CITATION: R. v. Smith, 2007 ONCA 260

DATE: 20070412

DOCKET: C44122

COURT OF APPEAL FOR ONTARIO

MacPHERSON, CRONK and GILLESE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

(Respondent)

and

IAN SMITH

(Appellant)

Louise Botham, for the appellant

Jeanette Gevikoglu, for the respondent

Heard and released orally: April 10, 2007

On appeal from the convictions entered by Justice John F. Hamilton of the Superior Court of Justice, sitting with a jury, on May 8, 2003.

ENDORSEMENT

[1] The appellant appeals against conviction on four grounds. First, he argues that the opinion evidence proffered by the Crown from an expert on domestic abuse was inadmissible because it failed to meet the criterion of necessity outlined in R. v. Mohan, [1994] 2 S.C.R. 9 and its prejudicial effect outweighed its probative value.

[2] Second, the appellant claims that the trial judge’s instructions to the jury on the limited permissible use of this expert’s evidence were flawed.

[3] Third, the appellant says that the trial judge’s charge to the jury on the complainant’s prior inconsistent statements and on her two allegedly prior consistent statements was deficient.

[4] Finally, the appellant asserts that the trial judge erred by declining to grant a mistrial when the jury was accidentally provided with a copy of a handwritten note on an exhibit that was not part of the evidence at trial, the contents of which the appellant claims were both inflammatory and highly prejudicial.

[5] We would reject these submissions.

I. Admission of Expert Evidence

[6] The witness in question was qualified as an expert in domestic violence “in order to give opinion evidence about the tendency of victims of domestic violence to maintain contact with [their alleged abuser] and to recant during the trial process”. Evidence of this type was information outside the experience and knowledge of the jury. At its core, it was evidence of some of the behaviours of victims of domestic abuse who suffer from a pattern of prolonged abuse. This was not evidence that could be given by the complainant. Moreover, it was open to the trial judge to conclude that this was not information within the common purview of a jury’s knowledge. The trial judge ultimately concluded that the evidence was both relevant and necessary. We see no error with this conclusion.

II. Instructions Concerning Expert Evidence

[7] Nor do we accept that the trial judge erred in his instructions to the jury on the limited permissible use of this opinion evidence. In both a mid-trial instruction and in a four-page final instruction to the jury, the trial judge clearly directed the jury that it was free to accept all, none or part of the expert’s evidence but that if it did accept the expert’s evidence, the evidence could not be used as proof that the allegations against the appellant were true. Although the trial judge told the jury that the expert’s evidence would be helpful so that the jury would not draw “adverse inferences” based on stereotypical reasoning, the trial judge also cautioned the jury: that “you cannot use the expert’s testimony to confirm that the violence happened in this case because the conduct of the complainant fit the so-called pattern such as recantation and continued contact”; that the opinion of the expert was not binding on the jury; and that it was for the jury to decide the facts. Viewed in their entirety, these instructions were adequate.

III. Instructions Regarding Prior Inconsistent and Consistent Statements

[8] In relation to the prior inconsistent statements, the appellant argues that the charge was inadequate because it failed to adequately detail the inconsistencies and to point out that the prior inconsistent statements were made while the complainant was under oath.

[9] We disagree. The charge made clear the circumstances under which the prior inconsistent statements had been made. Those circumstances included the complainant lying in her testimony at the bail hearing, at the preliminary inquiry, and in her sworn affidavit. There can be no doubt that the jury understood that the prior inconsistent statements were made while the complainant was under oath.

[10] In relation to the amount of detail given, we note that a trial judge need not review individually each prior inconsistent statement.

[11] In our view, the charge adequately and fairly instructed the jury on the complainant’s prior inconsistent statements and the use that could properly be made of them.

[12] We also do not think that the trial judge erred by not giving a limiting instruction with respect to the complainant’s prior consistent statements to the police and her doctor relating to being choked by the appellant. These statements were not offered by the Crown as proof of the underlying facts. See R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.) at para. 22.

IV. Failure to Declare a Mistrial

[13] The trial judge directed the jury that the handwritten note on the exhibit in issue formed no part of the evidence. Moreover, he twice told the jurors, in blunt terms, that they were to disabuse their minds of this writing. It is difficult to imagine a clearer caution. It was more than sufficient to meet the possible prejudice to the appellant occasioned by the provision of the handwritten note to the jury. As a result, we see no basis to interfere with the discretionary decision of the trial judge to deny a mistrial.

V. Disposition

[14] In the result, the appeal against conviction is dismissed.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”