Case Name:

Jenkyns v. Kassam

Between
John Jenkyns, John Jenkyns, by his Litigation Guardian
Sandra Jenkyns, and Sandra Jenkyns, personally, Jean
Jenkyns, Michael Jenkyns, Elizabeth Jenkyns and Jason
Jenkyns and Matthew Jenkyns, by their Litigation
Guardian, Sandra Jenkyns, Plaintiffs, and
Dr. Amin Kassam, The Ottawa Hospital, and Dr. James
Daniels, Defendants

[2006] O.J. No. 5494
Court File No. 98-CV-6819

Ontario Superior Court of Justice
Ottawa, Ontario
C.D.A. McKinnon J.

Oral judgment: February 27, 2006.
(16 paras.)

Counsel:

T. Connolly, Esq. and J.Y. Obagi, Esq.: Counsel for the plaintiffs.
M.J. Somerville, Q.C. and R. Sheahan, Esq.: Counsel for the defendants.

RULING, re: DEMONSTRATIVE EVIDENCE

1. C.D.A. McKINNON J. (orally):- At issue is the conditional admissibility of certain illustrations that were created for use at trial and at this point in time, for use during the course of the opening address of the plaintiff. There are four sketches, the first being "Brain injury from recurrent hemorrhage - John Jenkyns" which incorporates two images from CT scans taken 10 August, 1997 which images are incorporated into a coloured and more detailed format. The second illustration is titled "Recurrent aneurysm - John Jenkyns," a detailed view of blood vessels which shows the location of an aneurysm inside the brain and a coloured illustration of an angiogram photograph taken 10 August, 1997. The third is titled "Details of aneurysm clips - John Jenkyns" which is intended to illustrate what Doctor Brien Benoit saw when he operated on John Jenkyns and what he did when he operated on John Jenkyns. The fourth is a "Schematic view of aneurysm - John Jenkyns", an inferolateral view of an aneurysm also showing the posterior cerebral artery and the internal carotid artery.



2. The rule of law regarding the admissibility of such sketches is that sketches must be material and relevant to facts in issue. One need only read the pleadings in this case to appreciate that these sketches are highly material and highly relevant to the very fact in issue, namely what was done with the aneurysm discovered inside the brain of John Jenkyns.



3. Generally speaking the admissibility of demonstrative evidence is subject to less strict rules in a judge alone trial than in a jury trial. This was recognized by the authors of the Law of Evidence in Canada, namely the late Justice John Sopinka, Mr. Justice Lederman and now Mr. Justice Bryant. In the 1992 second edition of the text it is stated at page 36:
   
   One would expect that the circumstances in which a judge in a civil case would exclude evidence because of its inflammatory nature would be rare.



4. It goes on to say:
   
   People today because of their exposure to television and motion pictures can be expected to be much less sensitive to graphic displays of injuries than average nineteenth or early twentieth century citizen.
   
   This is particularly true of graphic and sometimes shocking photographs or videotapes, which is not the issue in our case. But generally the fears of prejudice is not as great in a non jury trial as in a jury trial, and I think the authors have acknowledged this commonsense proposition.



5. In the Law of Evidence, Third Edition, by Professors Paciacco and Stuesser, the authors note at page 375 that:
   
   Counsel must establish a proper foundation in that (1) the expert's testimony is relevant and admissible and the model relates to that evidences (2) the expert whose testimony the model illustrates is familiar with it; (3) the model fairly and accurately reflects the expert's evidence to which it relates; (4) the model will aid the trier of facing understanding or evaluating the expert's evidence.
   
   In the present case we may substitute the word "illustration" for the word "model".



6. Counsel for the plaintiff have undertaken to call, if necessary, the creator of the illustrations in question, and in particular Doctor Brien Benoit, whom they say will adopt the illustrations as being fair and accurate representations of what he saw and what he did with respect to the aneurysm. In terms of conditional admissibility, assuming Doctor Benoit does say that, then the four conditions set out by Professors Paciacco and Stuesser will have been satisfied.



7. Various cases were referred to by counsel for the parties with respect to the admissibility of photographs. It is generally acknowledged that the leading case in Regina v. Creamer reported, among other places, at 1 C.R.N.S. 146 at 154, a decision of the Nova Scotia Court of Appeal. That case establishes that the admissibility of photographs or videotapes depends upon (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; and (3) their verification on oath by a person capable of doing so. Counsel for the defence in this case indicates that the illustrations are not fair and are in fact misleading, and that the evidence of the defence will show that.



8. One case that was not cited by either counsel for the plaintiff or the defence is that of Majcemic v. Natale, [1968] 1 O.R. 189 and the comments of Mr. Justice Haines at page 196 where he stated:
   
   It is my considered view that if we are going to try these personal injury cases with a jury of laymen every proper aid to communication must be used to communicate to the jury the exact nature of that part of the anatomy involved, its use and injury. No lecturer to students would think of lecturing in anatomy without adequate anatomical charts and models. Its seems to me that in genuine cases where such aids to communication are required they should be used in a modern trial. In response to my question why they had not been made available in the present case, I was informed by counsel that the opinion of judges varied so greatly on the propriety of the use of anatomical charts and models that it was considered an unjustifiable expense to acquire and attempt to use. While I appreciate that many judges react in horror to reports of grinning skeletons, pathological specimens and other paraphernalia said to be used in some courts south of the border, I am confident that our judiciary is fully capable of excluding evidence when its illustrative value is outweighed by its tendency to prejudice. Speaking for myself only, I find anatomical charts and models most helpful in arriving at a true appreciation of medical legal situation, and where it is necessary for the witness to adequately communicate with the jury I think they should be used. It is with great respect that I note in cases involving mechanical defects of a machine or automobile models and parts are invariably introduced to assist a jury in the better understanding of the evidence. A defective hydraulic wheel cylinder or knee action or spring can be demonstrated easily the defective part of a model but without them could not be described adequately in words alone. Courts habitually admit these models in cases involving inanimate machines and indeed expect them. It seems to me that in disputed cases of injury to the human anatomy which I, if I may say so, even more complex than many machines, there is even a greater need for charts and models.



9. Subsequently our Court of Appeal in the case of Shipman at al. v. Antoniadis et al., reported (1975) 8 O.R. (2d) 449 Mr. Justice Kelly stated at page 450:
   
   One may easily envisage injuries where, for the proper understanding of the disability effect thereof, a jury might properly be asked to look at an anatomical diagram. One example of such a situation would be where limitation of movement of a hand was claimed to have resulted from injuries to muscles or tendons in the arm. A diagram showing the relationship of the injured tissue to the malfunction of the hand would be helpful to the jury in its understanding of a situation which continue to exist. There the expert witness would properly be required to deal with that condition and its prognosis and could help the members of the jury by directing their attention to a drawing with reference to which they could better understand the condition. Another such example would be that of the malpractice action in which proof of the cause of activity might require demonstration of the area which the treatment affected and which the negligence had occurred.



10. I refer to those two cases as recognizing the requirement of the trier of fact for assistance, particularly in areas so complex as medical malpractice. I personally find charts and diagrams and video presentations very helpful to my understanding of the evidence. Here, we are not dealing with a jury and the dangers that might be associated with illustrations that will be the subject of vigorous cross-examination as to their accuracy are not of concern to us.



11. While I am alive to the issue of the clipping of an aneurysm I must confess that I find it difficult to conceptualize an aneurysm without an illustration before me. I personally would find the illustrations helpful in my understanding of the evidence.



12. The fact that one can conditionally admit evidence for the purpose of an opening address was recognized in the cases of Whitford v. Swan, [1995] O.J. No. 4189, in which Mr. Justice Logan looked at certain demonstrative evidence and he determined that
    
    Each aid must be addressed on its own merit. It may mislead if counsel does not undertake in advance to prove the aid. It may inflame the jury if common sense dictates the aid in question is excessively demonstrative.
    
    I have examined each of the aids to which counsel intends to make reference in the opening statement. If he is prepared undertake to prove the same during the course of the trial, I do not find them excessively demonstrative. They may assist the jury.



13. As I stated earlier in these reasons, counsel for the plaintiff has undertaken to call Doctor Benoit to prove the accuracy of the illustrations. I do not find these illustrations excessively contentious except for one and that is the fourth, namely the schematic view of the aneurysm, and I do not believe the fourth drawing should be received at this stage.



14. With respect to the first three illustrations I think they will be helpful to me, they are not excessively prejudicial and the basic attack that was made upon the admissibility of these drawings by Mr. Somerville really, I conclude, is an attack on the weight of the evidence and not on the admissibility.



15. Counsel for the defence relied upon a decision of my brother Justice Power dated the 20th of June, 2001 in the case of Penney v. Crawford, and in particular a ruling he made disallowing defence counsel to put illustrations to his expert witness which would demonstrate a manner of delivery of an infant. Specifically, what was very much in issue in that case was how the infant was delivered and the manner of delivery. The drawings incorporated the evidence of the defendant physician an to where he had placed his hands. To that extent, because there was a fundamental issue as to where the hands were placed, Justice Power declined to admit them but, more importantly I think, he was concerned, as his reasons divulge, with the fact that it would be highly prejudicial to permit admissibility of those drawings during the course of the defence evidence. The Plaintiff's case was closed, and no meaningful notice had been given to the plaintiffs as to the production of the drawings. The same concern does not arise in the present case. Nor in my view do these drawings capture the specific theory of the case as was the issue in Penney. In our case Doctor Benoit in not the physician alleged to have been negligent. He was the physician who came to the case after hemorrhaging had occurred following an aneurysm clip performed by the defendant doctor. On the understanding that he is going to say that the illustrations of what he saw and did are accurate, then I believe they should be admitted not only in order to assist me but also to permit Doctor Benoit to testify in relation to what he observed and what he did.



16. For these reasons, the first three drawings are conditionally admissible. They may be used in the opening address. The fourth drawing I find is prejudicial and potentially misleading in that it seems to separate the aneurysm completely from the posterior cerebral artery, and may not be referred to in the opening address.

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