W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Sharpe, Juriansz and Rouleau JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
P.G.
Applicant/Appellant
Victor Giourgas and Theo Sarantis for the applicant/appellant
Peter Scrutton for the respondent
Heard: October 8, 2008
On appeal from the judgment of Justice Myrna L. Lack of the Superior Court of Justice dated July 21, 2006.
1The appellant was convicted on July 21, 2006 of sexual assault, invitation to sexual touching, and sexual interference, by a judge sitting with a jury. On November 6, 2006 he was sentenced to four years in custody, less seven months credit given for pre-trial custody. The offences were committed on his daughter who was four years old at that time. He has been on judicial interim release pending this appeal.
2I conclude that the expert, called by the Crown to offer the opinion that the complainant had suffered sexual assault, was allowed to give testimony that indicated to the jury his views of the veracity of the complaints. This made the trial unfair. I would set aside the convictions and order a new trial.
The Facts
3The complainant and her brother are the natural children of the appellant and his common-law wife. In March of 2003 the Children’s Aid Society removed the children from their parents’ home for reasons unrelated to the charges against the appellant. After six months in a foster home, on September 17, 2003 the complainant disclosed first to her foster father and then to her foster mother that she had been sexually abused by her “Daddy”. The foster parents took her to the police and on September 23 and 24, 2003 she provided two video statements outlining the allegations of sexual abuse by her father.
4The complainant’s father was charged with the offences noted above. Though initially represented by one counsel and then another, he was unrepresented at trial.
5The Crown, instead of calling the complainant as a witness, sought to adduce the statements she made to her foster parents and to the police as proof of the truth of their contents under the principles of R. v. Khan 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531. On its application, the Crown called Dr. Wehrspann, who was qualified as an expert in child sexual abuse and related trauma. The Crown called Dr. Wehrspann to address the complainant’s inability to testify as well as to establish that her statements met the threshold of reliability to be admitted for the truth of their contents. The Crown also called both the foster parents to recount how and what the complainant disclosed to them, and the police officer who took the complainant’s video statements. The trial judge granted the Crown’s application.
6Later, when during the course of the trial it became apparent that the Crown did not intend to call Dr. Wehrspann as a witness at the trial itself, the trial judge directed the Crown to call him. She explained that she saw all the evidence called on the voir dire as one package and had ruled on it as a package. Before Dr. Wehrspann testified the trial judge, in his presence, set certain parameters for his testimony. She instructed that he could testify about the complainant’s inability to testify and also “about the reliability of her utterances to third parties”. He could give his opinion on whether the complainant had been sexually abused but “[h]e may not say who, in his opinion the sexual abuser is.”
7Dr. Wehrspann explained in his testimony that he was unable to engage the complainant in a discussion of the allegations. His testimony and opinion was based primarily on his review of the Children’s Aid Society’s file that contained the reports of the complainant’s foster parents to the Society. He does not seem to have viewed the complainant’s video statements to the police as he made no reference to them. Dr. Wehrspann’s personal observations of the complainant were that she had become fearful and had gone white when he first asked her about her father, and that at a subsequent interview, she had become distracted and refused to be engaged when he tried to get her to talk about what she had disclosed.
8Dr. Wehrspann indicated that he looks at four different areas in assessing whether a child’s disclosure of sexual abuse has validity or not:
whether another adult in the environment promoted or encouraged the child’s disclosure;
whether the child’s disclosure is expressed from a child’s perspective;
whether the child exhibits inappropriate sexual behaviour; and
the emotional health of the child.
9After discussing the evidence relevant to each of these areas, Dr. Wehrspann stated his final conclusions within the parameters set by the trial judge. He testified that his expert recommendation was that the complainant should not testify at the trial and that it was his expert opinion that she had been sexually abused. He refrained from expressly identifying the appellant as the perpetrator of the sexual abuse.
10In explaining his views and offering his opinions, Dr. Wehrspann made clear that he accepted the foster parents’ reports as true.
11The appellant presented a defence. He testified, adamantly denying all the allegations. He called several witnesses, including the complainant’s mother and a family services worker and a children’s services worker with the Children’s Aid Society, who all testified that there were no concerns of sexual abuse prior to the allegations being made. The theories of the appellant put forward in his defence were that the police were out to get him, that the foster parents had put these ideas in the complainant’s head, and that it was the foster father who had abused the complainant.
12In her charge to the jury, the trial judge reminded the jury that Dr. Wehrspann had only given the opinion that the child had been sexually abused and had not expressed an opinion as to who had abused her. Following this instruction, she immediately reminded the jury that Dr. Wehrspann had expressed the opinion that the complainant was afraid of her father.
Issue
13While the appellant raises several grounds of appeal, I find it necessary to discuss only one - the appellant’s contention that the trial judge erred by admitting the opinion evidence of Dr. Wehrspann. The appellant submits that Dr. Wehrspann strayed outside the boundaries of permissible expert testimony by indicating he believed the out of court statements of the complainant and the foster parents. I agree.
Analysis
14The most helpful case regarding the admissibility and ambit of an expert’s opinion as to whether a child has suffered sexual abuse is Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641 (O.C.A.). This case presents the opportunity to repeat and expand upon the principles stated in that case.
15Khan v. College of Physicians and Surgeons of Ontario arose out of disciplinary proceedings against Dr. Khan before the College of Physicians and Surgeons of Ontario for the sexual assault of a patient, then 3 1/2 years old. One of the issues on the appeal was whether the two expert witnesses who had testified at Dr. Khan’s hearing had gone beyond the scope of what was permissible by giving their opinions on the ultimate issue to be decided by the tribunal. Doherty J.A. reviewed the law and stated the following general principles.
16First, expert evidence is not rendered inadmissible simply because it may bear on the very factual issue to be decided by the trier of fact. Second, an expert witness may not offer an opinion as to the veracity of any witness, except in very exceptional cases. Third, expert opinion as to what factual inferences or conclusions should be drawn from the evidence concerning the “behaviour and symptomatology” of a child is admissible even though it indirectly enhances the credibility of the child’s evidence. Fourth, the trial judge may control the format in which the expert evidence is given by excluding an expert’s conclusory statements where the expert is able to express the opinion in less conclusory terms without detracting from its accuracy.
17These principles, taken together, allow the Crown to present expert evidence that will assist the trier of fact while protecting the accused from the trier of fact placing undue weight on the expert’s opinion. There exists, however, potential tension between the second and third principles. The second principle is that the expert is not permitted to express an opinion about the veracity of any witness. Despite this, the third principle states that the expert is permitted to offer an opinion (based on the child’s “behaviour and symptomatology”) that the child has been sexually abused even though it “indirectly enhances the credibility of the child’s evidence.”
18The third principle qualifies but does not annul the second principle. While the scope permitted an expert witness by the third principle is broad, the court should be vigilant in ensuring that the expert in expressing his or her opinions does not violate the second. As Doherty J.A. noted in Khan v. College of Physicians and Surgeons of Ontario, though there is strong value and need for evidence in cases of child sexual abuse, a trier of fact “[f]aced with the often intractable problem of trying to decide who is telling the truth in cases of alleged child abuse ... may seek refuge in the apparent security and objectivity of the expert’s opinion evidence.” Major J. made much the same observation in R. v. D. (D), 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 53, that there is a danger that “faced with an expert’s impressive credentials and mastery of scientific jargon, jurors are more likely to abdicate their role as fact-finders and simply attorn to the opinion of the expert in their desire to reach a just result.”
19Turning back to this case, I do not accept that the subject matter which Dr. Wehrspann addressed strayed outside the broad range permitted by the third principle. The scope of the child’s “behaviour and symptomatology” is not narrowly limited to the psychological, social and physical traits. It includes the child’s verbal behaviour. Verbal behaviour may include the fact that the child makes reports of being involved in sexual activity or that the child makes such reports without prompting. It may also include the particular vocabulary the child uses in making those reports.
20Dr. Wehrspann noted that the complainant was observed at the daycare with her mouth on the penis of a little boy, that she masturbated frequently and was not private about it, and that she was indiscriminate in her attachments in that she would go up to anybody and make physical contact with them. In addition, Dr. Wehrspann’s opinion was also based on his view of the complainant’s verbal behaviour. It was important to his analysis that the complainant did report sexual activity, she made these reports without prompting, and that she described the sexual activity in age appropriate language. These are all matters of the complainant’s “behaviour and symptomatology”.
21Properly elicited expert opinion based on such matters is admissible even though it may indirectly enhance the credibility of the child witness or of the witnesses who testify about the child’s disclosure. The problem here is that Dr. Wehrspann’s opinions were not properly elicited and the effect of his evidence was to indicate his views of the veracity of the complainant and the foster parents.
22As noted, Dr. Wehrspann’s opinion was primarily on his review of the Children’s Aid Society’s file that contained the reports of her foster parents to the Society. The only matters he could address directly were his observation that when he tried to talk to the complainant about her father she became fearful immediately and that she was too open and indiscriminate in her attachments to adults she did not know. His analysis, however, was based primarily on the material in the Children’s Aid Society file, which included, notably, the reports from the complainant’s foster parents, the veracity of which were disputed by the defence.
23To illustrate I need only set out an excerpt of Dr. Wehrspann’s testimony regarding whether an adult in the environment had promoted or encouraged the complainant’s disclosure. That the complainant’s disclosure had been made spontaneously was important to Dr. Wehrspann’s opinion that she had been sexually abused. He testified:
A. … when I looked at the material from the C.A.S., I thought that the reports from [the foster mother and the foster father]were very significant because … I didn’t feel … that with either one of them … they were thinking beforehand that she had been sexually abused and they were looking for it. I think that they came upon it and when they came upon it, there wasn’t … any promoting or influencing or wanting the child to reveal. I think the material … from [the complainant] was quite spontaneous.
Q. Can you give us some examples?
A. Yes. On September 17th, 2003 [the complainant] talked to [the foster mother and the foster father] regarding events between her and – and her dad. The events were of a sexual nature. And there’s no mention prior in any notes from the [the foster parents] that they were looking for this and this was also confirmed … by [the CAS worker], who didn’t feel that either of the parents were thinking or wanting to promote the sexual abuse.
Q. This is the foster parents?
A. Yes. And [the foster father’s] reaction was one of shock and he said, “All I can say is that” – I mean, he cried, which is – I don’t know if he cries all the time. But, I mean, it is a significant, immediate response that he cried. And he said, “All I can say is that I think I am now going to go and throw up.” So, I mean… I think it was a visceral reaction to him hearing the material that he did. … I would say that supports the idea that … he wasn’t promoting a disclosure of sexual abuse. Spontaneous – I mean, with [the complainant], I mean, he came upon her masturbating and she brought up the idea … of her father and she brought up the idea of being peed on and she brought up the idea that the pee was different and she brought up the idea of the pee being put on her. And she also said she was told to keep it a secret. So, all those things – I mean, those things didn’t come from - from [the foster father]. Those came from the child. And I would say that argues – that would argue for … the validity of a sexual abuse allegation, that it was more spontaneous and we don’t find any adult in the environment promoting it.
24As this passage shows, Dr. Wehrspann not only made it clear that he accepted the foster parents’ reports as true, but also that he forcefully used the veracity of those reports to drive his analysis. For example, in this passage he reasoned that the fact the foster father was shocked by the disclosure was an indication that the foster father had not promoted it. No fault can be found with Dr. Wehrspann’s reasoning from his factual premise. The fault is that he treated his factual premise as established fact. The whole of his testimony in chief is in a similar vein.
25The cross examination of Dr. Wehrspann by the unrepresented appellant is revealing. After establishing that the doctor did not have any physical evidence of the complainant having been sexually abused, the appellant put to him that his opinion was based on the reports of the foster parents. Instead of acknowledging this was so, Dr. Wehrspann responded “I’m – I’m arguing that what – what Samantha disclosed to the foster parents is -- is a powerful argument that she’s been sexually abused.” With respect to the doctor, that is the nub of the problem. Much of his testimony was argument. At one point he started asking the appellant questions, in effect cross examining him, pointing out that he had used the word “puddie” in his question. Dr. Wehrspann asked the appellant “who taught her that?” The clear intent of this question was to incriminate the appellant.
26Throughout his testimony, Dr. Wehrspann treated his factual premises as established fact, contended in favour of his factual premises, and, in recounting the reports of the foster parents, freely identified the appellant as the perpetrator. In so doing, Dr. Wehrspann strayed beyond the role of an expert witness. His role was to assist the trier of fact to appreciate that certain matters of behaviour and symptomatology, which the crown alleged the complainant exhibited, would be consistent with sexual abuse. Whether the complainant did in fact exhibit the alleged behaviour and symptomatology depended on the testimony of other witnesses, principally the foster parents. It was not the expert’s role to indicate his view whether their testimony or out of court statements were credible and reliable.
27Dr. Wehrspann’s testimony clearly went beyond expressing an opinion based on the complainant’s behaviour and symptomatology. His testimony would have left no doubt in the jury’s mind that he believed the Crown’s witnesses and disbelieved the appellant in arriving at his opinion that the complainant suffered sexual abuse. His testimony, in effect, directly addressed the credibility and reliability of other witnesses. As such it violated the second principle stated in Khan v. College of Physicians and Surgeons of Ontario. I would hold the trial judge erred in admitting it and that a new trial is necessary.
28This result could have been avoided had trial judge required that Dr. Wehrspann’s testimony be elicited by hypothetical questions that incorporated all of the factual premises upon which his opinion was based. Properly framed hypothetical questions would have permitted Dr. Wehrspann to draw upon the foster parents’ reports of the circumstances, manner and content of complainant’s disclosure while leaving to the jury the task of deciding whether or not to believe them. This was especially important in this case as the defence attempted to implicate the foster father in the abuse and suggest that both foster parents helped concoct the allegations against him. The use of hypothetical questions would have properly confined the expert testimony while emphasizing to the jury its responsibility to determine the facts.
29Failure to require the use of the hypothetical question technique to elicit the opinion evidence of experts may not constitute reversible error in all circumstances. However, where, as here, the facts on which the expert’s opinion is based are in dispute it should have been used. The fact that the theory of the defence may not be apparent at the time a Crown expert testifies makes it a wise practice in all cases.
30Where the hypothetical question technique is not used, careful instructions to the jury may be able to repair the situation. In this case, the trial judge’s instructions to the jury did little to alleviate the problem. The trial judge did tell the jury that Dr. Wehrspann had only given the opinion that the child had been sexually abused and had not expressed an opinion as to who had abused her. However, she then immediately reminded the jury that Dr. Wehrspann had expressed the opinion that the complainant was afraid of her father. This would have reinforced in the jury’s mind that Dr. Wehrspann had much to contribute to the identification of the abuser.
31I add a remark about Dr. Wehrspann’s testimony at the voir dire. The Crown did not use hypothetical questions to elicit his opinion evidence at the voir dire as it should have. However, at the voir dire the trial judge accepted the foster parents’ and police officer’s testimony thus providing a factual basis for Dr. Wehrspann’s opinions. The trial judge’s reasons demonstrate she drew on the general factors that Dr. Wehrspann identified, but arrived at her own conclusions regarding the factual premises from the other evidence called. Dr. Wehrspann’s testimony, as she explained, was part of a package that supported her conclusion that the complainant’s out of court statements possessed threshold reliability. His uncontradicted testimony that the complainant would be traumatized if called to testify and that she would be put at risk of permanent damage sustained her conclusion the necessity requirement was satisfied.
32While there is no merit in the appellant’s criticism of the trial judge’s decision to admit the complainant’s out-of-court statements, I repeat that the preferred approach is to require the use of the hypothetical question technique to elicit expert opinion whenever the facts may be contested.
Conclusion
33I would allow the appeal on the ground that the trial judge erred by permitting Dr. Wehrspann to indicate a clear and impermissible view of the veracity of other witnesses. This was largely a result of her failure to require the Crown to use hypothetical questions in eliciting the expert’s opinion evidence. This error resulted in the trial being unfair. I would set aside the convictions and remit the charges to the Superior Court to be retried.
“R.G. Juriansz J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree Paul Rouleau J.A.”
RELEASED: January 15, 2008
