WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.C., 2014 ONCA 611

DATE: 20140827

DOCKET: C55380

Strathy C.J.O., Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.C.

Appellant

Marie Henein and Matthew Gourlay, for the appellant

Benita Wassenaar and Jennifer Mannen, for the respondent

Heard: June 25, 2014

On appeal from the convictions entered on March 1, 2012 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting without a jury.

Watt J.A.:

[1] About two years after an alleged sexual assault, the complainant collapsed on the floor. He began to scream. He gestured with his hands. He did not respond to his mother. He did not respond to a police officer who had answered a 911 call. The episode lasted about 20 or 30 minutes.

[2] At M.C.’s trial for several sexual and other offences arising out of the original incident, the trial Crown proffered the evidence of a clinical psychologist who linked the complainant’s seizure-like behaviour to the prior sexual assault the complainant alleged M.C. had committed.

[3] Trial counsel for M.C. (not Ms. Henein or Mr. Gourlay) objected to the admissibility of the evidence of the clinical psychologist. The objection failed. The trial judge admitted the evidence, found it most compelling and important independent corroboration of the complainant’s allegations, and found M.C. guilty of all the offences with which he was charged.

[4] M.C. renews his objection to the admissibility of this evidence. This time, his objection prevails. These reasons explain why.

THE BACKGROUND FACTS

[5] A brief reference to the underlying allegations and their journey to trial provides a suitable frame for discussion of the admissibility issue raised here.

The Setting

[6] M.C. and the complainant are related, members of a large family who get together frequently at social gatherings. One of those gatherings occurred in the summer of 2007. Both M.C. and the complainant[^1] were guests at a relative’s home.

The Allegations

[7] The complainant said that he entered a second floor bathroom and closed, but did not lock the door behind him. While he was seated on the toilet, M.C. opened the bathroom door. The complainant said “someone’s in here”. M.C. walked into the bathroom, closed the door behind him, and locked it.

[8] The complainant was worried. He began to scream. M.C. put a towel in his mouth. The complainant stood up. His pants were around his ankles. M.C. pushed the complainant against the bathroom wall, fondled the complainant’s penis and squeezed his scrotum.

[9] As time passed, the complainant added further details to his initial account. He alleged that M.C. turned him to face the wall, pulled down his pants, inserted his penis in the complainant’s anus and moved his penis in and out of the complainant’s anus. This anal penetration was very painful for the complainant.

[10] The complainant heard a noise on the stairs. M.C. pulled his penis out of the complainant’s anus, pulled up his pants and washed his hands. M.C. told the complainant that if he (the complainant) said anything to anybody about what had happened in the bathroom, he (the complainant) would be in trouble and M.C. would kill the complainant and his family.

[11] After M.C. left the bathroom, an adult relative of the complainant entered and asked whether everything was alright. The complainant did not tell the relative that anything was wrong.

The Consequences

[12] The complainant alleged that he suffered rectal bleeding after the incident in the bathroom.

[13] The complainant was prone to unprovoked outbursts of anger during his childhood. Several witnesses testified about these episodes, providing different versions about when they commenced and their intensity. The complainant’s mother testified that the outbursts intensified after the alleged sexual assault and included the complainant punching holes in the wall and attacking her. Other relatives said that the complainant had been given to such conduct since he was a toddler.

The First Disclosure

[14] The complainant said nothing to anybody about the bathroom incident until several months later during the winter of 2008. The complainant was living with his mother after his parents had separated in 2006. The initial disclosure made no reference to anal intercourse or any threats to the complainant about the consequences of disclosure.

[15] The complainant’s mother reported the disclosure to child welfare authorities and to the police, but no charges were laid. The complainant was enrolled in counselling.

The Second Disclosure

[16] About a year later, shortly after his therapy had ceased, the complainant became quite insistent about telling his mother more about the incident with M.C. Despite his mother’s advice to tell his therapist about what had happened, the complainant told his mother that M.C. “put his penis in my bum and that’s all”.

[17] The complainant repeated this disclosure to his therapist who provided the information to the CAS the following day. After the therapy session, the complainant told his mother that M.C. threatened to kill the complainant and his mother. He had not told his mother about the threats earlier because he took them seriously and was scared.

The Second Police Statement

[18] About a month after the disclosure to his therapist, the complainant provided a statement to the police. He described the bathroom incident including anal intercourse and the threats M.C. made as he left the bathroom.

[19] Police arrested M.C. the next day.

The Seizure-like Episode

[20] Within a day of the complainant’s second police interview, he told his mother that he wanted to talk to her about what had happened to him. His mother tried to deflect his request because she was mindful of the admonition police had given her not to discuss the incident with her son. The complainant became frustrated. He told his mother that he just wanted to tell her “how much it hurt”.

[21] A couple of hours later the complainant and his mother were at another relative’s home. The complainant got up to get a toy. Suddenly, he screamed and collapsed to the floor. His body convulsed. His eyes rolled back. He had difficulty breathing. His mother called 911. A police officer responded to the call.

[22] The seizure-like episode continued for 20 to 30 minutes. The complainant screamed. He did not respond either to his mother or to the police officer. He held his penis. He held his bum. He said “he’s going to kill me”. He moaned. His breathing was laboured. He rolled around on the floor.

[23] When the telephone rang in the house, the complainant panicked. He moved towards the wall. He identified the caller as “uncle”, but did not refer to him by name. The complainant was taken by ambulance to the Hospital for Sick Children. There, the complainant asked his mother why they had gone to the hospital.

The Expert Evidence

[24] At trial, Crown counsel (not Ms. Wassenaar or Ms. Mannen) called a clinical psychologist, Dr. David Wolfe, to give evidence about:

i. delayed, incremental and inconsistent disclosure by victims of child sexual abuse; and

ii. symptoms of non-epileptic seizures (NES), Post-traumatic Stress Disorder (PTSD) and their relation to the seizure-like episode involving the complainant on April 25, 2009.

[25] Trial counsel for the appellant objected to the admissibility of the evidence about delayed, incremental and inconsistent disclosure on the ground that it did not satisfy the necessity requirement for expert evidence. Counsel contended further that the witness was not qualified to give an opinion about NES, PTSD and their relation to the seizure-like episode.

[26] The trial judge permitted Dr. Wolfe to give evidence on:

• delayed, incremental and inconsistent disclosure as it relates to child victims of sexual abuse and the variations, combinations and changes involving disclosure by child victims of sexual abuse and the current literature regarding these behaviour patterns;

• the symptoms he was told were exhibited by the complainant on the evening of his seizure-like event, and compare them to the symptoms of those who suffer non-epileptic seizures and the symptoms associated with post traumatic stress; and

• the research regarding the alleged statistical correlation between child sexual abuse and non-epileptic seizures and post traumatic stress disorder.

[27] The trial judge permitted Dr. Timothy Moore, a cognitive psychologist proffered by trial counsel for the appellant, to give evidence on the same issues as Dr. Wolfe.

THE GROUNDS OF APPEAL

[28] The appellant advances four grounds of appeal. The first two, which are related, are the principal grounds. They have to do with the admissibility and the trial judge’s use of evidence about the seizure-like episode, and of Dr. Wolfe’s opinion about the link between that episode and the sexual assault alleged to have occurred two years earlier. The third ground relates to the propriety of the trial Crown’s cross-examination of the appellant. And the final ground concerns the comparative scrutiny that the trial judge applied to the evidence of the principal witnesses – the complainant and the appellant.

[29] For discussion purposes, I would collapse the grounds of appeal into three and paraphrase them as alleged errors in:

i. admitting and relying upon evidence of the complainant’s utterances during the seizure-like episode, and on Dr. Wolfe’s opinion about the connection between those utterances and the alleged sexual assault as confirmatory of the complainant’s evidence;

ii. permitting the trial Crown to cross-examine the appellant about the possible motive of complainant to lie; and

iii. applying a more rigorous standard of scrutiny to the testimony of the appellant than to that of the complainant.

Ground #1: Admissibility and Use of Evidence about the NES Episode

[30] This ground of appeal is concerned with both the admissibility and the use of two aspects of the evidence about the NES episode:

i. the utterances made by the complainant during the episode; and

ii. the opinion of Dr. Wolfe concerning the nature of the episode and its relationship to the alleged sexual assault of the complainant by the appellant two years earlier.

[31] To situate the appellant’s complaints of error in their proper setting, it is helpful to recall what the trial judge said about the admissibility of the evidence as well as the use she made of it in concluding that the Crown had proven the appellant’s guilt beyond a reasonable doubt.

The Admissibility Ruling

[32] Trial counsel for the appellant does not appear to have challenged the relevance, materiality or admissibility of the evidence of those who witnessed the complainant’s seizure-like activity and what he said as the event unfolded. Thus, the focus of the trial judge’s ruling was on the admissibility of Dr. Wolfe’s opinions about the symptoms of NES and PTSD and how either could explain the seizure-like episode.

[33] The trial judge took her lead in ruling on the admissibility of Dr. Wolfe’s opinion from the decisions of the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 and of this court in R. v. Abbey, 2009 ONCA 624.

[34] On the necessity of Dr. Wolfe’s evidence about the seizure-like episode, the trial judge concluded:

[58] Finally, Dr. Wolfe is permitted to articulate the symptoms he was told were exhibited by the Complainant on the evening of his seizure-like event, and compare them to the symptoms of those who suffer non-epileptic seizures and the symptoms associated with post traumatic stress. He is also permitted to discuss the research regarding the alleged statistical correlation between child sexual abuse and non-epileptic seizures and post traumatic stress disorder.

[59] Moreover, the examination of the psychological data and case studies referred to in the article D. Sharpe & C. Faye, “Non-epileptic seizures and child sexual abuse: A critical review of the literature” (2006) 26 Clinical Psychology Review 1020.to explain the Complainant’s seizure-like episodes require expert understanding and an ability to analyze and fully understand the underlying data and methodology behind the 34 studies examined.

[35] The trial judge was satisfied that Dr. Wolfe had the expertise necessary to proffer the opinion the trial Crown sought to elicit. The trial judge reasoned:

[60] Defence counsel argued that Dr. Wolfe is not qualified to provide expert evidence, since his testimony was predicated upon one article and not upon clinical research conducted personally. This assumes that Dr. Wolfe must have personal experience in the field of child psychology in order to testify. He does not need personal experience. As stated above, where the court is satisfied that the witness has expertise in the subject matter at issue, the admissibility of expert evidence does not depend on how the expertise was acquired: R. v. N.O., supra. The fact that Dr. Wolfe does not have personal experience is relevant to the weight that I assign to his evidence. I note, however, that the Sharpe and Faye article referred to and relied upon by Dr. Wolfe is a peer reviewed article which enhances its reliability.

[61] Dr. Wolfe is a child psychologist with a specific expertise in trauma and child abuse and can therefore opine on the effect of delayed, incremental and inconsistent disclosure by child victims of trauma including child abuse, and analyze the findings in the key publications he reviewed and considered.

[36] The trial judge conducted the cost-benefit analysis required by Mohan and Abbey. She concluded that the probative value of Dr. Wolfe’s testimony exceeded its prejudicial effect and admitted it as evidence at trial.

The Reasons for Judgment

[37] The trial judge found the complainant’s account of what happened was reliable and credible for several reasons. The complainant’s account of the events was specific and clear, barren of material inconsistencies and untainted by improper influence.

[38] The trial judge also found the complainant’s account of what had happened credible and reliable because his account was corroborated by other evidence adduced at trial. The most important corroborative evidence was the testimony about the seizure-like episode of April 25, 2009. Of that evidence, the trial judge said:

[123] Most importantly, I find that the Complainant’s spontaneous utterance while in a dissociated state of trauma and unaware of what he was saying at the time, confirms important aspects of his allegation of sexual abuse and uttering death threats.

[124] The Complainant’s evidence concerning the incident is consistent with the symptoms of trauma exhibited by him during his seizure on April 25, 2009. He had never suffered a seizure of this type before. The seizure was preceded earlier that day by a request to tell his mother more about how he felt during the incident and her reticence to engage in that conversation.

[125] Officer Shedes testified that during the seizure, the Complainant held his penis and said “He’s going to kill me…it hurts” and when the telephone rang expressed extreme fear panic and yelled, “It’s uncle”. Finally, the incident on April 27, 2009 where the Complainant saw two of the accused’ brothers is corroboration of the link between his disclosure of the threat made by the accused in the summer of 2007, his fear of the accused and the fact that the extreme fear was linked to the accused.

[126] I accept Dr. Wolfe’s opinion that it is harder to embellish the story where disclosure is made in the context of an emotional outburst.

[127] The evidence regarding this traumatic event leads me to believe that the Complainant suffered trauma and that the source of this trauma was the incident with his uncle, the accused. I say this not because he had the seizure but because while he had the seizure and was unaware of what was happening to him, he made statements expressing fear of “uncle”, indicated that someone was going to kill him and held his penis and behind.

[128] For all of these reasons I find the Complainant’s testimony to be both credible and reliable. When viewed in the context of the evidence as a whole, I do not find the accused’s blanket denial that the event took place to be believable nor does his evidence leave me with a reasonable doubt as to his guilt.

The Arguments on Appeal

[39] For the appellant, Ms. Henein contends that the trial judge erred in admitting and relying upon evidence of the complainant’s utterances during the seizure-like episode as “independent corroboration” of the complainant’s allegations.

[40] Ms. Henein says that reception and use of the complainant’s utterances as evidence of the truth of their contents offended both the hearsay rule and the rule that bars the introduction of prior consistent statements of a witness. No effort was made at trial to have the utterances admitted under either a traditional or the principled exception to the hearsay rule. Further, the utterances did not qualify for reception under any recognized exception to the rule relating to prior consistent statements. But even if a diligent search could unearth such an exception, the utterances would not be admissible for the proof of their contents, thus could not be “corroborative” of the complainant’s account.

[41] Ms. Henein submits further that the trial judge erred in admitting and relying upon the opinion evidence of Dr. Wolfe about the value of the utterances and their origins in the alleged conduct that forms the subject-matter of the charge. Critical to the opinion of Dr. Wolfe was that the episode was an NES. But there was no admissible evidence that what occurred was an NES. Dr. Wolfe lacked the expertise to make such a characterization. He was not qualified to proffer any opinion about the nexus between the episode and the antecedent conduct.

[42] For the respondent, Ms. Wassenaar takes the position that the evidence of the complainant’s conduct during the seizure-like episode was relevant and admissible at trial where no objection was taken. The complainant’s utterances were admissible under the narrative exception to the prior consistent statement rule and were available for use as circumstantial evidence that could assist the trial judge in her evaluation of the complainant’s testimony.

[43] Besides, Ms. Wassenaar adds, the utterances of the complainant during the episode were admissible as evidence of the truth of their contents under both the res gestae exception to the hearsay rule, as well as in accordance with the principled approach. It follows that their use as corroboration of the complainant’s allegations was proper.

[44] Ms. Wassenaar resists any claim that the opinion proffered by Dr. Wolfe should have been excluded. Dr. Wolfe was properly qualified to offer an opinion on the issue. His opinion did not extend beyond his expertise. The weight to be assigned to the opinion was for the trial judge to determine. Her assessment of it is subject to deference in this court.

The Governing Principles

[45] Several principles have a say in whether evidence should be received in a criminal case and, if received, how the trier of fact is entitled to use it in reaching their conclusion.

[46] Three fundamental principles determine whether evidence will be received in a criminal trial:

• relevance;

• materiality; and

• admissibility.

[47] The dispute here has to do with admissibility. Neither at trial nor on appeal did counsel for M.C. take issue with the relevance or materiality of the evidence of the witnesses who saw and heard what has been described as the seizure-like episode.

[48] Admissibility is a legal concept, something that the law interposes for various reasons between relevance and materiality, on the one hand, and receivability on the other. Admissibility is not an inherent characteristic of any individual item of evidence, rather is a quality that the law attaches to it when it has satisfied all the auxiliary tests and extrinsic policies of the law of evidence. Evidence that fails to satisfy the requirements of relevance or materiality engages no rule of admissibility, rather is excluded as irrelevant or immaterial, as the case may be.

[49] Among the rules of admissibility, three are at work here. Typical of such rules, each is predominantly exclusionary, negative by nature. Equally typical, each is subject to well-defined and limited exceptions. Our concern is with the rules relating to the admissibility of:

• hearsay;

• prior consistent statements; and

• opinion.

The Hearsay Rule

[50] Like admissibility, hearsay is not an inherent characteristic of an item of evidence: R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at paras. 30 and 36. The defining features of hearsay are two-fold:

i. the statement is adduced to prove the truth of what was said; and

ii. the absence of a contemporaneous opportunity to cross-examine the declarant.

Baldree, at para. 30; and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 56. The touchstone for the admissibility of evidence that is said to be hearsay is the purpose for which the evidence is adduced. Evidence is hearsay – and presumptively inadmissible – if it is offered to prove the truth of its contents: Baldree, at para. 36; and Khelawon, at para. 36.

[51] The typical hearsay situation involves:

• a declarant (who does not testify);

• a recipient (who does testify);

• a statement (that is offered in evidence); and

• a purpose (proof of the truth of the contents of the statement).

[52] The hearsay rule applies equally to out-of-court statements made by a witness who does testify in the proceedings when they are offered as proof of the truth of their contents: Khelawon, at para. 37; R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 763-764; and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 158. The hearsay issue emerges in these cases when the witness does not repeat or adopt the information contained in the out-of-court statement and the proponent tenders the statement for the truth of its contents: Khelawon, at para. 38.

[53] The exclusionary effect of the hearsay rule is not absolute. Hearsay evidence may be admitted under the traditional exceptions, which remain presumptively valid but subject to challenge on the basis of lack of necessity or reliability: Khelawon, at para. 42; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15. Hearsay evidence may also be admitted if the proponent establishes the indicia of necessity and reliability under the principled exception: Khelawon, at para. 42; and Mapara, at para. 15.

[54] When the hearsay rule is summoned as a basis upon which evidence should be excluded, the first inquiry should be whether the proposed evidence is hearsay: Khelawon, at para. 56. The central focus of this inquiry should be on the purpose for which the statement is being adduced. It is only where that purpose is to prove the truth of the contents of the statement that the hearsay rule is engaged and refuge must be sought under a traditional or principled exception for the evidence to be admitted.

[55] A traditional hearsay exception permits the introduction of evidence of spontaneous statements about a declarant’s current physical condition, mental state or sensory impression, as well as excited utterances. Necessity is based on expediency since no other equally satisfactory source for the evidence exists either from the declarant or elsewhere. Reliability is rooted in the spontaneous origin of the statement before there is time for concoction.

[56] Under the principled exception, the necessity requirement may be met where the declarant is unable (or unwilling) to provide a full and frank account of the relevant events, including the ability to recall significant details. The reliability requirement may be satisfied by:

i. compliance with the indicia of B. (K.G.);

ii. the presence of adequate substitutes for testing truth and accuracy (procedural reliability); or

iii. sufficient circumstantial guarantees of reliability or an inherent trustworthiness (substantive reliability).

See, R. v. Youvarajah, 2013 SCC 41, at para. 30.

[57] Where the hearsay rule is engaged, the prior statement is presumptively inadmissible. Whether the exception invoked to justify admission of the hearsay is traditional or principled, the conditions precedent or indicia are established on a voir dire: Mapara, at para. 15.

The Prior Consistent Statement Rules

[58] A second group of rules – the prior consistent statement rules – also has a say in the admissibility of the complainant’s utterances during the seizure-like episode. Like the hearsay rule, these rules are exclusionary, either restricting or prohibiting reception of evidence of declarations made by witnesses prior to trial consistent with their in-court testimony at trial: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.

[59] Prior consistent statements are an amalgam of two elements – a hearsay element and a declaration element: Paciocco, The Perils and Potential of Prior Consistent Statements: Let’s Get it Right (2013), 17 Can. Crim. L. Rev. 181, at p. 184. The hearsay rule takes care of the hearsay element. The prior consistent statement rules generally exclude the declaration element. Their rationale for doing so is that prior consistent statements lack probative value: Stirling, at para. 5.

[60] Like other exclusionary rules, however, the prior consistent statement rules have exceptions. And as with other exclusionary rules, the exceptions to the prior consistent statement rules tend to exist where the purposes that underpin the general exclusionary rule would not be served by excluding the evidence: Paciocco, at p. 187. Typically, the exceptions permit introduction of the prior consistent statement where proof of it is relevant without an inference of credibility enhancement because the witness said the same thing previously: R. v. T. (W.P.) (1993), 1993 CanLII 3427 (ON CA), 83 C.C.C. (3d) 5 (Ont. C.A.), at p. 36.

[61] Where prior consistent statements are admitted by exception, the statements tend to be admissible for limited or restricted purposes. Sometimes, the hearsay part is admitted. Other times, however, the declaration part comes in. At all events, the exceptions are rules of limited or restricted admissibility.

[62] Among the exceptions to the general exclusionary rule for prior consistent statements are statements admitted as:

i. circumstantial evidence;

ii. narrative; and

iii. narrative as circumstantial evidence.

[63] Where prior consistent statements are admitted as circumstantial evidence, the statement is not received as evidence of the truth of its contents, rather only to establish that the statement was made. That the statement was made may afford circumstantial evidence of some fact of importance in the proceeding, as for example the declarant’s state of mind: R. v. Edgar, 2010 ONCA 529, 260 C.C.C. (3d) 1. It is perhaps unnecessary to add that where the basis upon which the prior statement is admitted is that it affords circumstantial evidence of the declarant’s state of mind, that state of mind must itself be relevant in the proceedings: R. v. Mathisen, 2008 ONCA 747, 239 C.C.C. (3d) 63, at para. 104.

[64] Within limits, prior consistent statements that are necessary to unfold the “narrative” of a case and make material events comprehensible may be admitted in evidence. This exception permits proof of how a complaint got before the court, even though how it did is not a material fact that will assist the trier of fact in evaluating the adequacy of the Crown’s proof of guilt, or in determining whether a defence, justification or excuse raises a reasonable doubt. The admission of narrative permits the decision-maker to understand the “chronological cohesion” of the case: R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 85 C.C.C. 457 (Ont. C.A.), at p. 474.

[65] Evidence of prior consistent statements admitted under this exception is not evidence that can be used to prove the truth of what was said. Nor can the prior statements sponsor an inference that makes the case for the party adducing the statement more compelling. The prior statement is admitted to help the trier the fact understand the case as a whole: R. v. R. (A.E.) (2001), 2001 CanLII 11579 (ON CA), 156 C.C.C. (3d) 335 (Ont. C.A.), at para 15.

[66] Sometimes, a prior consistent statement admitted as narrative may be of service to the trier of fact in the assessment of the truthfulness or reliability of the declarant: F. (J.E.), at p. 476; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 39; and R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629, at para. 32.

The Opinion Rule

[67] The law of evidence distinguishes between fact and opinion. The distinction seems more and ultimately one of convenience rather than of objective reality. All sensory data is mediated by our powers of perception, assimilation and expression. But the distinction remains and is expressed in the rule that generally, but not universally, excludes evidence of opinion.

[68] Among the exceptions to the opinion rule are the opinions of experts. Duly qualified experts may testify about subjects that are within their field of expertise, logically relevant to a material issue in the proceedings, and outside the experience and knowledge of the trier of fact: Mohan, at p. 20.

[69] Experts combine information accumulated from their own work and experience, marry it with evidence adduced through exhibits, admissions and the testimony of other witnesses in the proceedings, and express an opinion about a factual inference that should be drawn from the accumulated materials: Abbey, at para. 71. These opinions are evaluated by the trier of fact, like any other evidence admitted in the proceedings, in determining whether the allegations contained in the indictment have been proven beyond a reasonable doubt.

[70] The factual premise or construct to which the expert applies his or her expertise must be established, however, by evidence that is otherwise properly admissible in the proceedings. Mere reliance by the expert on a state of facts as the basis for his or her opinion does not amount to evidence much less proof of those facts. For example, a psychiatrist proffers an opinion about criminal responsibility based on an account of events provided to him or her by an accused. The account relied upon must be established by other admissible evidence: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24, at p. 46 (Abbey ’82); R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 31; and R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 55. Where the factual premise of the expert’s opinion is not established by otherwise admissible evidence, the opinion is entitled to less, in some cases, to no weight: Abbey ’82, at p. 46; and R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 893.

[71] Deciding the admissibility of expert opinion evidence involves two steps. The first requires a determination of whether the conditions precedent to admissibility have been met. The second, only undertaken on satisfaction of the first, consists of a cost-benefit analysis that asks whether the benefits of receiving the evidence to a correct decision exceed the costs to the litigation process of admitting the evidence: Abbey, at para. 76.

[72] The criteria applicable to the first step in the admissibility inquiry are:

i. relevance;

ii. necessity;

iii. absence of an exclusionary rule; and

iv. a properly qualified expert.

Mohan, at p. 20; and Abbey, at paras. 75 and 80.

[73] Among the Mohan criteria, two are of particular importance in this case: the absence of an exclusionary rule, and a properly qualified expert.

[74] The absence of an exclusionary rule refers to an exclusionary rule other than the opinion rule itself: Abbey, at para. 80. For example, expert opinion evidence of an accused’s disposition must not contravene the bad character rule.

[75] Whether a proposed witness is a properly qualified expert about subject-matter that is properly the subject of expert opinion evidence is determined on a voir dire after counsel proffering the evidence has defined the nature and scope of the proposed opinion: Abbey, at paras. 62-63; R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at pp. 242-244; and R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 104. The trial judge’s task extends beyond deciding whether the proposed expert is qualified to proffer an opinion. The judge should also determine the nature and scope of the expert evidence and ensure that the expert’s reach does not exceed his or her grasp or extend beyond boundaries established by the trial judge: Abbey, at para. 62; R. v. Sekhon, 2014 SCC 15, at paras. 46-47; and Marquard, at pp. 242-244.

[76] An expert may refer to and be cross-examined upon authoritative works in the field. But without express adoption of the content by the expert, the opinions expressed in the works cannot become expert evidence for the trier of fact to consider in reaching their decision: Marquard, at p. 251. A review, even an extensive review by an expert of literature in a related field does not, without more, permit the expert to proffer an opinion on a subject outside the area of the expert’s field of expertise: Mathisen, at para. 126.

[77] Evidence that meets the Mohan criteria will not necessarily be received and available for consideration by the trier of fact. At the second stage, the trial judge exercises a “gatekeeper” function. The judge decides whether the expert opinion evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to that same process that may ensue from the introduction of that very evidence: Abbey, at para. 76. It is only where the benefits gained by the introduction of the evidence predominate over the costs associated with its introduction that the evidence will be admitted.

[78] To determine the “benefits” associated with the introduction of expert opinion evidence, the judge considers the probative value of the evidence, the significance of and the issue to which the evidence is relevant. Potential probative value includes an assessment of the reliability of the evidence, not merely of its subject-matter, but also the expert’s methodology, expertise and objectivity: Abbey, at para. 87.

[79] On the “cost” side, the trial judge considers the consumption of time, prejudice and confusion. The trier of fact may not be adequately equipped to effectively and critically assess the evidence. The underlying material may be complex, the witness’ jargon impenetrable, and the evidence resistant to effective cross-examination: Abbey, at para. 90.

The Principles Applied

[80] As I will explain, I would give effect to this ground of appeal. Evidence of the complainant’s utterances during the seizure-like episode was not admissible as evidence of the truth of their contents, and thus could not be relied upon as “independent corroboration” of the complainant’s allegations. And Dr. Wolfe’s opinion about the nature of the seizure-like episode and its origins in the sexual assault alleged by the complainant was beyond the scope of his expertise and otherwise inadmissible for want of proof of essential foundational facts.

[81] Evidence about the seizure-like episode of April 25, 2009 consisted of two parts.

[82] Two witnesses, the complainant’s mother and the police officer who responded to a 911 call, gave evidence about their observations of the incident. They described what the complainant did and what he said during the episode. No objection appears to have been taken to this evidence.

[83] Dr. Wolfe, a clinical psychologist, who had never met or spoken to the complainant, gave evidence about the symptoms of NES, PTSD and their relation to the seizure-like episode. He characterised the episode as symptomatic of NES and the behaviour as causally connected to the alleged sexual assault. Trial counsel for the appellant opposed the admission of Dr. Wolfe’s evidence in its entirety.[^2]

[84] The appellant’s objections on appeal extend both to the admissibility of the evidence about the seizure-like episode and to its use by the trial judge in finding the Crown’s case against the appellant proven beyond a reasonable doubt.

[85] The admissibility of the evidence about the seizure-like episode, both the accounts of the eyewitnesses and the opinion of Dr. Wolfe about its nature and relationship to the prior allegations, is the fundamental issue we are required to decide. A trier of fact, whether a judge or jury, is disentitled to rely on inadmissible evidence in reaching a conclusion about guilt.

[86] In the absence of any objection to the relevance or materiality of the witnesses’ accounts of the seizure-like episode, it is helpful to begin with a consideration of the admissibility of the utterances of the complainant during the episode. When considered together with the complainant’s gestures at the time, the evidence appears to amount to at least an implied assertion of the sexual assault the complainant alleged the appellant committed nearly two years earlier.

[87] Two admissibility rules confront the utterances made by the complainant during the seizure-like episode.

[88] When the dots are connected, the complainant’s words, coupled with his actions during the seizure-like episode, amount to a statement consistent with his testimony at trial that the appellant, whom he described as “uncle” but not by name, had sexually assaulted him in a particular way.

[89] As a prior consistent statement, the complainant’s utterances during the seizure-like episode were inadmissible unless they fell within an exception to the exclusionary rule: Stirling, at para. 5.

[90] The only relevant exception under which the complainant’s utterances can gain admission is the narrative exception – to explain how the complaint got into the court system and afford some chronological cohesion to the story: F. (J.E.), at para. 42.

[91] To be admissible under the narrative exception, however, a prior consistent statement must be truly essential in unfolding the narrative of how the allegations got before the courts: R. (A.E.), at para. 15; and F. (J.E.), at para. 33. The utterances made during the seizure-like episode are not truly essential to the unfolding of the narrative. The episode occurred after the complainant had made his second police statement and after the appellant had been charged with the offences for which he was being tried.

[92] Further, even if the utterances during the seizure-like episode were admissible under the narrative exception to the prior consistent statement rule, admission on this basis neither proves the truth of what was said, nor furnishes a basis for any inference that the case for their truth is more compelling. Narrative enters merely to aid in understanding the case as a whole: R. (A.E.), at para. 15.

[93] The hearsay rule extends its exclusionary reach to implied assertions and requires them to shelter under a traditional or the principled exception to the rule if they are to be received at trial: Baldree, at paras. 48 and 78.

[94] The record reveals no application by the trial Crown to have the assertions implied in the complainant’s utterances received as evidence of the truth of the facts they imply. Thus the trial record yields no basis upon which we could conclude that the factual predicate necessary to engage a traditional or the principled exception to the hearsay rule has been established on the balance of probabilities.

[95] In the traditional exception relating to spontaneous statements, reliability is established by the spontaneous nature of the statement and the absence of any time for concoction. Necessity is based on expediency: the absence of any other equally satisfactory source of evidence from the declarant or elsewhere. But the statements admitted under this collection of exceptions refer to a then-existing state of physical or mental condition, not as here, one about an event that allegedly had occurred two years earlier.

[96] For similar reasons, the utterances lack sufficient threshold reliability to justify their reception under the principled exception to the hearsay rule.

[97] In the result, even if the utterances portion of the seizure-like episode was properly admitted under the narrative exception to the prior consistent statement rule, the utterances were not admissible to prove the truth of their contents, the purpose for which the trial judge used them to “corroborate” the complainant’s account.

[98] The opinion evidence of Dr. Wolfe should have not been admitted essentially for two reasons.

[99] First, Dr. Wolfe, a clinical psychologist with neither practical nor academic expertise in NES episodes, proffered an opinion beyond the scope of his expertise.

[100] Dr. Wolfe read an article, one survey article that critically reviewed existing literature on non-epileptic seizures and child sexual abuse. The article concluded that it was premature to draw any definitive conclusions regarding the relationship between child sexual abuse and non-epileptic seizures in adulthood. A review of a single survey article did not qualify Dr. Wolfe to give an expert opinion outside the field of his expertise: Mathisen, at para. 126.

[101] Second, critical to Dr. Wolfe’s opinion were several foundational facts:

i. that the episode, was in fact, a non-epileptic seizure;

ii. that the assertions implied in the utterances were true; and

iii. that utterances made during such episodes are reliable.

There was no admissible evidence of any of these foundational facts. In the absence of this evidence, the opinion of Dr. Wolfe should not have been admitted.

CONCLUSION

[102] The trial judge admitted and relied upon evidence that should not have been received. This evidence was critical to her acceptance of the testimony of the complainant. Without this evidence, I cannot say that the trial judge’s conclusion would necessarily have been the same.

[103] My conclusion on this ground of appeal renders it unnecessary to consider the other grounds advanced on the appellant’s behalf.

[104] I would allow the appeal, set aside the convictions and order a new trial.

Released: August 27, 2014 (DW)

“David Watt J.A.”

“I agree G.R. Strathy C.J.O.”

“I agree C.W. Hourigan J.A.”

[^1]: The complainant was seven years old when the relevant events allegedly occurred. He was 12 years old when he testified outside the courtroom at trial on a promise to tell the truth.

[^2]: Dr. Wolfe also gave evidence about delayed, incremental and inconsistent disclosure by victims of child sexual abuse. This portion of his opinion was challenged as unnecessary. The challenge to his opinion about NES was based on his lack of qualifications to proffer the opinion.