COURT OF APPEAL FOR ONTARIO
DATE: 20000601
DOCKET: C32783
LASKIN, O'CONNOR and SHARPE JJ.A.
B E T W E E N : )
) Robert Goddard
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) Renee M. Pomerance
) for the respondent
HUGO GAYETANO LLORENZ )
)
Appellant )
) Heard: February 22, 2000
On appeal from the conviction by Madam Justice German, sitting
with a jury, dated November 17, 1995 and the sentence imposed on
December 8, 1995.
O’CONNOR J.A.:
[1] After a trial by a judge and jury, the appellant was
convicted of gross indecency, intercourse with a female under
fourteen, sexual interference, and sexual exploitation. The
appellant was sentenced to a total of eight years imprisonment.
He appeals the convictions and the sentence.
[2] The complainant alleged that the appellant sexually abused
her on hundreds of occasions over a six year period beginning
when she was ten years old. The Crown called a psychiatrist who
had treated the complainant for a period of two and a half years
after the alleged abuse. The psychiatrist gave evidence about
his diagnosis of the complainant’s condition as it related to the
allegations of sexual abuse. The appellant testified and denied
the allegations.
[3] The appeal against conviction raises two issues: the
admissibility of portions of the psychiatrist’s evidence and the
adequacy of the trial judge’s charge on the use to be made of
this evidence. I am satisfied that a good deal of the
psychiatrist’s evidence came within the impermissible category of
“oath-helping” and as such was not admissible for the purpose of
establishing that the complainant was truthful in making the
allegations of sexual abuse. Moreover, the trial judge failed to
instruct the jury that this evidence could not be used for that
impermissible purpose. Given that the credibility of the
complainant was central to the Crown’s case, I am of the view
that the appeal must be allowed and a new trial ordered.
FACTS
[4] It is not necessary to set out more than a brief summary of
the facts. I will refer to the psychiatrist’s evidence in detail
in the course of my analysis of the issues.
[5] In 1985, when the complainant was ten years old, her mother
introduced her to the appellant who claimed to be a psychic. He
had told the mother that the complainant was born with a curse
and that, if she was not cured, she would die by the age of 16.
The appellant said he could cure the complainant by passing
energy to her, but that it would be a lengthy process. The
complainant and her mother, who were both members of a South
American religious cult, testified that they believed the
appellant.
[6] The complainant began spending time with the appellant and
met with him regularly in his apartment for the healing sessions.
She said she often slept over at the appellant’s apartment.
According to her testimony, the healing sessions gradually turned
into sexual encounters. She protested at first, but went along
after the appellant told her that he was offended because she was
like a daughter to him. In time, sexual touching escalated to
oral and vaginal intercourse. The complainant said there were
between 500 and 650 acts of sexual intercourse over the six year
period ending in 1991.
[7] The defence challenged the complainant’s credibility on
cross-examination, pointing out inconsistencies between her
testimony at trial and what she had said on earlier occasions.
The defence also focussed on the fact that the complainant had
allegedly endured sexual abuse for six years without complaint
and that her mother had not noticed that the abuse was occurring.
[8] Although there was some independent evidence that tended to
support some aspects of the events recounted by the complainant,
the Crown’s case rested almost entirely on the credibility of the
complainant. There was no independent evidence of the sexual
abuse.
[9] The complainant did not immediately complain about the
abuse. In April 1993, approximately two years after the alleged
sexual abuse ended, she was referred to Dr. Voysey, a
psychiatrist. The purpose of the therapy was to address
emotional and psychological difficulties she was experiencing.
Over the course of the therapy sessions, the complainant
progressively provided information about sexual abuse that she
said she had suffered at the hands of the appellant. She
recalled these incidents in part as a result of “flashbacks.”
[10] The appellant testified and denied all the allegations of
sexual abuse. He said that he is a psychic with a greater
capacity than others to do certain things. He told the
complainant’s mother that “the instinctive mind” of her second
child, the complainant, would die at age 16 unless she was cured.
As a result of this, he put energy into healing the complainant.
He spent considerable time with her. He said that he regarded
her as a daughter and that he taught her living skills like
cooking and washing.
[11] The defence called witnesses who lived in the appellant’s
apartment for part of the relevant time period, or who were
present in the apartment from time to time. They said that the
complainant did not sleep over during the time they were present.
[12] The defence also called Dr. Allan Long, a psychologist, who
was qualified as an expert to give an opinion of the “blocking
out” phenomenon, flashbacks, repressed memory, and related
matters. When told that the complainant reconstructed her memory
in bits and pieces, Dr. Long said that this was very unusual,
especially in the case of repeated sexual assaults over an
extended period of time. Dr. Long also testified that the idea
of repressed memory is still very controversial. Finally, he
responded to Dr. Voysey’s testimony, summarized below, by saying
that the role of a therapist is to treat people, not to evaluate
their credibility or investigate their recounting of past events.
ANALYSIS
(a) Admissibility of Dr. Voysey’s opinion
[13] Dr. Voysey, a practising psychiatrist, was qualified as an
expert to express opinions in the areas of adolescent psychology
and childhood sexual abuse. He began to see the complainant in
April 1993. At the time he gave evidence, he had been seeing the
complainant approximately twice a week for two and a half years.
Dr. Voysey’s opinions were based on his personal knowledge of the
complainant and on his general knowledge of child sexual abuse as
a specialist in the psychiatric treatment of adolescents.
[14] Dr. Voysey testified that he made a number of diagnoses. He
said the complainant suffered from severe depression, drug abuse,
a borderline personality disorder, and a post-traumatic stress
disorder. Dr. Voysey testified that when the complainant
disclosed the allegations of sexual abuse to him he encouraged
her to go to the police. However, he did not become involved in
the police investigation.
[15] A considerable portion of Dr. Voysey’s evidence-in-chief
dealt with his diagnosis of the complainant’s condition as it
related to her allegations of sexual abuse. Dr. Voysey did not
specifically say that he believed the complainant was telling the
truth in making the allegations. The unmistakable message
communicated to the jury, however, was that he had discussed the
complainant’s allegations of sexual abuse with her over an
extended period of time and that he believed she was telling the
truth. It is the substance of this message, the oath-helping
nature of Dr. Voysey’s evidence, that is in issue on this appeal.
[16] After Dr. Voysey gave his opinion that the complainant
suffered from a post- traumatic stress disorder. He referred to
a document entitled “Recommended Factors to be Taken into Account
in the Assessment of Sexual Victim Trauma Severity.” This
document, the doctor testified, had been prepared by him in
relation to another case where he had been asked to assess the
severity of sexual abuse. It was based on his experience, his
reading, and on literature documenting 282 cases of sexual abuse.
The doctor stated that the purpose of the document was to “speak
to the severity of the post-traumatic stress disorder, given that
the source of the trauma is sexual victim trauma.”
[17] Although the document was not entered as an exhibit, the
jurors were provided with copies to enable them to more readily
follow Dr. Voysey’s evidence. They were asked to return the
copies at the conclusion of the doctor’s evidence.
[18] The document contained a list of 24 factors regarding, for
the most part, the psychological or physical condition of the
victim whose abuse is being assessed. In his evidence, the
doctor reviewed each of the factors. First, he explained the
nature of the particular factor. Then he gave his opinion about
whether the factor was present in the complainant’s case.
[19] By way of example, one factor was “interpersonal
relationship problems”. This factor is consistent with sexual
abuse, according to Dr. Voysey’s testimony, and he stated: “… in
this case [of the complainant] I see this factor present quite
significantly.” Another factor was suicidal behaviour.
According to Dr. Voysey: “… about 50 percent of sexual abuse
victims are suicidal. In this case, this was seen from day one.”
Another was “the degree of sexual responsiveness experienced by
the victim” which “seems to have a very strong association with
severe sexual abuse … and I believe that was present in this
case.” Finally, the factor of “terror” was present “in 92
percent of patients who were ranked in the severe category, and I
say here I believe this was strongly present.”
[20] In Dr. Voysey’s opinion, the complainant’s condition matched
approximately 20 of the 24 factors he considered to be common in
cases of sexual abuse. The very nature of this exercise,
measuring the complainant’s condition against the 24 factors that
Dr. Voysey considered helpful in assessing the severity of sexual
abuse, and the rather dramatic result that the complainant
demonstrated the large majority of them, was likely to send a
strong message to the jury that Dr. Voysey believed the
complainant’s allegations. The title of the document suggested
that the 24 factors would be considered by Dr. Voysey in relation
to persons whom he had already determined had suffered from
sexual abuse. The review of the factors was aimed at determining
the severity of that abuse. In this case, the review of the 24
factors was done in relation to the complainant’s specific
allegations of sexual abuse against the appellant. The result of
this review could only be interpreted as meaning that Dr. Voysey
concluded that the complainant had been severely abused as she
alleged.
[21] Moreover, during the course of the review of the 24 factors,
Dr. Voysey made a number of statements that tended to confirm the
impression that he believed the complainant was telling the
truth. For example, he said: “…in this situation [the
complainant’s] there was abuse over a six or more year period”;
…. “In this case [the complainant’s] I believe there was some
violence used in that she was hit and that she feared being hit”;
and … “Both [terror and violence] were present in this case and
both alone would get her into the severe category.”
[22] Immediately following his review of the 24 factors, Dr.
Voysey said that he was not an investigator of the extrinsic
facts of the case and that his assessment relied on “self-
reports, conversation and my assessment of those self-reports,
their internal consistency, their lack of validity over time.”
[My emphasis.]
[23] Later in Dr. Voysey’s testimony, the following exchange took
place, which in my view solidified the message that Dr. Voysey
believed that the complainant was telling the truth:
Q. But thinking only of [the complainant]
herself, in the two-and-a-half years I gather
that you have discussed her allegations of
sexual abuse?
A. I have, yes.
Q. During those two-and-a-half years,
can you comment on the internal consistency
of what she’s told you, and by that I mean
have you ever had the experience of getting
one story one day and a different story the
next day?
A. Not to any significant degree. And
significant degree is for me to alter any of
my diagnoses. So again I want to point out I
was not determining fact, but by determining
internal consistency I can, for example, see
if the person is more lying and trying to get
away with it, which I didn’t find, or is out
of touch with reality, because reality will
change differently than how their mind will
change, and I did not find that in this
circumstance either. So there is a high
degree of internal consistency, high enough
for me to be quite confident in the
diagnoses. They seemed to have settled and
are working. I’m also treating her for those
diagnoses, and she seems to be responding.
[My emphasis.]
[24] In giving his evidence relating to the complainant’s
allegations of sexual abuse, Dr. Voysey expressed a number of
disclaimers. He said that it was not his job to determine the
facts; rather, that was a matter for the fact finders and the
police. Also, he said that he did not investigate the extrinsic
facts to determine if there had been sexual abuse. Further, he
acknowledged, as I pointed out above, that his opinions were
based only on what the complainant told him, self-reports, and
his assessments of the self-reports. Finally, in cross-
examination, he said there is no such thing as a sexual abuse
syndrome, and that “there is nothing I could find as a
psychiatrist that would find evidence of sexual abuse.” He said
that “the thrust” of his evidence was that there were indicators
consistent with sexual abuse in the case of the complainant.
[25] I am satisfied that, taken as a whole, Dr. Voysey’s evidence
communicated to the jury the clear message that he believed the
complainant’s allegations of sexual abuse. In my view, his
statement that “there is a high degree of internal consistency,
high enough for me to be quite confident in the diagnosis”
clearly expressed his opinion that the complainant was telling
the truth about the abuse she reported to him. The disclaimers
did not seriously detract from this message. They did not refer
to the doctor’s belief in the complainant’s truthfulness nor were
they inconsistent with the evidence communicating that belief.
[26] The first issue then is whether the evidence that
communicated Dr. Voysey’s belief in the truthfulness of the
complainant’s allegations should have been admitted. Somewhat
surprisingly, there was no objection to any of this evidence and
as a result the trial judge was not asked to focus on the oath-
helping nature of the evidence.
[27] The rule against oath-helping prohibits the admission of
evidence adduced solely for the purpose of proving that a witness
is truthful. The rule applies to evidence “that would tend to
prove the truthfulness of the witness rather than the truth of
the witness’s statements”: R. v. B.(F.F.) (1993), 79 C.C.C. (3d)
112 (S.C.C.), per Iacobucci J., at 135.
[28] The line to be drawn when evidence is considered to be oath-
helping is not always clear. There is a distinction to be made
between (1) evidence about credibility (i.e. in my opinion the
witness is truthful), which is inadmissible and (2) evidence
about a feature of the witness’s behaviour or testimony, which
may be admissible even though it will likely have some bearing on
the trier of fact’s ultimate determination of the question of
credibility: R. v. K.(A.) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), per
Charron J., at 678.
[29] In R. v. Marquard (1993), 1993 37 (SCC), 85 C.C.C. (3d) 193 at 228
(S.C.C.), McLachlin J. described the rule and the rationale for
it as follows, at 228:
It is a fundamental axiom of our trial
process that the ultimate conclusion as to
the credibility or truthfulness of a
particular witness is for the trier of fact,
and is not the proper subject of expert
opinion….
A judge or jury who simply accepts an
expert’s opinion on the credibility of a
witness would be abandoning its duty to
itself determine the credibility of the
witness. Credibility must always be the
product of the judge or jury’s view of the
diverse ingredients it has perceived at
trial, combined with experience, logic and an
intuitive sense of the matter…. Moreover,
the expert’s opinion may be founded on
factors which are not in the evidence upon
which the judge and juror are duty-bound to
render a true verdict. Finally, 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.
[30] Evidence is not necessarily inadmissible simply because it
falls into the oath-helping category. It may still be admitted
if, in addition to being oath-helping, it has some other
legitimate purpose. In R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, the
court considered whether the opinion of a psychiatrist called by
the Crown that the complainant had not been untruthful when
describing the allegations of sexual abuse was admissible. In
this regard, McLachlin J., at 668-9, said the following:
Dr. Maddess’ evidence does not violate the rule
because it was directed to legitimate purposes
having nothing to do with whether the complainant
was credible or not. The fact that evidence may
be inadmissible for one purpose (i.e. showing the
truthfulness of a witness) does not prevent it
being received for another, legitimate purpose.
The evidence of Dr. Maddess in the impugned passage
was admissible for the purpose of supporting the
opinions Dr. Maddess expressed on other matters,
such as his diagnosis of the complainant’s
condition and his explanation of her behaviour.
His conclusions were based in large part on what
she had told him. Those conclusions would be
weakened if not invalidated if he did not believe
what she had told him. So it was relevant to
determine whether he believed her or not….
….In short, there is nothing in the record to
suggest that the trial judge used the statement to
bolster the complainant’s credibility; indeed the
inference is to the contrary.
[31] I do not take Burns to hold that oath-helping evidence
should necessarily be admitted simply because it is led for
another proper purpose. When considering the admissibility of
such evidence, a court must still weigh its probative value in
relation to its legitimate purpose, against its prejudicial
effect. In this analysis, the court should be cautious about the
potential for distorting the fact finding process, particularly
where the oath-helping evidence is that of an expert. Issues of
credibility are for the trier of fact to decide, not experts.
[32] 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. In
Khan v. College of Physicians & Surgeons of Ontario (1992), 76
C.C.C. (3d) 10 (Ont. C.A.), Doherty J.A., at 33, described the
concern about undue reliance on experts as follows:
Faced with the often intractable problem of trying
to decide who is telling the truth in cases of
alleged child abuse, the trier of fact may seek
refuge in the apparent security and objectivity of
the expert’s opinion evidence ….
Thus, if evidence with an oath-helping component is admitted for
another purpose, there should be a genuine effort to limit the
oath-helping aspects of the evidence as much as possible in order
to minimize the potential for misuse of the evidence.
[33] I turn now to the question of the admissibility of Dr.
Voysey’s evidence in this case. As I said above, there was no
objection to any of his evidence. Some portions of Dr. Voysey’s
evidence were properly admitted as part of the narrative. For
one, the complaints first came to light during discussions
between Dr. Voysey and the complainant. These disclosures led
the complainant to contact the police, which in turn led to the
charges being laid two years after the alleged abuse had stopped.
It was open to the Crown to call evidence to provide the context
in which the allegations were first made. However, this
admissible evidence, which formed part of the narrative, was a
relatively small part of Dr. Voysey’s testimony. It did not
require the extensive testimony about the 24 factors, nor Dr.
Voysey’s opinion as to the internal consistency of the
complainant’s allegations.
[34] In addition, it was open to the Crown to lead evidence from
Dr. Voysey to explain that the failure of the complainant to
disclose the abuse at an earlier point in time was not
necessarily inconsistent with the abuse having occurred. When
the credibility of a complainant in a sexual abuse case is
challenged on the basis of delayed disclosure, as in this case,
evidence may be admitted to explain the delay: R. v. K. (A.),
supra; R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 (C.A.).
However, very little, if any, of Dr. Voysey’s evidence was led
for this purpose. On the contrary, the bulk of the evidence
relating to the 24 factors and the applicability of those factors
to the complainant had nothing to do with explaining the delayed
disclosure.
[35] Finally, it may be argued that Dr. Voysey’s opinion that the
complainant’s condition was consistent with sexual abuse was
admissible as evidence that tended to support the complainant’s
testimony that she had been abused. This court has held that, in
some cases, expert evidence may be admitted to show that certain
behaviours, symptoms, or psychological conditions could be
consistent with sexual abuse: see, for example, R. v. J. (F.E.)
(1989), 1989 7131 (ON CA), 53 C.C.C. (3d) 64 at 70 (Ont. C.A.); R. v. R.(S.)
(1992), 1992 7546 (ON CA), 73 C.C.C. (3d) 225 at 230-1 (Ont. C.A.).
[36] When the admissibility of evidence of this nature is being
considered, however, it is necessary to take great care to ensure
that the prejudicial effect does not outweigh its probative
value. Admission of this kind of evidence raises the serious
possibility that a trier of fact, particularly a jury, will have
difficulty in making the important distinction between using the
evidence for the permissible purpose of supporting the truth of
the complainant’s statements, on the one hand, and using it for
the impermissible purpose of showing that the complainant is a
truthful witness, on the other. When one considers the
additional concern that expert psychiatric evidence of this
nature may not demonstrate the same degree of scientific
reliability as the evidence of experts in some other areas, it is
essential that the courts approach the weighing exercise with
caution. That said, if evidence is to be admitted for the
purpose of showing that the complainant’s condition was
consistent with sexual abuse, then the evidence should be led in
a manner that reduces, to the extent possible, the potential for
its misuse.
[37] In this case I do not think that it was necessary for the
Crown to lead the evidence of the 24-point list, with the
accompanying opinions, in order for Dr. Voysey to express his
opinion that the complainant suffered from symptoms that were
consistent with sexual abuse. In any event, I am satisfied that
the strength of the oath-helping message that emerged from this
evidence was such that the unfair prejudicial effect far
outweighed its probative value. Dr. Voysey’s review of the 24-
point list, combined with his opinion that the complainant’s
condition scored very high on the list, was central to the
examination-in-chief. The importance of this evidence was
emphasized by the provision of copies of the list to each of the
jurors.
[38] There was a serious likelihood that the jury would have
attached substantial weight to Dr. Voysey’s obvious belief that
the complainant was telling the truth. He had seen her on a
regular basis over a two and one half year period. He was an
expert in matters of childhood sexual abuse, and he clearly had a
more thorough opportunity than the jury to assess the
complainant’s credibility. Diagnosing and treating sexual abuse
victims was part of his expertise. In these circumstances, it
would be difficult for the jurors, even if properly instructed,
to avoid using Dr. Voysey’s opinion for the impermissible oath-
helping purpose.
[39] In addition to the problem arising from the oath-helping
nature of the evidence relating to the 24 factors, there is an
additional concern about the reliability of the evidence, or more
accurately perhaps, the lack of reliability. Because there was
no objection, the court’s attention was not directed to this
issue. Nevertheless, expert opinion evidence should only be
admitted when it is established that the opinion is based on a
body of knowledge that is shown to be scientifically recognized
and reliable: R. v. McIntosh (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), R.
v. Terceira (1998), 1998 2174 (ON CA), 38 O.R. (3d) 175 (C.A.). The record in this
case falls short of satisfying this requirement. Without in any
way diminishing Dr. Voysey’s expertise, there was no evidence
that the 24-factor approach had been used or accepted by others
in the psychiatric community. Nor was there any evidence that
the results of the application of the 24-factor approach had been
subjected to any testing in order to determine the accuracy and
usefulness of any conclusions that may be reached by using that
approach. I recognize that the lack of this type of qualifying
evidence may have resulted from the failure of the defence to
object, nonetheless, the nature of the evidence being introduced
was such that it was important that the scientific reliability of
the evidence be established.
[40] On this appeal, the Crown did not argue that the evidence
relating to the 24 factors was admissible. Rather, the Crown
submitted that Dr. Voysey’s disclaimers were sufficient to
neutralize any prejudice arising from the admission of this
evidence.
[41] I do not accept this submission for two reasons. First, the
disclaimers were not directed at the mischief to which the rule
against oath-helping is directed. There was nothing in the
disclaimers to water down the message that Dr. Voysey believed
the complainant was truthful in making the allegations against
the appellant. Second, there was a serious danger that the sheer
bulk and the nature of the inadmissible evidence would swamp the
disclaimers in the consideration of the jury.
[42] The decision of the British Columbia Court of Appeal in R.
v. Jmieff (1994), 1994 8750 (BC CA), 94 C.C.C. (3d) 157, is instructive. The expert
evidence in Jmieff had similarities to that of Dr. Voysey.
There, the doctor testified that he could apply an approach he
called “statement validity analysis”, whereby 19 separate
features of a statement are analysed to differentiate between
actual experiences and invented ones. The doctor said that the
complainant had been quite consistent in describing the events
and expressed the view that the complainant’s statement had the
features of a credible memory. Like Dr. Voysey, the doctor in
Jmieff made a disclaimer. He said he was not implying that the
complainant’s evidence was true. However, McEachern C.J.B.C.,
for the court, concluded that the doctor’s evidence (taken as a
whole) belied that statement. He reasoned that the doctor had
given an opinion going directly to credibility and, for that
reason, the evidence was inadmissible.
[43] In the same way, I conclude that the disclaimers in this
case were insufficient to redress the unfair prejudice to the
appellant arising from the inadmissible evidence. Accordingly, I
am of the view that that part of Dr. Voysey’s evidence that
communicated the oath-helping message ought not to have been
admitted.
(b) Charge to the jury
[44] Accepting for the purpose of discussion that the evidence of
Dr. Voysey was properly admitted, it was essential that the trial
judge instruct the jury on both the permissible and the
impermissible use of that evidence. With respect, the trial
judge’s charge did neither. The jury should have been told that
Dr. Voysey’s evidence could be used as part of the narrative, as
an explanation for the delayed disclosure, and possibly to show
that the complainant’s condition was consistent with a person who
had suffered abuse. However, it was essential that the jury be
specifically instructed that that evidence was not to be used for
the purpose of bolstering the complainant’s credibility; that
is, to show that it was more likely she was telling the truth
because Dr. Voysey may have believed her allegations.
[45] A trial judge is obliged to instruct a jury on the limited
use that may be made of evidence that is admitted for one purpose
but which is unfairly prejudicial to an accused in relation to
another. See, for example, R. v. B.(F.F.), supra, at 138.
[46] In Burns, supra, the Court considered it necessary for the
trial judge to instruct himself not to use the impugned evidence
for the impermissible purpose of bolstering the complainant’s
credibility. Although the trial judge did not expressly say that
he was not using the evidence for an oath-helping purpose, the
Court was satisfied that he knew the law, that he had been
alerted to the impermissible use of the evidence, and that he had
not used it for that purpose.
[47] In this case, in addressing the use of the expert evidence,
the trial judge gave a general jury instruction that expert
opinions are only of value if the jury finds that the underlying
facts are established, and that it is for the jury to decide what
those facts are.
[48] When the trial judge turned to the specific expert evidence
of Dr. Voysey she began by saying:
Now in assessing [the complainant’s] credibility
there is the evidence of Dr. Voysey, her treating
psychiatrist, and the evidence of Dr. Long, the
psychologist.
[49] The trial judge referred to Dr. Voysey’s disclaimer that it
was “not his job to determine the truth or otherwise of what [the
complainant] told him” and that “he didn’t attempt to do so.”
She then reviewed, in some detail, a number of the factors on the
list of recommended factors “to be taken into account in the
assessment of sexual abuse victims,” and commented that Dr.
Voysey felt the complainant showed a number of these factors.
[50] The trial judge went on to summarize Dr. Voysey’s evidence
that he had discussed the complainant’s allegation of sexual
abuse with her and that he found “a high degree of internal
consistency, high enough for him to be considered (sic) in his
diagnosis in that he does not find she was out of touch with
reality.” The trial judge then repeated Dr. Voysey’s disclaimer
on cross-examination that a psychiatrist cannot tell if a person
has been sexually abused.
[51] Finally, after dealing with the cross-examination of Dr.
Voysey on the “flashback issue”, the trial judge concluded her
review of Dr. Voysey’s evidence by saying that Dr. Voysey was
“treating” the complainant “as a person who had been sexually
abused.” She instructed that Dr. Voysey, in coming to his
diagnosis, relied on what the complainant told him, and that “if
what she told him was not correct, then his diagnosis would not
be correct.”
[52] In my view, there are a number of difficulties with this
review. The only reference to the use to be made of Dr. Voysey’s
evidence was the trial judge’s opening remark that it could be
used in assessing the credibility of the complainant. This
comment exacerbates the problem in that it suggests that the jury
could use the doctor’s opinion that the complainant was truthful
to bolster her credibility.
[53] Moreover, the reference to the 24-point list, and to the
doctor’s opinion that the complainant’s allegations of sexual
abuse were internally consistent, invites the jury to use the
evidence in an oath-helping manner.
[54] The trial judge’s references to Dr. Voysey’s disclaimers,
without more, fell well short of what was necessary to caution
the jury not to use the Dr. Voysey’s opinion in an impermissible
manner in relation to the complainant’s credibility. It was
essential that the trial judge clearly and unequivocally instruct
the jury on this impermissible use. As I pointed out above, the
disclaimers do not address the crux of the problem. They do not
disclaim Dr. Voysey’s opinion that he believed the complainant.
[55] The complainant’s credibility was the central issue in this
trial. In my view, there is a serious likelihood that the jury,
confronted with the conflicting evidence of the complainant and
the appellant, looked to Dr. Voysey’s opinion regarding the
truthfulness of the complainant to resolve the issue. I am
satisfied that, once the evidence that contained the oath-helping
message was admitted, the trial judge’s failure to charge the
jury in the manner I have set out constitutes a misdirection that
necessitates a new trial.
DISPOSITION
[56] For the above reasons, I would allow the appeal, set aside
the convictions and order a new trial.
Released: JUN 01 2000 “JL”
“Dennis O’Connor J.A.”
“I agree John Laskin J.A.”
SHARPE J.A. (Dissenting):
[57] I respectfully disagree with the conclusion reached by my
colleagues. I would dismiss the appeal for the following
reasons.
FACTS
[58] After a four-week trial, the appellant was convicted of
gross indecency, intercourse with a female under the age of
fourteen, sexual interference, and sexual exploitation. The jury
was directed to acquit on three counts of invitation to sexual
touching and a guilty verdict on one count of sexual assault was
stayed by the trial judge pursuant to R. v. Kienapple, [1975] 1
S.C.R. 729. The appellant was sentenced to a total of 8 years
imprisonment. He appeals both the convictions and sentence
imposed.
[59] The complainant alleged that the appellant had sexually
assault her on hundreds of occasions from the time she was ten
years old until she reached the age of sixteen. The theory of
the Crown was that the appellant had told the complainant’s
mother that the child was born with a curse and that she would
die by the age of sixteen unless he used his psychic powers to
cure her. The appellant and the complainant’s mother were both
adherents to a South American religion that includes a belief in
curses. The evidence led at trial by the Crown was to the effect
that the appellant had abused the trust and influence he gained
with respect to the complainant to gratify his sexual desires.
The complainant did not come forth with her allegations for some
time. The appellant testified and denied that he had sexually
interfered with the complainant.
[60] The crown called as a witness Dr. Mark Voysey, a
psychiatrist who had treated the complainant for two and a half
years. Dr. Voysey was qualified to testify as an expert in
adolescent psychology and childhood sexual abuse. During his
testimony, a document entitled “Recommended Factors to be Taken
in to Account in the Assessment of Sexual Victim Trauma Severity”
was shown to the jury as a demonstrative aid. This three-page
document was based upon studies of other victims of sexual
assault. It listed twenty-four factors that could be used as a
check-list to measure the severity of trauma in sexual assault
victims. Among the items listed were “interpersonal relationship
problems”, “sexual dysfunction”, “substance abuse” and “self
abusive and self destructive behaviours”. Although the document
was not entered as an exhibit, it was used by Dr. Voysey to
explain the symptoms of trauma demonstrated by the complainant.
At the conclusion of this portion of his evidence, Dr. Voysey
indicated that the complainant exhibited twenty of the twenty-
four factors listed. No objection was made to the use of the
check-list, and although it was not made an exhibit, the
appellants’ trial counsel asked that it be left with the jury for
the purposes of his cross-examination.
ANALYSIS
[61] It is submitted by the appellant that the purpose of the
check-list was never adequately explained to the jury and that it
was irrelevant to the issues to be addressed by the jury. The
appellant contends that there is a significant risk that the jury
would have interpreted the check list as a diagnostic tool to
determine whether sexual assault had occurred. It is submitted
that the tenor of Dr. Voysey’s evidence, read in conjunction with
the check-list, would lead the jury to believe that as the
complainant exhibited twenty of the twenty-four factors, it was
more likely that her allegations were true. Reliance is placed
on R. v. K. (A) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641 (C.A.) at 681 where
Charron J.A. said of similar evidence:
The evidence is not and cannot be presented to
show that the complainant is more likely to have
been abused because she has not disclosed the
abuse in a timely fashion or because she has
exhibited some other forms of behaviour. Such a
proposition would be untenable. It would turn
features such as delayed disclosure, faulty
memory, inconsistent versions and the like into
hallmarks of truth.
[62] In order to assess the impact of the use of the check-list,
it is necessary to place Dr. Voysey’s evidence in context. The
complainant did not immediately disclose her allegations of
sexual abuse. Her recollections of those disclosures were based
on “flashbacks”. The complainant had experienced significant
difficulties in her life and she exhibited aberrant behaviour
following the alleged abuse, including significant drug abuse.
The appellant used these matters to attack the complainant’s
credibility.
[63] Dr. Voysey was the complainant’s treating psychiatrist. It
was during the time she was under his treatment that she
experienced “flashbacks” and made her allegations against the
appellant. Dr. Voysey’s evidence included an explanation of his
diagnosis and treatment of the complainant and the phenomenon of
flashbacks, as well as his assessment of the symptoms of trauma
exhibited by the complainant.
[64] It is clear from R. v. K. (A), supra and R v. F. (D.S.)
(1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 that to the extent the appellant relied
on matters such as late disclosure and aberrant behaviour as
undermining the complainant’s credibility, it was open to the
Crown to rebut that evidence by showing that that very behaviour
could well have been the product of the alleged sexual abuse. It
is important, therefore, to distinguish between the use of expert
evidence for two purposes. First is evidence to explain that
matters that might otherwise be thought to undermine the
complainant’s credibility may themselves be the product of abuse.
Second is evidence that suggests that post-abuse behaviour
amounts to affirmative proof of sexual abuse. The first is
admissible but the second is not.
[65] The issue, accordingly, is whether Dr. Voysey’s evidence,
and in particular the twenty four point, check-list he used as a
demonstrative aid, was appropriately confined to the first
category, or whether it created an unacceptable risk that the
jury was invited to conclude that they should accept the
complainant’s evidence because she exhibited the signs of post-
abuse trauma.
[66] In my view, on a fair reading of the record and the trial
judge’s instruction to the jury, that unacceptable risk is not
made out. In the first place, throughout his evidence, Dr.
Voysey made it clear that he could not say whether the
complainant’s allegations of sexual abuse were true or false. At
the outset of his evidence he explained:
My job is not to determine the truth or
otherwise of a possible criminal situation.
I think that’s the task of the fact finders
and the police. My task is to help the
patient deal with the reality they find
themselves in….
He reiterated at various points during his examination-in-chief
that he had made no effort to look for extrinsic evidence of
sexual abuse, nor had he taken any steps to verify the
complainant’s allegations of sexual abuse. Dealing specifically
with the check-list, Dr. Voysey repeated that he was not an
investigator of the facts and that he had to depend on what the
complainant told him. He used the check-list only to assess the
severity of the trauma and he insisted that he expressed no view
as to the cause of the trauma. On cross-examination, he
emphasised that as a psychiatrist he was not in a position to
determine whether or not abuse had occurred:
A. There’s no sexual abuse syndrome.
There is nothing I could find as a
psychiatrist that would find evidence
of sexual abuse.
Q. Is [sic] there any indicators you
could point to that would show the
person probably hasn’t been abused?
A. That’s the problem. We don’t know.
We can’t affirm it and we can’t deny it,
that I am aware of. No forensic
psychiatric evidence that can answer the
factfinders yes or no.
He also agreed that many of the post traumatic stress disorder
symptoms exhibited by the complainant were frequently displayed
by non-abused children.
[67] In her charge to the jury, the trial judge reiterated the
point that Dr. Voysey did not purport to verify the complainant’s
allegations. In reviewing Dr. Voysey’s evidence, she stated as
follows:
Dr. Voysey testified that it is not his job to
determine the truth or otherwise of what she [the
complainant] told him and he did not attempt to
do so. He diagnosed [the complainant] with a
major depression and having borderline personality
disorder traits, attention deficit, hyperactivity
disorder and post traumatic stress disorder.
The trial judge went on the review Dr. Voysey’s evidence of the
factors exhibited by the complainant from the check-list and
concluded as follows:
On cross-examination Dr. Voysey testified that a
psychiatrist cannot tell if a person has been
sexually abused. They have syndromes after, post
traumatic stress disorder, depression, suicidality,
personality disturbances, drug abuse, damage to
life.
[68] The trial judge also reminded the jury that Dr. Voysey was
entirely dependent upon the facts as related by the complainant.
Now Dr. Voysey is treating [the complainant] as a
person who has been sexually abused, but in coming
to that diagnosis he relied on what she told him
and if what she told him wasn’t correct, then his
diagnosis wouldn’t be correct.
[69] On behalf of the respondent, Ms. Pomerance fairly conceded
that if the twenty-four point check list were taken in isolation,
it would clearly be the cause for concern as it might well be
taken to suggest that the symptoms of trauma support the truth of
the allegations of sexual abuse. The check-list was not, in my
view, probative of the issues and for that reason, it should not
have been used as a demonstrative aid. However, I accept Ms.
Pomerance’s submission that the check-list cannot be viewed in
isolation but rather must be read in conjunction with the
evidence that Dr. Voysey gave and with the trial judge’s
instructions to the jury. Dr. Voysey was clear in his evidence
that he did not use the check-list as a diagnostic tool to
determine whether the complainant had been sexually abused.
Indeed, he completely disclaimed any capacity to make such a
diagnosis in his role as a psychiatrist. This point was
reiterated to the jury by the trial judge in her charge. In my
view, to accept the appellant’s submission would be to accept
that the jury misunderstood the evidence of Dr. Voysey and
disregarded the direction of the trial judge.
[70] The trial judge made specific reference to Dr. Voysey’s
evidence as bearing upon the complainant’s credibility. In my
view, this is not fatal. As I have already noted, R. v. K. (A),
supra clearly allows the Crown to meet an attack on a
complainant’s credibility with evidence to explain what might
otherwise seem to be indicators of unreliability. With the
benefit of hindsight and this court’s decisions in R. v. K. (A),
supra, and R. v. F. (D.S.), supra, both handed down long after
the trial in this matter, the distinction between rebutting an
attack on credibility and “oath-helping” could have been made
more clearly. However, the trial judge did warn the jury that it
was not Dr. Voysey’s job to determine the truth of what the
complainant said, and that he did not purport to do so. Reading
the charge as a whole, I am not persuaded that reversible error
has been demonstrated.
SENTENCE APPEAL
[71] The appellant also appeals his sentence of eight years. In
my view, there is no merit in the sentence appeal. In her
reasons for sentence, the trial judge pointed out that this was a
case of protracted abuse in which the appellant had effectively
terrorised the complainant and her mother through exploitative
distortion of their religious and spiritual beliefs. The
appellant preyed on the vulnerability of the complainant and
subjected her to a form of mental torture. The complainant had
suffered significant trauma as had her mother. While the
sentence was clearly at the high end of the range, in these
circumstances, I am not persuaded that it was demonstrably unfit.
CONCLUSION
[72] Accordingly, I would dismiss the appeal against conviction.
I would grant leave to appeal sentence but I would dismiss the
sentence appeal.
“Robert J. Sharpe J.A.”