Imeson v. Maryvale
[Indexed as: Imeson v. Maryvale]
Ontario Reports
Court of Appeal for Ontario
G.J. Epstein, van Rensburg and D.M. Brown JJ.A.
November 7, 2018
143 O.R. (3d) 241 | 2018 ONCA 888
Case Summary
Civil procedure — Evidence — Expert evidence — Plaintiff suing for damages for sexual assault — Mental health clinician who treated plaintiff giving evidence at trial as participant expert — Trial judge limiting witness' testimony but admitting all of his non-contemporaneous summaries of his session notes — Trial judge erring in effectively allowing witness to provide expert opinion evidence that went to issues of whether alleged sexual assaults occurred and whether plaintiff suffered harm that was caused by such assaults — Opinions on liability and causation going beyond witness' role as participant expert — Witness' opinions going to liability and causation also failing to satisfy Mohan test for admissibility of expert evidence.
The plaintiff brought an action for damages for sexual assaults allegedly committed in the mid-1990s. As a result of three convictions in 2008 for second degree murder, he was serving life sentences. He was treated in jail by S, a mental health clinician. The trial judge permitted S to give evidence at trial as a participant expert. She limited S's testimony, ruling that he would be allowed to testify about his "observations of, impressions formed regarding and treatment provided to the plaintiff as set out in the reports prepared by him". Those "reports" were summaries prepared by S based on handwritten notes which contained details of his treatment sessions with the plaintiff, as well as various comments and opinions. They were prepared after the action was commenced. The trial judge admitted the reports into evidence in their entirety and allowed S to testify about anything contained in them. The action was allowed as against the defendant M. M appealed.
Held, the appeal should be allowed.
The trial judge ought not to have allowed S to provide expert opinion evidence that went to the issues of whether the alleged sexual assaults occurred (liability) and whether the plaintiff suffered harm that was caused by such assaults (causation). The expert opinions that were elicited for such purposes went beyond S's role as a participant expert. A participant expert's exemption from the requirements that apply to litigation experts under rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is lost to the extent the expert's opinion is not based on the expert's observation of or participation in the relevant events and not formed as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in these events. The trial judge recognized the limited role of a participant expert. However, after ruling that S would be able to testify about "his observations of, impressions formed regarding and treatment provided to the plaintiff as set out in the reports prepared by him", she permitted him to testify about anything that was contained in the reports, without exception. She failed to consider whether any of the contents of the reports exceeded the scope of proper opinions to be offered by a participant expert. The appeal should be allowed on that basis. S's opinions going to liability and causation also failed to satisfy the Mohan test for the admissibility of expert evidence. Those opinions were not necessary to the central liability question -- whether the sexual assaults occurred. That issue depended on an assessment of credibility. There was no need for expert evidence to help the jury decide whether the plaintiff was credible. It could not be said that S's evidence linking the plaintiff's subsequent criminal conduct to the alleged sexual abuse was essential to assist the jury since S was not qualified to give that evidence. Even if the threshold requirements for the admissibility of expert evidence were made out, S's opinions going to liability and causation ought to have been excluded because the prejudicial effect of that evidence outweighed its probative value. A new trial involving only the parties to this appeal was directed.
APPEAL from the judgment of E.M. Stewart J., sitting with a jury, [2016] O.J. No. 5193, 2016 ONSC 6020 (S.C.J.) for the plaintiff.
Stephen G. Ross and Meryl Rodrigues, for appellant.
Loretta P. Merritt and Sumeet Dhanju-Dhillon, for respondent.
The judgment of the court was delivered by
A. Overview
1This appeal, which concerns the treatment of participant expert evidence by a trial judge in a civil jury trial, illustrates the importance of scrutinizing such evidence to ensure that the participant expert does not exceed his or her proper role.
2Maryvale Adolescent and Family Services ("Maryvale" or the "appellant") was found vicariously liable for sexual assaults alleged to have been committed against the respondent, Jesse Imeson, by its former employee, Tony "Doe". Although the respondent testified that he was also sexually abused by Father Horwath, a deceased Roman Catholic priest, the jury did not accept that claim, and the action as against the Roman Catholic Episcopal Corporation for the Archdiocese of London (the "archdiocese") and Father Horwath was dismissed.
3The appellant's central argument on appeal is that the trial judge erred in admitting the opinion evidence of Dr. Kerry Smith, a mental health clinician who treated the respondent and who gave evidence at trial as a participant expert. As a participant expert, he was exempt from the requirements that apply to litigation experts under rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
4The appellant says the trial judge's error was compounded by her instruction to the jury to consider such evidence in determining whether the sexual assaults occurred.
5The appellant also takes issue with the trial judge's decision to admit into evidence both Dr. Smith's oral testimony and the summaries he had prepared based on handwritten notes, which contained details of his treatment sessions with Mr. Imeson, as well as various comments and opinions.
6For the reasons that follow, I would allow the appeal and would direct a new trial of the action concerning the alleged sexual assaults of the respondent by Tony "Doe".
7As I will explain, Dr. Smith ought not to have been permitted to provide opinion evidence that went to the issues of whether the alleged sexual assaults occurred (liability) and whether Mr. Imeson suffered harm that was caused by such assaults (causation). The expert opinions that were elicited in this trial for such purposes went beyond Dr. Smith's role as a participant expert under Westerhof v. Gee Estate (2015), 124 O.R. (3d) 721, 2015 ONCA 206. Under Westerhof, a participant expert's exemption from rule 53.03 is lost to the extent the expert's opinion is not based on the expert's observation of or participation in the relevant events and not formed as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.
8Furthermore, Dr. Smith's expert opinions going to the issues of liability and causation failed to satisfy the threshold requirements of admissibility under the first step of Mohan (R. v. Mohan, [1994] 2 S.C.R. 9), as that test has been clarified in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 and ought to have been excluded under the second step of the admissibility test because the prejudicial effect of such evidence outweighed its probative value.
B. Facts
(1) The sexual assault action
9Jesse Imeson had a very troubled childhood with significant family instability and behavioural problems. In 1996--1997, he spent a few months at Maryvale, a residential institution devoted to the care and education of troubled youth.
10In 2008, Mr. Imeson was convicted of three counts of second degree murder. The first victim was killed in a fight. A few days later, Mr. Imeson killed two people with their own gun after breaking into their cottage. He is serving three life sentences for murder in a federal penitentiary.
11In 2009 or early 2010, while in prison, Mr. Imeson first alleged that he had been sexually assaulted by Tony "Doe", a former child and youth worker with Maryvale. The complaint was made to his lawyers in this litigation, which was commenced in 2011. He also alleged that, about a year after leaving Maryvale, and while in foster care, he was sexually abused by Father Horwath.
12There were no witnesses to the alleged sexual abuse, which abuse the defendants denied.
13The trial took place in September 2016 before a judge and jury. There were four witnesses: Mr. Imeson, Dr. Smith, Tony "Doe" (the former Maryvale employee) and Father Comiskey, who testified on behalf of the archdiocese. The examination for discovery evidence of Father Horwath, who passed away before the trial, was also read in as evidence at trial.
(2) The expert evidence
(a) Dr. Smith's "reports"
14Dr. Smith provided therapy to Mr. Imeson within the correctional institution from June 26, 2012 to April 13, 2015, when Mr. Imeson discontinued therapy.
15During the treatment sessions, Dr. Smith took handwritten notes, which he kept as personal notes in his file cabinet. In April 2016, at Mr. Imeson's request, Dr. Smith completed summaries of the notes (referred to at trial as his "reports"), which he published to OMS, a computerized document-handling system available to individuals with clearance in Correctional Services Canada. The reports were all dated April 1, 2016, except for a "termination of treatment" report dated April 21, 2016 as well as an earlier report dated February 17, 2015. In accordance with the institution's internal policies, Dr. Smith destroyed his handwritten notes after he published his summaries to OMS.
16Dr. Smith's reports are not a verbatim record of his handwritten notes. They do not indicate specific session dates. They summarize the treatment sessions and include details of the history Mr. Imeson recounted about his family and childhood, the circumstances leading up to his time at Maryvale and in foster care, the alleged sexual assaults and the three murders that resulted in his convictions and imprisonment (which Dr. Smith referred to as the "index offences"). The reports also include a number of comments and opinions, as well as Dr. Smith's recommendations for future treatment. According to Dr. Smith, he made thematic connections in the reports, which were not present in his handwritten notes.
(b) The admissibility voir dire
17The trial judge held a voir dire into the proposed evidence of Dr. Smith, who was put forward as a participant expert.
18The purpose of the voir dire, as identified by the trial judge, was to determine (a) the ability of Dr. Smith to give expert evidence as a participant expert; (b) the basis on which the evidence was being offered; and (c) the scope of the expert evidence.
19Mr. Imeson's counsel confirmed that she intended to lead Dr. Smith's evidence, including the opinions expressed in his reports, on the questions of liability (whether the sexual assaults occurred), causation (whether he suffered harm as a result), as well as damages. She also proposed that Dr. Smith would offer opinions on four matters extending beyond what was contained in his reports, including whether Mr. Imeson had the characteristics and behaviour of a sexual assault victim.
20Mr. Imeson's counsel sought to file Dr. Smith's complete reports in evidence, and to have him testify. Alternatively, she proposed to file as business records, under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23, the reports with all of Dr. Smith's opinions redacted. For this purpose, she provided the trial judge with a copy of the reports, highlighting the opinions.
21Defence counsel opposed the admission of Dr. Smith's opinion evidence on a number of grounds.
22They asserted that Dr. Smith's opinions went beyond those of a participant expert.
23They also argued that Dr. Smith's evidence did not meet the Mohan criteria: he lacked the necessary training and expertise to provide an opinion on childhood sexual abuse and his evidence was not necessary or relevant, especially on the issues of causation and liability. They submitted that the prejudicial effect of the evidence, including its oath-helping potential, outweighed its probative value, such that Dr. Smith should not be permitted to testify at all.
24Defence counsel also took particular issue with the admission into evidence of Dr. Smith's reports. They argued that, as a general rule, parties cannot both file a medical report and call the practitioner as a witness. Moreover, in this particular case, the reports caused irreparable prejudice to the defendants given their oath-helping nature.
25Dr. Smith testified in the voir dire. He explained his qualifications and experience -- that he had been a mental health clinician, working in the prison system for 18 years. He described his areas of specialty as (1) preparing assessments of risk to reoffend for parole board hearings, (2) providing crisis response for inmates engaging in suicidal or self-harming behaviours and (3) providing counselling for inmates with trauma. He confirmed that he had conducted no research in the field of childhood sexual trauma and abuse.
26Dr. Smith acknowledged that his role was not to determine whether what Mr. Imeson told him about being abused had occurred in fact, and that in his therapeutic role he was willing to accept that what Mr. Imeson told him was the truth.
(c) The trial judge's rulings
27The trial judge provided a detailed oral ruling on the admissibility of Dr. Smith's expert evidence, and a second oral ruling permitting his reports to be filed in evidence.
28After noting that the gatekeeper function is particularly important when the jury is the fact-finder, the trial judge adverted to the potential for distorting the fact-finding process where an expert provides oath-helping evidence.
29She concluded that Dr. Smith's credentials and experience qualified him as an expert and that expertise as a mental health clinician was necessary, as "[w]hether the plaintiff has suffered psychological and/or emotional harm is a central issue in this civil action for damages for alleged sexual abuse". She stated that Dr. Smith's proposed evidence was "relevant to that issue and to the nature and extent of that harm if any, as that is a factor to be considered by the jury in assessing damages".
30The trial judge concluded that the probative value of the proposed evidence outweighed its prejudicial effect. She acknowledged that the oath-helping concern was genuine, and would be addressed with a mid-trial jury instruction and in her final instructions.
31The trial judge also noted that, as a treating clinician, Dr. Smith was a participant expert, whose evidence could be accepted without compliance with rule 53.03 of the Rules of Civil Procedure. She quoted the limitation on such evidence articulated in Westerhof: that the opinion to be given be "based on the witness's observation of or participation in the events at issue" and that "the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events": Westerhof, at para. 60.
32As a result, the trial judge permitted Dr. Smith to testify about "his observations of, impressions formed regarding and treatment provided to the plaintiff as set out in the reports prepared by him". She ruled that he was not to give opinion evidence as to any other matter, including (1) whether Mr. Imeson would ever get out of prison; (2) whether he fit the characteristics of someone who had been sexually abused; and (3) whether he matched the characteristics that predatory sex offenders seek out. The exception was that Dr. Smith was permitted to give an opinion about the therapy he would have recommended had Mr. Imeson not terminated treatment. The trial judge cautioned counsel to exercise appropriate caution in their questioning of Dr. Smith to abide by her ruling.
33After the oral ruling was delivered, Mr. Imeson's counsel requested clarification of the ruling, including whether Dr. Smith would be permitted to testify that it was possible that "but for the abuse the first index offence would not have occurred". The trial judge confirmed that this evidence could be led "on the basis that this was an opinion that was formed by Dr. Smith during the course of his assessment of and the therapy provided by him".
34The trial judge then heard argument on whether Dr. Smith's reports could be filed in evidence. She permitted the reports to be filed in their entirety, referring to Dr. Smith's status as a participant expert.
35The trial judge provided written reasons, dated October 5, 2016, which are largely consistent with her oral rulings. In her written reasons, however, she described the relevance of Dr. Smith's evidence to the issues in the trial somewhat more broadly, at paras. 7 and 8:
Whether [Mr. Imeson] has suffered psychological and/or emotional harm is a central issue in this civil action for damages for alleged sexual abuse. I consider the proposed evidence of Dr. Smith to be relevant to that issue and to the nature and extent of that harm, if any, as those are factors among those to be considered by the jury in assessing damages.
The fact that [Mr. Imeson] has sought and undergone counselling and therapy may also be considered by the jury as relevant to whether or not the sexual abuse alleged occurred.
36In her written ruling, the trial judge also confirmed her decision to admit into evidence the reports under s. 35 of the Evidence Act, as she was satisfied that they represented "an organized and accurate summary record of notes made by [Dr. Smith] during therapy sessions of the history taken from, observations made of, and counselling provided to, [Mr. Imeson] by Dr. Smith": at para. 20.
(d) The expert evidence at trial and midtrial instructions
37Before Dr. Smith testified, the trial judge informed the jury that he was qualified to provide "expert opinion with respect to certain issues". Dr. Smith testified that he had provided therapy to Mr. Imeson while he was in prison, in his capacity as a mental health clinician, and he described his qualifications.
38The trial judge gave an instruction, after Dr. Smith's qualifications were presented and before he embarked on the substance of his evidence, in which she cautioned the jury that she had determined that Dr. Smith's evidence was admissible to provide certain opinions, and that any statements Mr. Imeson made to Dr. Smith while taking a history or in the course of therapy were not to be taken as proof that the contents of the statements were true, but only that they were made. (I refer to this as the "hearsay caution".) She also directed that the jury be provided with copies of Dr. Smith's reports, which were marked together as a trial exhibit.
39It is unnecessary for the purpose of this appeal to set out in detail the substantive evidence provided by Dr. Smith. It is sufficient to highlight three "opinions" that were elicited from him. Each was taken from the reports that were also filed in evidence.
40First, at the invitation of Mr. Imeson's counsel, Dr. Smith read out a passage in which he described the problems typical of survivors of childhood sexual abuse.
41Second, Dr. Smith read out this excerpt from one of his reports:
Mr. Imeson's experience of childhood abandonment and abuse have had a strong negative impact on: (a) his ability to regulate emotional responses that occur when he encounters situations that, in some way, recall aspects of abandonment or abuse, and (b) his ability to establish emotionally satisfying relationships with others.
42Dr. Smith was asked to provide examples of the negative impacts on Mr. Imeson's ability to regulate his emotions and to establish relationships with others that flowed from his abandonment and abuse. Dr. Smith referred to Mr. Imeson's suicide attempt in response to the closing of the institution's rehabilitation unit. He mentioned Mr. Imeson's difficult relationship with his mother, his interactions with Tony "Doe", the development of his relationship with Father Horwath and his relationship with his foster parents. He recounted that Mr. Imeson used violence in the group home to gain respect, and then became involved in a culture of drug abuse and impersonal promiscuous sex that, compared to what he had experienced in his past, bolstered his self-esteem.
43Third, Dr. Smith was invited to read out the following opinion:
It is entirely possible that in his index offence Mr. Imeson awoke from a drug and alcohol fueled blackout to discover his victim performing fellatio on him and he re-experienced the sense of betrayal and rage that he felt toward his earlier abuser, and then acted with disinhibited, lethal violence.
44When asked to explain this in lay terms, Dr. Smith said that Mr. Imeson, after having been sexually abused, had a "sense of rage at his abuser and also onto himself". When he awoke and found it was happening again, it reawakened his sense of rage about having his boundaries betrayed and led to a release of aggression. There was a loss of conscious control over his behaviour and dissociation. Dr. Smith described how children who have experienced sexual abuse often talk about leaving their bodies while the abuse is taking place.
45Dr. Smith was asked whether Mr. Imeson's unconscious belief systems related back to his abuse as a child. At that point, the trial judge cautioned that "Dr. Smith cannot speak to causation per se. All he can speak to is his observations and assessments." Counsel then asked another question seeking to relate Mr. Imeson's distorted beliefs and attitudes to his childhood abuse.
46Defence counsel objected that Mr. Imeson's counsel had led evidence from Dr. Smith that was outside the scope of the trial judge's admissibility ruling because it dealt with the abuse having caused certain results. After some discussion in the absence of the jury, including the trial judge asking whether defence counsel was moving for a mistrial (they declined), the trial judge noted that the way the questions were being asked was "driving a conclusion that there [was] a causal connection in which Dr. Smith ha[d] become invested that [was] based upon an acceptance of the veracity" of what he was told. She observed that "the main purpose of the admission of Dr. Smith's evidence was to describe his assessment and treatment of Mr. Imeson, not to bootstrap Mr. Imeson's testimony by saying he believes him".
47When the jury returned, they were not instructed to disregard any part of Dr. Smith's evidence, nor did the trial judge provide a direction respecting the proper use of the evidence. Rather, she reminded the jury of her earlier hearsay caution. Dr. Smith did not answer the question to which objection had been taken.
48In cross-examination, Dr. Smith confirmed that it was not his role to determine if the trauma happened, but only to treat what he was being told. He also confirmed that, in forming his opinions, he only had the information he was given by Mr. Imeson, and that he did not have records from his school, his group homes, Maryvale, his hospital records or his Children's Aid files. Nor did he speak with any of Mr. Imeson's family members.
(e) The jury charge
49In the jury charge, the trial judge described Dr. Smith as an expert witness who was entitled to give opinion evidence. She repeated the hearsay caution and instructed the jury that what Mr. Imeson told Dr. Smith "should be accepted . . . only to show the information upon which the mental health clinician based his opinion".
50Later in her instructions, after she identified the question for the jury to determine as "whether any of the sexual assaults alleged took place", the trial judge gave the following direction:
The plaintiff must prove, on the balance of probabilities, that it was Tony [Doe] and/or Father Horwath who sexually assaulted him. You heard his evidence about this issue. You also heard circumstantial evidence related to the opportunity each of Tony [Doe] and Father Horwath had or did not have to sexually assault the plaintiff. You also heard evidence about the plaintiff's behaviour while at Maryvale and following, including the observations and opinions expressed by Dr. Smith.
51In her review of the evidence, the trial judge did not refer to any evidence from Dr. Smith, or opinions that he had expressed, nor did she mention the evidence of Dr. Smith when she provided instructions about damages.
52Objection was taken during the pre-charge conference to the trial judge's instruction that the jury could consider Dr. Smith's observations and opinions in determining whether the sexual assaults had occurred. Defence counsel specifically objected to the inclusion of any reference to Dr. Smith's evidence in relation to whether or not the plaintiff had been sexually assaulted and argued that no mention should be made of Dr. Smith's evidence in relation to that question. This reference, however, was not removed, and no change was made to this part of the charge before it was delivered.
C. Analysis
53A trial judge's decision with respect to the admissibility of expert evidence is entitled to deference and reversible on appeal only if there is an error in principle or a material misapprehension of the evidence, or if the decision is unreasonable: see R. v. Abbey (2009), 97 O.R. (3d) 330, 2009 ONCA 624, at para. 97; R. v. Shafia, 2016 ONCA 812, [2016] O.J. No. 5627, at para. 248.
54As I will explain, I am of the view that the trial judge erred in admitting Dr. Smith's opinion evidence on the issue of liability (whether the sexual assaults occurred) and causation (whether Mr. Imeson suffered any harm as a result).
(1) Dr. Smith's role as a participant expert
(a) Submissions
55The appellant says that the trial judge erred by permitting Dr. Smith to provide expert opinion evidence as a participant expert. The appellant submits that, at most (and though unnecessary), Dr. Smith was properly qualified only to opine on Mr. Imeson's mental health status at the time of his assessments and the appropriate course of treatment.
56The respondent, for his part, submits that the trial judge properly identified Dr. Smith as a participant expert and properly set limits on his testimony in her ruling.
(b) Discussion
57As explained above, in her oral ruling on the voir dire, the trial judge recognized the limited role of a participant expert under Westerhof. She ruled that Dr. Smith was permitted to testify about "his observations of, impressions formed regarding and treatment provided to the Plaintiff as set out in the reports prepared by him . . . without having to comply with Rule 53.03" but not anything beyond the reports (other than what therapy he would have recommended for Mr. Imeson). She also allowed the reports to be tendered into evidence.
58As the trial judge recognized, great care was required to ensure that Dr. Smith did not provide any opinion evidence that exceeded the scope of proper opinions to be offered by a participant expert. Unfortunately, she permitted that to happen by admitting Dr. Smith's unredacted reports into evidence and permitting him to testify about anything that was contained in the reports.
59In considering the proper scope of Dr. Smith's evidence as a participant expert, it is important to remember how participant experts differ from litigation experts.
60In the civil litigation context, a litigation expert is subject to rule 53.03. This rule requires, among other things, an expert report that sets out the expert's opinions, as well as an acknowledgment of the expert's duty. Typically, an expert report provides a "roadmap of the anticipated testimony and specific limits may be placed on certain areas of testimony": Bruff-Murphy (Litigation guardian of) v. Gunawardena (2017), 138 O.R. (3d) 584, 2017 ONCA 502, at para. 62. The expert's report will provide the framework for discussion about the proper scope of the expert's testimony.
61In contrast, under Westerhof, participant experts may give opinion evidence without complying with rule 53.03. Typically, any opinions that are sought to be introduced are found in the clinician's clinical notes and records, or in reports prepared for the purpose of consultation and treatment.
62In Westerhof, this court explained the proper role of a participant witness, at para. 60, as follows:
[A] witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:
-- the opinion to be given is based on the witness's observation of or participation in the events at issue; and
-- the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.
63If participant experts proffer opinion evidence extending beyond these limits, they must comply with rule 53.03 "with respect to the portion of their opinions extending beyond those limits": Westerhof, at para. 63. In acting as a gatekeeper, trial judges have the important task of ensuring that participant experts do not exceed their proper role or, if they do, that there is compliance with rule 53.03.
64As indicated earlier, among other things, in his evidence Dr. Smith
identified the problems typical of survivors of childhood sexual abuse;
testified about the negative impacts that Mr. Imeson's experiences of childhood abandonment and abuse had on his ability to regulate emotional responses and his ability to establish emotionally satisfying relationships, and he provided examples; and
expressed the opinion that it was "entirely possible" that Mr. Imeson's first murder occurred when he awoke from a blackout to discover his victim performing fellatio on him, and re-experiencing the sense of betrayal and rage he felt toward his earlier abuser, he acted with disinhibited lethal violence.
65This opinion evidence from Dr. Smith's reports was repeated in his oral evidence. This evidence went to the issues of whether the sexual assaults occurred and whether Mr. Imeson suffered any harm as a result.
66The difficulty in this case was that there was no expert report per se, nor were there any clinical notes or records. Dr. Smith's opinions had to be gleaned from the reports he had prepared based on the handwritten treatment notes he had destroyed. Mr. Imeson's counsel also identified additional opinions that she proposed to elicit from Dr. Smith that were outside the scope of the reports.
67During the voir dire, Mr. Imeson's counsel provided a highlighted version of the reports, identifying the "opinions" he appeared to express. There was, however, no review of the specific opinions, or of the contents of the reports, during the admissibility voir dire.
68Instead, after ruling that Dr. Smith would be able to testify about "his observations of, impressions formed regarding and treatment provided to the plaintiff as set out in the reports prepared by him", the trial judge permitted him to testify about anything that was contained in the reports, without exception.
69The trial judge's attention was firmly on ensuring that Dr. Smith did not offer any opinions beyond what was contained in his reports (apart from the one discrete issue about treatment). She did not focus on the opinions that were in the reports, and consider whether any or all of the contents of the reports exceeded the scope of proper opinions to be offered by a participant expert.
70I am prepared to accept that it was appropriate for Dr. Smith in his role as a participant expert to provide evidence about Mr. Imeson's mental condition, the treatment that he provided, Mr. Imeson's response to treatment and the therapy he would have recommended had Mr. Imeson not terminated treatment. As the trial judge recognized, such evidence goes to the question of whether Mr. Imeson suffered harm. However, the fact that Dr. Smith might properly have given evidence on those matters would not make his unredacted reports admissible, and allow him to testify about everything that was contained in his reports.
71In the circumstances of this case, it was particularly important to consider the nature of the various opinions proffered by Dr. Smith in his reports and the purpose for which they were being led before permitting Dr. Smith to testify as a participant expert witness. As I have noted, Dr. Smith completed his reports (except for the one dated February 17, 2015) approximately a year after Mr. Imeson had discontinued his therapy. According to Dr. Smith, he made thematic connections in the reports, which were not present in his handwritten notes. At the time, he knew that Mr. Imeson had commenced litigation. In these circumstances, it is difficult to imagine why Mr. Imeson would have requested that Dr. Smith prepare the reports other than for the purpose of litigation. In my view, these circumstances blurred Dr. Smith's role.
72Applying Westerhof in the circumstances of this case, Dr. Smith's opinion evidence included evidence falling outside the proper scope of evidence tendered by a participant expert.
73As Westerhof instructs, an opinion offered by a participant expert must be given as part of the ordinary exercise of the witness' skill, knowledge, training and experience. Here, any opinion offered by Dr. Smith that sought to draw a causal link between the alleged sexual assaults and Mr. Imeson's later behaviour could not have been based on his skill, knowledge, training and experience while he was involved in Mr. Imeson's treatment. Rather, Dr. Smith testified that, in his therapeutic role, he accepted Mr. Imeson's statements that he had been abused as true, and he confirmed that it was not his role to determine if the trauma happened, but only to trust what he was being told.
74Westerhof also instructs that the opinion given by a participant expert must be based on the witness' observation of or participation in the events at issue. Here, Dr. Smith testified as to the problems typical of survivors of childhood sexual abuse -- evidence going to the issue of whether the assaults occurred. His evidence about survivors as a group was not based on his observation of, or treatment of, Mr. Imeson, and thus went beyond the proper scope of any opinion he could provide as a participant expert.
75I conclude that, despite the trial judge's recognition that the role of a participant expert is restricted, she permitted Dr. Smith to exceed his proper role by allowing him to testify about anything contained in his reports, and in admitting the reports into evidence, without first carefully examining what opinions were included in the reports, and the purpose for which it was proposed that the jury consider such opinions.
76In light of my disposition of this first issue, strictly speaking there is no need to consider the trial judge's admissibility analysis under Mohan as it relates to Dr. Smith's opinion evidence going to the issues of liability and causation. However, given that I would send this matter back for a retrial, it may be helpful to discuss the appellant's Mohan/White Burgess arguments as they relate to that evidence. I note that Westerhof, at para. 63, recognizes that the court may permit a treating clinician who complies with rule 53.03 to provide evidence extending beyond the bounds permitted for opinion evidence of a participant expert, subject to the court's exercise of its gatekeeping role.
77There is also the matter of Dr. Smith's evidence about Mr. Imeson's mental condition, the treatment that he provided, Mr. Imeson's response to treatment and recommended future treatment. As I have said, I accept that it was appropriate for Dr. Smith to provide evidence on those points in his capacity as a participant expert. On appeal, the appellant did not take serious issue with the admission of that evidence, although he suggested it may have been unnecessary. As I would send this matter back for a re-trial, I prefer to leave the question of the admissibility of that evidence under Mohan/White Burgess for the trial judge on the re-trial, if the respondent seeks to have Dr. Smith's evidence admitted on that point.
(2) The Mohan/White Burgess framework
(a) Submissions
78The appellant says that Dr. Smith's evidence failed to meet the threshold requirements to be admissible under Mohan. In particular, the appellant argues that Dr. Smith's expert evidence failed to meet the threshold requirements of necessity and the need for a properly qualified expert. The case turned on the respondent's credibility, and the appellant argues that if the "oath-helping" evidence of Dr. Smith had been excluded, the jury would never have concluded that the respondent was sexually assaulted by Tony "Doe".
79The respondent asserts that, applying Mohan/White Burgess, there is no basis to interfere with the trial judge's decision to admit Dr. Smith's opinion evidence, including his reports. This decision was an exercise of discretion, entitled to deference, and free of any error in principle. The respondent asserts that Dr. Smith's opinion evidence was relevant, necessary and properly admitted at trial on the question of whether the sexual assaults occurred, as well as on causation and damages. He also contends that the trial judge appropriately addressed the oath-helping potential of such evidence by providing the hearsay caution and setting limits on Dr. Smith's testimony.
(b) Discussion
80There are two steps in assessing the admissibility of expert evidence under the Mohan/White Burgess framework: White Burgess, at paras. 23-24.
81The first step in determining admissibility is for the court to assess whether the proposed expert evidence meets the threshold requirements that the evidence is (i) logically relevant; (ii) necessary to assist the trier of fact; (iii) not subject to any other exclusionary rule; and (iv) proffered by a properly qualified expert who is willing and able to provide evidence that is impartial, independent and unbiased: see White Burgess, at paras. 23, 53; Mohan, pp. 20-25 S.C.R.
82If the proponent of the evidence establishes the threshold for admissibility, the second discretionary gatekeeping step is for the trial judge to determine whether the potential benefits of admitting the evidence outweigh its potential risks to the trial process: White Burgess, at para. 24.
83The trial judge was correct that participant expert witnesses are subject to the Mohan/White Burgess test for the admissibility of expert evidence: Westerhof, at para. 64. In my view, on a proper application of the Mohan/White Burgess framework, Dr. Smith's opinion evidence going to the issues of liability and causation should have been excluded.
84The first problem, as I see it, is that the admissibility criteria were not applied to the specific opinions it was proposed that Dr. Smith would provide. As Doherty J.A. explained in Abbey, the first step in determining admissibility of an expert's opinion evidence is to identify the substance and scope of an expert's opinion. He cautioned, at para. 62, that this first step is essential:
The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope 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. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential.
85In this case, the trial judge did not consider the specific opinions to be proffered by Dr. Smith, other than the four opinions that were not contained in his reports. The Mohan/White Burgess analysis ought to have been applied with the particular opinions in mind, as well as their intended use.
86Turning to the specific threshold criteria, I agree with the respondent that Dr. Smith's evidence was not necessary to the central liability question -- whether the sexual assaults occurred. That issue depended on an assessment of credibility. There was no need for expert evidence to help the jury decide whether Mr. Imeson was credible. Indeed, as I have explained, Dr. Smith's observations related to whether the assaults occurred, and the connections he drew between Mr. Imeson's conduct and the sexual abuse, were not premised on Dr. Smith's expertise. Rather, he readily acknowledged that his role was not to determine whether the abuse actually occurred, and that, in his therapeutic role, he was willing to accept what Mr. Imeson told him as the truth.
87The respondent contends that Dr. Smith's opinion linking Mr. Imeson's subsequent conduct to his sexual abuse was essential evidence for the jury to consider in determining whether the abuse he testified about had occurred. His counsel points to R. v. Llorenz, [2000] O.J. No. 1885, where this court accepted, at para. 35, that "in some cases, expert evidence may be admitted to show that certain behaviours, symptoms, or psychological conditions could be consistent with sexual abuse".
88In my view, it cannot be said that Dr. Smith's evidence linking Mr. Imeson's subsequent conduct to the alleged sexual abuse was essential to assist the jury since Dr. Smith was not even qualified to give such evidence. While he had the qualifications of a mental health clinician (the expertise that was accepted by the trial judge), his qualifications were not considered in connection with the opinions sought to be elicited from him. Dr. Smith was permitted to give opinion evidence related to the issue of whether the alleged abuse occurred, even though none of Dr. Smith's qualifications demonstrated expertise in sexual abuse.
89Dr. Smith estimated that between 25 per cent and 30 per cent of the inmates he saw had suffered from childhood sexual abuse. However, the fact that Dr. Smith understood that many of his patients had suffered from childhood sexual abuse does not, of course, make him an expert in the field. While Dr. Smith had expertise in treating prisoners with trauma, he did not have particular expertise in childhood sexual abuse. Accordingly, Dr. Smith was not qualified to offer an opinion about the problems typical of survivors of sexual abuse, or as to the relationship between the alleged sexual assaults and Mr. Imeson's subsequent difficulties, including the commission of the first murder.
90In conclusion, I agree with the respondent that Dr. Smith's opinion evidence that was tendered on the issues of liability and causation did not meet the threshold criteria to be admissible as expert evidence, as the evidence was not necessary and Dr. Smith did not have the required expertise. As that decides the threshold question, I need not deal with other aspects of the threshold criteria. In particular, I note that the question of Dr. Smith's impartiality in relation to the opinions he offered was not argued on appeal and I will not therefore address that issue.
91While unnecessary to go further, I would also comment briefly on the trial judge's gatekeeping role under the second part of the Mohan/White Burgess framework.
92Under the second part of the Mohan/White Burgess framework, the trial judge must assess the benefits of admitting the evidence against its potential risks. The cost-benefit analysis to be undertaken as part of the trial judge's role "is a specific application of the court's general residual discretion to exclude evidence whose prejudicial effect is greater than its probative value": Bruff-Murphy, at para. 65.
93In this case, the admission of Dr. Smith's opinion evidence carried a number of risks to the trial process.
94One such risk was that the jury might conclude that Dr. Smith's testimony of what he was told by Mr. Imeson was proof of the truth of Mr. Imeson's narrative. The trial judge addressed this risk with the hearsay caution.
95The admission of Dr. Smith's opinion evidence presented other risks to the trial process.
96First, there was the danger that Dr. Smith's evidence would usurp the jury's function of deciding credibility. As noted by the Supreme Court in R. v. Marquard, [1993] 4 S.C.R. 223, at para. 49"credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties".
97Second, the jury had before it, in Dr. Smith's unedited and unredacted reports, a great deal of material that was irrelevant to issues in the proceedings, but that contained tremendous oath-helping potential. For example, Dr. Smith once referred to an incident where Mr. Imeson admitted to having taken another inmate's medication. Mr. Imeson's explanation, according to Dr. Smith's report, was that he came forward with the information because "he had committed himself to honesty".
98To her credit, the trial judge acknowledged that the oath-helping concern was genuine, but determined that it could be addressed through her mid-trial jury instruction and in her final instructions. She did not, however, weigh all the risks I have identified against the possible benefits of admitting the evidence, or consider how the risks might be mitigated other than through the hearsay caution. In my view, the hearsay caution was insufficient to address the various risks present in this case, including the very real risk of oath-helping.
99As this court noted in Llorenz, oath-helping evidence should not be admitted simply because it is led for another purpose. A court must still weigh the probative value of the evidence against its prejudicial effect: "In cases which turn on the question of which one of two witnesses is telling the truth, there is the danger that a jury may attach significant weight to the oath-helping aspect of the evidence of an expert, even if instructed to do otherwise": Llorenz, at para. 32.
100In conclusion, Dr. Smith's opinion evidence going to the issues of liability and causation not only exceeded the scope of proper opinions to be offered by a participant expert, but also failed to satisfy the Mohan/White Burgess test for admissibility.
(3) Effect of the trial judge's error
101The final issue concerns the effect of the trial judge's error in admitting Dr. Smith's evidence on the issues of whether the assaults occurred and whether Mr. Imeson suffered any harm as a result.
102The appellant contends that the admission of Dr. Smith's opinion evidence on those issues was a fatal error that would require a new trial. The respondent does not really argue to the contrary.
103The respondent's success at trial was dependent on the jury's having accepted that Mr. Imeson had been sexually abused by Tony "Doe" and that the abuse caused him harm. Dr. Smith's evidence ought not to have been admitted on those issues; however, the jury was specifically instructed to consider his evidence together with all of the other evidence in determining whether the sexual assaults occurred. The only proper disposition, in my view, is to allow the appeal and to direct a new trial.
D. Disposition
104For these reasons, I would allow the appeal and direct a new trial involving only the parties to this appeal.
105I would order the respondent to pay costs of the appeal in the sum of $50,000, inclusive of disbursements and applicable taxes, the amount agreed between the parties. I would reserve the costs in the court below to the judge hearing the re-trial.
Appeal allowed.
Notes
1 I note that one report, dated February 17, 2015, was prepared a year earlier while Mr. Imeson's therapy with Dr. Smith was still ongoing. That report does not contain any of the opinions related to liability or causation that are at issue on this appeal.
2 In the case of an opinion based on novel or contested science or science used for a novel purpose, which is not the case here, there is an additional requirement: the proponent must establish the reliability of the underlying science for that purpose: White Burgess, at para. 23.
