assess Dr. Pollanens evidence about the
    controversy and his opinion as to why the diatoms were nonetheless reliable in
    this case. As outlined above, Dr. Pollanens view that the diatoms were a
    reliable indicator that drowning was the cause of Melonies death did not bind
    the jury, nor did it prevent them from considering the evidence about the
    diatoms and the controversy along with all the other evidence relevant to
    causation.

[72]

As
    part of his argument, the appellant points to Dr. Pollanens statement that:

Sometimes cause of death is purely a matter of expert opinion.
    There is no way a layperson could determine the cause of death. This is a case
    of that. There is no way a layperson could determine how this woman died.

[73]

This
    statement does not assist the appellant. As Dr. Pollanen clarified in
    re-examination, this comment was a description about the nature of the analysis
    of Melonies remains. A lay person could not examine her sinuses or femurs for
    diatoms to reach a conclusion as to the viability of drowning as a potential
    cause of death. Similarly, while a lay person certainly could have looked at
    Melonie and been concerned at how underweight she was, expert evidence was
    required to assess the extent of her starvation, and the nature of the
    possibility of death by starvation. The jury had the assistance of experts on
    both points and could make the ultimate decision about Melonies cause of
    death. Defence counsel argued in closing submissions that it would be dangerous
    for the jury to reject the evidence of Dr. Pollanen. The trial judge also reminded
    the jury that Dr. Pollanen considered the question of cause of death to be a
    matter for the experts in charging them on the cause of death. The jury would
    have understood the importance of the expert evidence on causation.

[74]

Declining
    to leave the starvation routes of liability with the jury would have undermined
    the jurys fact-finding role by effectively requiring them to accept Dr.  Pollanens
    opinion despite the controversy surrounding diatoms and the other evidence
    pointing to starvation as a cause of Melonies death. The trial judge did not
    err.

3)

Did
    the trial judge err by permitting the jury to consider the potential presence
    of diatoms on the balcony and their transfer inside the apartment?

[75]

At
    trial, Dr. Pollanen gave evidence regarding how diatoms might grow on the
    balcony or in containers kept on the balcony. He testified to the following:

1)

Diatoms are not found in rainwater, or in municipal tap water, which
    is filtered;

2)

Diatoms could be present in standing water,
    including rainwater or tap water, on the balcony. However, if the water source
    did not contain diatoms, there would have to be some other source of diatoms
    for them to grow (e.g., algae), because they do not materialize out of thin
    air;

3)

Assuming there was a source of diatoms
    available, diatoms could grow in standing water if they had sunlight and a
    source of nutrition; and

4)

He could not say how long it would take diatoms to grow.

[76]

Dr.
    Pollanen accepted that if diatoms had grown in standing water, they could
    attach themselves to a persons hair or clothing, and thereby transfer into
    other water sources, such as the toilet inside the apartment. He considered
    this a reasonable line of inference, although he noted that it required
    multiple steps to occur.

[77]

Dr.
    Pollanen also testified that diatoms have been found in water that would not
    ordinarily contain diatoms, such as municipal water. He described a case of an
    individual who had drowned in a bathtub but had diatoms in their body. The
    diatoms had gotten into the bathtub because it was contaminated with kitty
    litter, which contained diatoms.

[78]

Based
    on this testimony, the trial judge found that the transfer of diatoms have an
    evidentiary basis to be considered by the jury.

[79]

The
    appellant submits that this ruling constituted an error, as there was no
    evidentiary basis for the jury to find that a source of diatoms (e.g., pond
    scum) had been transferred to the balcony. He argues that, as diatoms do not spontaneously
    materialize, the evidence could, at most, support a finding that diatoms began
    growing in stagnant rainwater exposed to sunlight on the balcony.

[80]

In
    my view, there was sufficient evidence of a source of diatoms on the balcony,
    based on Dr. Pollanens testimony. In re-examination, the Crown addressed
    whether diatoms could grow in rainwater on a balcony. In the course of this
    exchange, Dr. Pollanen testified that an out-of-door surface exposed to the
    elements, such as a balcony, can have sediment or material on it that contains
    diatoms. He testified as follows:

Q. Okay. And I just want to talk about a puddle of rain water
    on the balcony 

A. Yes.

Q. Just if we have a puddle, the puddle forms from just the
    rain water?

A. Right.

Q. And can diatoms grow in that circumstance?

A. On the surface, yes. But you need to  but theyre not
    coming from the rain water, is my point, theyre growing on the surface of the
    balcony in the puddle.

Q.  Okay. But the puddle on the balcony, if it is just made
    from rain water, can they grow in the rain water?

A. They can grow in the rain water, thats correct, yes.

Q. On their own, just with rain water? Thats our whole point
    of this hypothetical is that youve made the distinction between tap water 

A. Right.

Q. And weve ah and 

A. Tap water  tap water doesnt contain them.

Q. Thats correct?

A.
An out-of-door surface exposed to the elements can
    contain them.


Q. Okay?

A. And the rain water comes down, they can grow on the surface.
    Its not  its not like um, you know, the water has come from a filtration
    plant, right 

Q. Okay. Thats  thats 

A.
Its  this is  this is out in the elements, you know 
    you know, there is  there are organisms around. There is  you know, if you
    look at the sidewalks or other surfaces, they have this material and sediment,
    and thats what Im saying

[1]

[Emphasis added.]

[81]

Reiterating
    that these are microscopic particles that cannot be seen with the naked eye, Dr.
    Pollanen described the kind of conditions allowing for diatoms to grow on a
    surface as resembling a green or brown scum residue. He accepted that if
    this kind of residue were present on the balcony  which was possible, because
    the balcony was exposed to the elements, and had been for many years  then
    there would be a source of diatoms on the balcony. The jury had before them
    evidence that the balcony was exposed to the elements, and that it was used to
    store various items, such as garbage, bicycles, old tires, old furniture, a
    grocery cart, and pails.

[82]

The
    trial judges reasons for allowing this evidence to go to the jury reflect that
    he correctly understood Dr. Pollanens evidence that there had to be an
    independent source of diatoms for them to grow on the balcony. He referred to
    Dr.  Pollanens evidence that a concrete surface must have diatoms present
    on it for diatoms to grow in rainwater. The trial judges comments in the
    course of the pre-charge conference likewise reflect that he correctly
    understood Dr. Pollanens evidence about the need for an independent source of
    diatoms for them to grow in these circumstances.

[83]

Defence
    counsel ably argued in closing submissions that the theory of balcony diatoms
    was not very compelling, and the trial judge repeated Dr.  Pollanens view
    that this theory required a multi-step line of inference in his charge to the
    jury. The jury would have understood the limitations of this evidence and would
    have been well-positioned to assess whether the evidence was strong enough to
    support making the inference sought by the Crown. The trial judge did not err.

V.

DISPOSITION

[84]

In
    all the circumstances, I would dismiss the appeal.

Released: K.F. March 31, 2020

M.
    Tulloch J.A.

I
    agree. K. Feldman J.A.

I
    agree. M. Jamal J.A.





[1]
I note that it would have been impossible
    for the Crown to lead conclusive evidence about the presence of diatoms on the
    balcony in 1994. Dr. Pollanen confirmed that testing the tap water or Lake
    Ontario for diatoms in 2012, once Melonies identity had been discovered and
    the appellant had been arrested, would not have been a useful exercise. The
    presence or absence of diatoms in the tap water in 2012 would not have provided
    any information about the presence or absence of diatoms in the same location
    in 1994, and it would not have been useful to compare diatoms in Lake Ontario
    in 2012 to those found in Melonie in 1994. There was no further testing that
    could have been done in this case.



