DATE:20020521 DOCKET: C36169

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) -and- SHAWN FARRELL (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Jodi C. Whyte, for the appellant

Philip Perlmutter, for the respondent

HEARD:

May 9, 2002

RELEASED ORALLY:

May 9, 2002

On appeal from the conviction imposed by Justice Roydon Kealey dated December 17, 1999.

E N D O R S E M E N T

[1] [1] The principal grounds of appeal concern the admissibility of evidence. No objection was taken at trial by defence counsel (who was not Ms. Whyte) to the admissibility of any of this evidence.

[2] [2] With respect to the evidence of Dr. DeJegar and Father Byrne, we are satisfied that this evidence was admissible given the nature of the attack on the complainant’s testimony. The thrust of the defence was that the complainant, although having many opportunities to complain or seek medical advice or attention, did neither. In these circumstances, the complainant’s demeanour and conduct at the time were relevant and admissible. It may well be that defence counsel’s failure to object was a tactic, since the impugned evidence also tended to support the defence theory.

[1] [3] With respect to Dr. Jaffe, not only was there no objection, but the defence seems to have agreed to the admission of this evidence. On this record, the evidence was not inadmissible. Unlike R. v. F. (D.S.) (1999), 1999 3704 (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.), Dr. Jaffe testified about recognized psychological conditions. Dr. Jaffe did not testify that the complainant was in fact abused. We do not agree that Dr. Jaffe was not entitled to give the opinion that, based on his testing, the complainant suffered from the recognized condition of post-traumatic stress disorder. This type of evidence has been found to be admissible, see R. v. F. (D.S.), supra, at 112 and R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656 at 668. On this record, we cannot say that the prejudicial effect of the evidence outweighed its probative value. The trial judge’s directions on the use of expert evidence were clear, and the trial judge gave an explicit warning about the limited use of Dr. Jaffe’s evidence.

[2] [4] The charge to the jury on credibility was sufficient in the circumstances. The trial judge made extensive reference to the frailties in the complainant’s evidence. The jury could not have been in any doubt that the doctrine of reasonable doubt applied to credibility.

[3] [5] Accordingly, the appeal is dismissed.

“Rosenberg J.A.”

“Moldaver J.A.”

“Simmons J.A.”