Court of Appeal for Ontario

Date: July 28, 2017

Docket: C61503

Justices: Doherty, Rouleau and Pepall JJ.A.

Between

Her Majesty the Queen Appellant

and

Haiden Suarez-Noa Respondent

Counsel:

John Patton and Philippe G. Cowle, for the appellant

Heather Pringle and Charn Gill, for the respondent

Heard: June 14, 2017

On appeal from the acquittal on a charge of second degree murder, and the conviction for the included offence of manslaughter, entered by Justice Robert B. Reid, of the Superior Court of Justice, sitting with a jury, on November 27, 2015.

Doherty J.A.:

I

[1] The respondent, Mr. Suarez-Noa, stabbed and killed Ms. Tanya Cowell. He was charged with second degree murder. At trial, Mr. Suarez-Noa admitted to killing Ms. Cowell, but claimed that he did not have the intent required for murder, or alternatively that he acted under provocation. The jury returned a verdict of not guilty of second degree murder, but guilty of manslaughter. The trial judge imposed an effective sentence of 11 years.

[2] The Crown appeals from the acquittal, advancing two grounds:

• Did the trial judge err in law in leaving the defence of provocation with the jury?
• Did the trial judge err in law in admitting the expert evidence of Dr. Gojer, or alternatively if the expert evidence was admissible, did Dr. Gojer go beyond the proper limits of that evidence in his testimony?

[3] For the reasons that follow, I would allow the appeal and order a new trial on the charge of second degree murder. Significant parts of Dr. Gojer's evidence were inadmissible. Those parts of his evidence had a prominent role at the trial. The Crown has satisfied me that Dr. Gojer's evidence may very well have affected the outcome at trial.

[4] I would reject the first ground of appeal advanced by the Crown. I will, however, address that ground as the availability of the defence of provocation may arise on the retrial. The ground of appeal also raises an important issue relating to Crown appeals from acquittals.

II

[5] Mr. Suarez-Noa and Ms. Cowell began dating in July 2011. Their relationship was fractious and volatile from the outset. They argued constantly, often by way of profanity laced text messaging. In September 2012, they had a baby boy. If anything, their relationship became more strained after their son's birth.

[6] Mr. Suarez-Noa and Ms. Cowell shared Ms. Cowell's apartment in Hamilton, Ontario. Ms. Cowell ordered the respondent out of the apartment on two occasions in February 2013. On both occasions, she invited him to return. Ms. Cowell ordered Mr. Suarez-Noa out of the apartment on a third occasion on March 8, 2013. That day, they had a long argument via text messaging. Ms. Cowell told Mr. Suarez-Noa that the relationship was over. He believed her.

[7] The next day, March 9, 2013, Ms. Cowell texted Mr. Suarez-Noa "baby wants daddy home". Mr. Suarez-Noa returned to the apartment on the evening of March 9.

[8] In the late evening of March 9, the neighbours heard loud arguing in the apartment. One neighbour heard a female scream and a male use the word "bitch".

[9] On March 10, 2013, Mr. Suarez-Noa went to the police and told them that he had killed his girlfriend. The police went to the apartment and found Ms. Cowell's body.

[10] Ms. Cowell had 11 stab wounds. In some of the wounds, the weapon had penetrated to the bone. Four of the stab wounds were independently lethal. One blow struck Ms. Cowell in the back. She had no defensive injuries. Mr. Suarez-Noa had no injuries of any kind.

[11] The investigation of the apartment revealed that the body had been moved post-mortem and that an attempt had been made to clean up some of the blood in the apartment.

[12] The Crown led evidence of Mr. Suarez-Noa's behaviour immediately after the killing. He took a picture of the dead body at about 11:00 p.m. Shortly afterward, he made several calls to his bank, his mother, and his ex-wife. He also Googled "homicide in Canada jail time" and "criminal sentencing in Canada".

[13] When Mr. Suarez-Noa turned himself in to the police, about 12 hours after the homicide, he had Ms. Cowell's blood on his feet and pants. He told the police that "she [Ms. Cowell] attacked me and I lost it". He stated that he "pretty much defended myself". He also said he "murdered" his wife.

[14] Mr. Suarez-Noa testified. He described the difficult nature of the relationship with Ms. Cowell. He indicated that they had a heated argument on March 8. He thought the relationship was over and decided to begin to look for a new place to live in Guelph, Ontario.

[15] On March 9, he received a text from Ms. Cowell, stating "baby wants daddy home". Mr. Suarez-Noa was relieved to get this message, believing that perhaps he and Ms. Cowell could work things out. He drove to the apartment on the evening of March 9, arriving at 8:00 or 9:00 p.m.

[16] According to Mr. Suarez-Noa, he, Ms. Cowell and their baby watched a movie. Afterward, they gave the baby a bath and fed him. The three were together in the living room in what Mr. Suarez-Noa described as "a happy moment".

[17] Mr. Suarez-Noa testified that they had a discussion about Mr. Suarez-Noa using Ms. Cowell's car. He said it was not an argument. He then went into the kitchen to make a sandwich.

[18] Mr. Suarez-Noa indicated that he was in the kitchen making a sandwich with a knife in his hand when Ms. Cowell came into the kitchen, said something to him and left the kitchen. Mr. Suarez-Noa did not hear what she said. He followed Ms. Cowell into the living room to ask her what she had said. He had the knife in his hand. Mr. Suarez-Noa's testimony in-chief continued:

… I actually didn't get it, right? So I was – I walked towards her and, this is when everything happened, okay, that moment. She just start attacking me. Well, well maybe, attacking – yelling. Attacking, yelling at me. All of a sudden she was like, I can't do this no more. I can't do this no more. I need my life back. And for sure I was not expecting that, like. I was like, whoa, wow. I didn't know what to do. I actually didn't know what to do. I was expecting her to ask me for help for something. I don't know. And then she said, I want my life back, I'm moving out. I'm moving out, I'm taking [our son] with me. I remember I told her – I think I was still trying to recover. I was like, you can't do that. You just can't do that. You just can't move – you can't do that. You just can't move away, and I said you can't do that. She said, and I'm sorry for the words, I can do whatever fuck I want. I'm Canadian and you're a fucking immigrant. I'm moving away, I'm taking [our son] with me and I'm going to do everything in my power for you not to see him again and you will have to support me for the rest of my life. And I lost it, okay? I lost it. I couldn't handle those words. I lost it, I flipped.

Q. What did you do?

A. What did I do? We're here today. I lost it, okay? I stabbed her. I lost my temper for seconds and, and I stabbed her. I just couldn't handle those words, I just – my son, away? It didn't – I would be – I would do anything I can do for you not to see him again. Who says those things? [Emphasis added.]

[19] Mr. Suarez-Noa recalled stabbing Ms. Cowell at least twice. He had trouble recalling the sequence of events after he started to stab her. He recalled dropping the knife and trying to help Ms. Cowell. He remembered blood everywhere and watching Ms. Cowell die.

[20] Mr. Suarez-Noa packed his son's formula and diapers and drove to Guelph with his son. According to Mr. Suarez-Noa, he was on "autopilot". He could not really say why he decided to drive to Guelph with his son, except that he routinely drove to Guelph.

[21] In cross-examination, Mr. Suarez-Noa denied that he became extremely angry with Ms. Cowell immediately before he killed her. He insisted that he "acted in impulse", stating:

I just told you that I lost it for the things that she said to me. Yes, I lost it….

III

Did the trial judge err in leaving the defence of provocation with the jury?

[22] The partial defence of provocation is set out in s. 232 of the Criminal Code, R.S.C., 1985, c. C-46. The relevant parts of the provision as they applied to this case are set out below:

232(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool. [1]

[23] At trial, it was common ground that the defence of provocation was available based on the appellant's evidence and, specifically, his evidence about Ms. Cowell's comments quoted above (para. 18). Crown counsel made extensive submissions about the content of the jury instruction on provocation. Crown counsel also argued at length in her closing that the jury should reject Mr. Suarez-Noa's evidence and the provocation claim based on that evidence. At no point in the trial did the Crown suggest that provocation should not be left with the jury.

[24] It is also noteworthy that, unlike many cases, Crown counsel had advance notice of the exact evidentiary basis for the provocation claim. Before the defence opened to the jury, counsel had provided Crown counsel with a copy of Dr. Gojer's report. In that report, Dr. Gojer quoted the specific allegedly provocative comment Mr. Suarez-Noa said Ms. Cowell uttered immediately before he attacked her. Dr. Gojer referred to this comment as a potential "trigger" in respect of the defence of provocation. The Crown knew, from Dr. Gojer's report, the precise nature of the provocative act relied on by the defence.

[25] On appeal, the Crown resiles from the position it took at trial. The Crown now argues that on the evidence, there was no air of reality to the provocation defence and that the trial judge erred in law in leaving the defence with the jury.

May the Crown argue that provocation should not have been left with the jury?

[26] The Crown submits that if there was no air of reality to the defence of provocation, the trial judge erred in law in leaving the defence with the jury regardless of the position taken by the Crown at trial. Counsel acknowledges that the Crown's position at trial is a factor to be considered in determining whether there was an air of reality to the defence, but argues that the Crown's position at trial cannot foreclose the ground of appeal advanced here.

[27] Crown counsel makes two submissions in support of his position. First, he points to s. 676, which gives the Crown a right of appeal against a verdict of acquittal on questions of law alone. He notes that the section does not qualify that right based on the position the Crown may have taken at trial. Second, counsel refers to cases in which appellate courts on appeals from conviction have allowed the Crown as respondent to argue against the availability of the defence of provocation despite the Crown at trial having accepted that the defence was available.

[28] The Criminal Code provision does not assist the Crown. Section 676 gives the Crown a right of appeal on questions of law alone. The section does not, however, restrict an appellate court's power on appeals brought by the Crown. The section speaks only to what the Crown can appeal, not the manner in which an appellate court may exercise its powers on a Crown appeal from acquittal. To take a simple example, no one would suggest that s. 676 gives the Crown the right to have a moot appeal determined on the merits simply because that moot appeal raises a question of law alone. An appellate court would maintain its discretion to decline to hear a moot appeal even though the appeal was brought by the Crown. In the same way, s. 676 does not leave an appellate court powerless in the face of a Crown appeal that constitutes an abuse of the appellate process.

[29] The case law relied on by the Crown is distinguishable. Those cases involved appeals from conviction in which the accused argued that reversible error arose either from the failure to leave provocation as a defence, or from the jury instruction on provocation. In those cases, it was open to the Crown to argue that provocation should not have been left with the jury, even if the Crown took a different position at trial because in making that argument, the Crown did not seek to put the accused in jeopardy for a second time. Rather, the Crown argues that the error relied on by the accused caused no substantial wrong or miscarriage of justice, because on a proper application of the law, provocation should never have been left with the jury in the first place. The distinction between the two positions lies in the difference between an argument demonstrating the harmlessness of an error made at trial, and an argument said to justify the retrial of an acquitted accused: see e.g. R. v. Flegel (2005), 196 C.C.C. (3d) 146 (Ont. C.A.); and R. v. Tremblay, 2007 QCCA 696, 50 C.R. (6th) 349.

[30] There is, however, a substantial body of case law dealing with Crown appeals that argues strongly against the Crown being allowed to advance this ground of appeal. I begin with Wexler v. The King, [1939] S.C.R. 350. In Wexler, the accused was charged with murder. At trial, the Crown argued that he had intentionally shot the deceased. The accused testified that the shooting was accidental. The jury acquitted and the Crown appealed.

[31] On appeal, the Crown argued that the trial judge had erred in law in failing to put a second factual and legal basis for liability to the jury. The Crown at trial had not argued that this alternative theory should be put to jury. The Quebec Court of Appeal allowed the Crown appeal and ordered a new trial. The Supreme Court of Canada unanimously allowed the further appeal and restored the acquittal.

[32] There are three judgments in Wexler. All stand firmly against the Crown's use of its right of appeal to secure a retrial based on the theory or legal argument not advanced at the first trial.

[33] Crocket J. put it this way, at pp. 357-58:

To subject him [the accused] now, after he has been put in jeopardy, taken the stand in his own behalf and been acquitted on that indictment, to a new trial thereon on the ground that he might have been convicted of manslaughter if the Crown counsel had not failed to put this feature of the case forward on the trial would, it seems to me with all respect, be such a manifest injustice as Parliament could not well be deemed to have intended when it enacted this drastic amendment to the Criminal Code. [2]

[34] Wexler has been applied in the Supreme Court in cases in which the Crown has sought to advance on appeal a different legal or factual basis for conviction than was advanced at trial: see Savard and Lizotte v. The King, [1946] S.C.R. 20, at p. 37; and R. v. Penno, [1990] 2 S.C.R. 865, at p. 895. This court has followed Wexler: see e.g. R. v. Varga (1994), 90 C.C.C. (3d) 484, at p. 494; and R. v. Elms (2006), 217 C.C.C. (3d) 217, at pp. 223-24, as have other appellate courts: see R. v. Nguyen, 2008 SKCA 160, 240 C.C.C. (3d) 39, at paras. 37-42; and R. v. Merson (1983), 4 C.C.C. (3d) 251 (B.C.C.A.), at pp. 272-73.

[35] In Varga, a Crown appeal, the Crown argued that the trial judge had improperly admitted certain evidence. In support of this ground of appeal, the Crown advanced an argument that had not been made at trial. In dismissing the appeal, this court observed, at p. 494:

A Crown appeal cannot be the means whereby the Crown puts forward a different case than the one it chose to advance at trial. It offends double jeopardy principles, even as modified by the Crown's right of appeal, to subject an accused, who has been acquitted, to a second trial based on arguments raised by the Crown for the first time on appeal. Double jeopardy principles suffer even greater harm where the arguments advanced on appeal contradict positions taken by the Crown at trial. [Emphasis added.]

[36] The unfairness to an accused in allowing the Crown to advance a contradictory position on appeal is exacerbated in this case by the nature of the Crown's argument supporting the new position it takes on appeal. The Crown argues that the court should take this case as an opportunity to narrow the meaning of the words "wrongful act or insult" in cases involving domestic violence in which an accused raises the provocation defence. The Crown's position is made clear in its factum:

Although "the courts have consistently recognized the potential for violence in our hearts" it is time that they stop. People are allowed to leave relationships. They are allowed, as well, a wide range of freedom of expression in doing so. There is a public interest in fostering emotional control in failing intimate relationships. In this context, the recipient of racially tainted insults and threats of restricted access to children cannot be permitted to respond with physical, let alone lethal, violence. [Emphasis added; citations omitted.]

[37] The Crown invites this court to reinterpret the phrase, "wrongful act or insult" to exclude the possibility that insults alone can amount to a provocative act in the context of domestic disputes. The Crown's position is consistent with the amendments made to s. 232 by Parliament in 2015. No one, however, suggests that the amendments apply in this case: see e.g. R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272, at paras. 16-18. The Crown's position is contrary to established authority interpreting s. 232 as it read prior to 2015: see R. v. Thibert, [1996] 1 S.C.R. 37, at paras. 22-24; and R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at para. 29.

[38] I think it would be doubly unfair to allow the Crown to not only advance a position on appeal that contradicted the position taken at trial, but to also advance a position calling on this court to reinterpret s. 232 so as to eliminate a defence that was available as the section was interpreted at the time of the trial.

[39] I would not allow the Crown to argue that the defence of provocation should not have been left with the jury at trial. I would dismiss this ground of appeal on that basis.

Was there an air of reality to the provocation defence?

[40] Assuming that the Crown should be allowed to raise this argument on appeal, I am satisfied that the defence was properly left with the jury on the evidence adduced at trial.

[41] The defence of provocation must be left with a jury when on the totality of the evidence there is a basis upon which a reasonable jury could have a reasonable doubt in respect of each of the constituent elements of the defence. This is sometimes referred to as the "air of reality" test: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 54. As explained in R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 21:

"[T]he air of reality test [is not] intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day." The question is whether a properly instructed jury acting reasonably could have a reasonable doubt as to whether the elements of the defence of provocation are made out. The trial judge may engage in a limited weighing of the totality of the evidence to determine if a jury acting reasonably on that evidence could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation… [Citations omitted].

[42] In this case, the evidentiary basis for the provocation defence came largely from the evidence of Mr. Suarez-Noa. In considering whether the defence should be left, the trial judge must assume the truth of that evidence: see R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at para. 27.

[43] Provocation has both an objective and subjective component. The objective component captured by the "ordinary person" inquiry recognizes that there is a minimum level of self-control demanded of all persons in the community. An accused who is in fact provoked by an insult or wrongful act that would not have caused the "ordinary person" to lose control and act "on the sudden" while out of control has no defence: see Thibert, at para. 23; and Tran, at paras. 32-34. The defence of provocation can be left with the jury only if there is an "air of reality" to both the objective and subjective components of the defence.

Was there evidence of an insult capable of depriving the ordinary person of self-control?

[44] The ordinary person for the purposes of provocation is described in Thibert, at para. 18:

The "ordinary person" must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused.

[45] In the present case, the prior relationship of Mr. Suarez-Noa and Ms. Cowell and the immediately preceding events of the evening of March 9 provide the context in which the "ordinary person" inquiry must be conducted. In my view, the words Mr. Suarez-Noa testified Ms. Cowell uttered immediately before the attack could reasonably be viewed as a denigrating taunt depicting Mr. Suarez-Noa, because he was an immigrant, as worthless and powerless to stop Ms. Cowell from doing whatever she wanted to do to him, including taking his son permanently out of his life and requiring Mr. Suarez-Noa to financially support her indefinitely. The words, in the context in which they were uttered, qualify as "injuriously contemptuous speech or behaviour… intended to wound self-respect; an affront; indignity": Thibert, at para. 8.

[46] The question whether the insult was sufficient to deprive an ordinary person of the power of self-control presents the most difficult feature of the provocation inquiry. As indicated in Pappas, at para. 33:

[W]hat would suffice to cause an ordinary person to lose self-control is a question of degree that the jury is well placed to decide, and one which, in cases of doubt, should be left to the jury.

[47] Placing the evidence in its most favourable light for the defence, Mr. Suarez-Noa badly wanted to maintain his relationship with Ms. Cowell and their son. On his evidence, on the evening of the homicide, Ms. Cowell had invited him back into the relationship specifically acknowledging their son's need for his father. On Mr. Suarez-Noa's evidence, the three enjoyed a happy family evening together. He was optimistic. On his evidence, Ms. Cowell suddenly, and without warning, once again ended the relationship. She verbally attacked and belittled Mr. Suarez-Noa, essentially suggesting that because he was an immigrant, he was powerless to do anything to stop her from ruining his life by taking their son away forever and making him support her forever.

[48] There is no doubt that Ms. Cowell had every right to change her mind and end the relationship. She had every right to indicate she would take whatever steps were available to her to secure her parental and financial rights. There is also no doubt that nothing said by Ms. Cowell "justified" (the word used by the Crown in its factum) Mr. Suarez-Noa's reaction to Ms. Cowell's words. Provocation, of course, does not justify conduct, but rather partially excuses conduct. Charron J., in Tran, at para. 29, aptly described the operation of the ordinary person component of the provocation test in the context of a marital break-up:

In other words, while one spouse undoubtedly has a legal right to leave his or her partner, in some circumstances the means by which that spouse communicates this decision may amount in fact to an "insult", within the ordinary meaning of the word. However, to be recognized at law, the insult must be of sufficient gravity to cause a loss of self-control, as objectively determined. The fact that the victim has the "legal right", in the broad sense of the term, to leave the relationship is an important consideration in the assessment of this objective standard.

[49] On the totality of the evidence, and especially Mr. Suarez-Noa's testimony, I regard this as a close case. Bearing in mind the command in Pappas, at para. 33, I am satisfied that there was a basis upon which a reasonable jury could have a doubt as to whether the insults directed at Mr. Suarez-Noa were, in the context, capable of depriving an ordinary person of self-control.

Was there evidence that Mr. Suarez-Noa acted in response to the provocation on the sudden before there was time for his passion to cool?

[50] The subjective components of the provocation defence depend on the accused's actual state of mind and reaction to the alleged assault. They can be considered together.

[51] Mr. Suarez-Noa's testimony provides grounds upon which a reasonable jury could have a doubt as to whether the alleged insult by Ms. Cowell caused Mr. Suarez-Noa to lose control and attack Ms. Cowell. According to Mr. Suarez-Noa's evidence, the attack followed immediately upon the utterance of the alleged insult. Based on this evidence, and to some degree the nature of the attack, a jury could have a doubt as to whether Mr. Suarez-Noa lost self-control and reacted to the insult on the sudden before there was time for his passion to cool.

[52] In arguing that there was no evidentiary basis for the subjective components of provocation, the Crown points to evidence of Mr. Suarez-Noa's goal-oriented conduct in the minutes and hours after the killing, his relatively clear memory of the events, and his initial statement to the police indicating that he acted in "self-defence". The Crown argues that this evidence considered cumulatively eliminates any "air of reality" to the provocation defence.

[53] The parts of the evidence martialed by the Crown could be, and were, used by the Crown at trial to argue against the provocation defence. For example, Mr. Suarez-Noa's initial statement to the police that he acted in self-defence could certainly give the jury cause to question the veracity of Mr. Suarez-Noa's description of the events at trial.

[54] The evidence relied on by the Crown does not, however, overcome the "air of reality" generated principally by Mr. Suarez-Noa's testimony. It was for the jury to decide whether to give effect to that defence having regard to the entirety of the evidence.

IV

The admissibility of Dr. Gojer's evidence

Dr. Gojer's opinions

[55] The defence proffered the evidence of Dr. Julian Gojer, a psychiatrist. Dr. Gojer had interviewed Mr. Suarez-Noa for several hours, reviewed the results of psychological testing, read the transcript of the preliminary inquiry, and reviewed various materials relevant to the trial including parts of Mr. Suarez-Noa's video statement to the police. Dr. Gojer provided defence counsel with a lengthy report. The parties argued the admissibility of Dr. Gojer's evidence on the basis of the contents of the report. The report itself was not admitted into evidence.

[56] The defence sought to elicit three opinions from Dr. Gojer:

• Mr. Suarez-Noa did not suffer from any major mental illness.
• Dissociation is a medically recognized response to emotionally charged events that can account for a person's inability to remember some or all of those events. Mr. Suarez-Noa's professed inability to remember all but two of the stab wounds could be explained by dissociation.
• Having regard to Suarez-Noa's description of the tensions in his relationship with Ms. Cowell, Mr. Suarez-Noa's stress, anxiety and depression and the nature of their relationship immediately before the relevant events, Ms. Cowell's comments calling Mr. Suarez-Noa an immigrant and threatening to take their son could have triggered a sudden outburst of intense emotion from Mr. Suarez-Noa culminating in a spontaneous impulsive act of violence.

[57] The trial judge ruled that the defence could lead evidence of all three opinions from Dr. Gojer. The Crown argues on appeal that none were admissible. I regard the third opinion as the central concern on this ground of appeal. I will address the first two only briefly.

The absence of evidence of a major mental disorder

[58] There was no suggestion that Mr. Suarez-Noa suffered from any mental disorder that had any relevance to his culpability. Dr. Gojer's evidence that Mr. Suarez-Noa did not suffer from any major mental illness had little, if anything, to do with the case. However, as the Crown candidly acknowledged at trial, and on appeal, that opinion did not hurt the case for the Crown and may well have assisted the Crown in the sense that it removed one possible explanation for Mr. Suarez-Noa's vicious attack on Ms. Cowell that may have occurred to the jury. This part of Dr. Gojer's evidence did not prejudice the Crown.

The evidence of dissociation

[59] Dr. Gojer's evidence offering dissociation as a medical explanation for memory loss was properly the subject of expert medical opinion. The evidence offered a medical explanation for Mr. Suarez-Noa's professed inability to remember certain details, although Dr. Gojer's inability to offer an opinion as to whether Mr. Suarez-Noa had dissociated reduced the evidentiary value of that opinion.

[60] On appeal, the Crown does not suggest that evidence of dissociation was not properly the subject of expert medical opinion. Instead, the Crown argues that the evidence should not have been received because of the confusion that the Crown claims the use of the word "dissociation" created in the proceedings. The Crown does not point to any confusion in Dr. Gojer's evidence, but instead points to the alleged misuse of the term by defence and Crown counsel and the trial judge. However, the Crown does not argue that any of this confusion led to reversible error by the trial judge in his instructions to the jury.

[61] As I understand the submission, the Crown argues that the trial judge should have anticipated the potential confusion caused by the word "dissociation" and ruled that Dr. Gojer could not give the opinion concerning dissociation to avoid this subsequent confusion. I cannot accept this argument. I see no inherent risk of confusion in the use of the word "dissociation". Dr. Gojer's evidence on this point was not confusing. His evidence cannot be rendered inadmissible by virtue of the subsequent misuse of the word by counsel or the trial judge.

[62] It was within the discretion of the trial judge to admit Dr. Gojer's evidence explaining dissociation and memory loss. Admittedly, the evidence had limited probative value as Dr. Gojer was unable to opine as to whether Mr. Suarez-Noa had dissociated at the time of the stabbing. However, that very same limited probative value which on the one hand argues against admitting the evidence, conclusively determines the absence of any prejudice to the Crown flowing from the admission of the evidence.

The evidence that Mr. Suarez-Noa was provoked by Ms. Cowell's comment

[63] The third opinion advanced by Dr. Gojer is the primary focus of this ground of appeal. That opinion as set out in Dr. Gojer's report is as follows:

The second issue, i.e. provocation, has both subjective and objective components. The objective components are legally determined. The provocation in this case being the comments made by Ms. Cowell to Mr. Suarez-Noa. This is dependent on whether he is believed and whether the comments satisfy the objective test for provocation. He reports reacting to these comments on impulse. This too is dependent on whether he is believed. Lastly, from a subjective point of view, his reported history of feeling deceived by a partner in the past with respect to pregnancy issues, his report believing that Ms. Cowell lied to him as to when she became pregnant and her motivations for becoming pregnant are important. Lastly, the stress related anxiety and depression, and the conversations in the days before the alleged offence culminating in the reports that she wanted to leave him, called him a fucking immigrant and that she would do what it took to prevent him from seeing his son, could have the ability to trigger a sudden outburst of intense emotions that culminated in an impulsive act in a person with no prior criminal history of aggression or violence. [Emphasis added.]

[64] Dr. Gojer's opinion went directly to the existence of the subjective component of the defence of provocation. In Dr. Gojer's view, the nature of Mr. Suarez-Noa's prior domestic relationships, his mental state (stress, anxiety, depression), the interactions with Ms. Cowell in the days immediately before the homicide and the "fucking immigrant" comment taken together could have triggered "a sudden outburst of intense emotions that culminated in an impulsive act".

[65] At trial, the Crown objected to Dr. Gojer advancing this opinion arguing that the opinion was beyond the purview of the expert as it was directed at "the ultimate issue as to what the jury will be deciding". Crown counsel further argued that this part of Dr. Gojer's proposed evidence was unnecessary in that it did not provide insight into Mr. Suarez-Noa's behaviour likely to be outside the ordinary experience and knowledge of the jury.

[66] The defence argued that Dr. Gojer, as a psychiatrist, was entitled to offer opinions on Mr. Suarez-Noa's mental state as they related to the subjective element of provocation. The defence suggested that Dr. Gojer could explain how conditions such as "anxiety" and "depression" could factor into an assessment of Mr. Suarez-Noa's reaction to the alleged insult by Ms. Cowell.

[67] In ruling that Dr. Gojer could give an opinion on the subjective component of provocation, the trial judge said:

The proposed opinion of Dr. Gojer includes a list of anxiety; depression; the conversations that the accused and the deceased had shortly before the event; comments that were made on March 9th between them; and opines that the combination of those items could have triggered an emotional reaction which Dr. Gojer indicates is, or could be, a sudden outburst of intense emotions that culminated in an impulsive act of a person with no prior criminal history of aggression or violence. In other words, he is not providing a diagnosis, but a medical opinion of a possible explanation for conduct. It is not clear to me whether that evidence has a direct impact on the issue of provocation and alternatively, the issue about the mental element required for murder. But I do consider it necessary for the jury to know that there is the possibility of a medically recognized situation subjectively under the circumstances listed. [Emphasis added.]

[68] Dr. Gojer testified at length. He summarized the statements made to him by Mr. Suarez-Noa. Those statements concerned Mr. Suarez-Noa's prior domestic relationships, his relationship with Ms. Cowell, and the events on the night that Ms. Cowell died. Dr. Gojer interspersed his summaries of Mr. Suarez-Noa's statements with references to what he believed must have been going on in the mind of Mr. Suarez-Noa at various times during the events recounted by Mr. Suarez-Noa. For example, Dr. Gojer opined that Mr. Suarez-Noa's prior relationships "might have added to the sensitivity" that he brought to his relationship with Ms. Cowell. Similarly, he believed that certain trust related issues may have been in "the back of his mind" when Mr. Suarez-Noa was dealing with Ms. Cowell.

[69] Eventually, defence counsel asked the following question:

And so, what do you see in terms of his emotional experience along that path that factors into what actually occurred? Or, what he reports occurred?

[70] A two-page monologue by Dr. Gojer flowed from this question. In the monologue, he described Mr. Suarez-Noa as vulnerable, sensitive, fragile and "[f]eeling a little anxious… [f]eeling a little depressed". Dr. Gojer testified that none of this amounted to a major mental illness.

[71] Referring to Mr. Suarez-Noa's response to Ms. Cowell's comments describing Mr. Suarez-Noa as an immigrant who was powerless to stop her from taking his son, Dr. Gojer opined:

[M]y interpretation would be that he would have likely felt powerless and helpless. And with that personality that we describe of being more passive as opposed to being aggressive, it can explain what he says – if one accepts what he says is the truth because nobody was there at the time to know what actually was said – but if we accept what he said, then I would say that that would be a significant event that would impact on his personality, his psychological functioning at the time. That could explain why a person would act out on impulse.

[72] Dr. Gojer continued by explaining that an important feature of his assessment was the absence of any history of violence by Mr. Suarez-Noa. Dr. Gojer said:

I've not been provided with any information and he reported that there has been no prior history of aggression or violence. So essentially, this is a person whose personality is that of a non-aggressive individual from a physical point of view. So the behaviour that he's reporting seems to go against the grain of aggression. It's not a person who uses aggression to resolve disputes and arguments. So, if it was a person whose regular pattern is about beating people up, using intimidation and aggression to express a point, then you would say that him losing control is part and parcel of that type of personality style or structure that he has. In other words, you would say he's nothing more than a person who's got an anti-social trend or a psychopathic trend to act that way. We – I don't see that in this account. Neither do I see a history of that, in this man. So, we're going to say that this event seems to be something that's quite different from what you would expect in this individual. It's an unusual event. Can anything explain why a person would suddenly lose control? If there's a trigger – if there's a traumatic event – that might explain it. That's what he's telling us. He's telling us that's what she said. And that's a crucial question that we have. And that's really a decision for the court – whether we believe him when he says, "She made those comments to me," because everything hinges on those comments that were made.

[73] Dr. Gojer went on to explain that Ms. Cowell's alleged provocative comments were the sort of thing that could well have triggered a loss of control by Mr. Suarez-Noa. In Dr. Gojer's opinion, the comments would be perceived by Mr. Suarez-Noa as a "very significant event".

[74] There was no objection by the Crown to any part of Dr. Gojer's testimony during his examination-in-chief. The cross-examination took three principle tacks. First, the Crown established that several of the personality traits revealed in the personality testing done for Dr. Gojer were capable of undermining the psychological portrait of Mr. Suarez-Noa painted during Dr. Gojer's examination-in-chief. For example, Mr. Suarez-Noa was said to fit the profile of a person who had significant interpersonal and marital conflicts and who was always quick to project blame on the other party.

[75] Second, the Crown demonstrated that Dr. Gojer did not review all of the information available to him before giving testimony. For example, he did not watch the entire interview Mr. Suarez-Noa had with the police. He also was not in court when Mr. Suarez-Noa testified. The Crown attempted to demonstrate that parts of Mr. Suarez-Noa's testimony, particularly his evidence about his reaction to the "fucking immigrant" comment, were quite different than what Mr. Suarez-Noa had told Dr. Gojer. The Crown argued that to the extent that the evidence differed from Dr. Gojer's understanding, Dr. Gojer's opinion must be rejected.

[76] Third, the Crown cross-examined Dr. Gojer to show that Mr. Suarez-Noa had given significantly different versions of the same events. The Crown used this aspect of Dr. Gojer's evidence to attack Mr. Suarez-Noa's credibility.

[77] Not surprisingly, Dr. Gojer's evidence figured prominently in defence counsel's closing address. The trial judge also referred to his evidence. The jury asked to rehear Dr. Gojer's evidence in its entirety during their deliberations.

The applicable law

[78] Opinion evidence, including expert opinion evidence, is presumptively inadmissible: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 71, leave to appeal refused, [2010] S.C.C.A. No. 125. To be admissible, expert opinion evidence must satisfy certain preconditions to admissibility and also survive a cost/benefit analysis by the trial judge. At this second stage, the trial judge decides whether having regard to the risks inherent in admitting expert evidence, the benefits to the fact finding process in the specific case warrant the admission of that evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24; and Abbey, at paras. 76-79.

[79] The Crown submits that Dr. Gojer's evidence should have been excluded for two reasons. First, his evidence was not properly the subject matter of expert psychiatric opinion. Second, his evidence was not necessary in that it did not provide the jury with information or inferences from other evidence likely to be beyond the common experience of the jury. The two submissions are closely related and arguably come down to the same point. The Crown contends that Dr. Gojer's opinion provided no "benefit" in the sense that it did not put the jury in a better position to assess the evidence, and in particular Mr. Suarez-Noa's mental state when he killed Ms. Cowell. The evidence did, however, carry the very real "risk" that the jury would abdicate its difficult responsibility to assess Mr. Suarez-Noa's mental state to the "expert", Dr. Gojer, and simply accept his opinions as their factual findings.

[80] I first consider whether Dr. Gojer's opinion fell within the proper ambit of expert psychiatric opinion. Dr. Gojer did not testify that Mr. Suarez-Noa suffered from any identifiable mental disorder, or that he fell within any psychiatrically identifiable group. Instead, he described Mr. Suarez-Noa as "passive" and "non-aggressive… from a physical point of view". Stripped to its essential core, Dr. Gojer's testimony came down to the assertion that if one believed what Mr. Suarez-Noa told Dr. Gojer, Mr. Suarez-Noa was not the sort of person who would do what he did to Ms. Cowell unless some "significant event" caused him to lose control and react with extreme and uncharacteristic violence. In short, Dr. Gojer gave evidence of Mr. Suarez-Noa's disposition, and more specifically, his disposition not to act violently in the absence of a "significant triggering event".

[81] Psychiatric opinion evidence going to an accused's disposition is admissible in limited circumstances. In the leading case of R. v. Robertson (1975), 21 C.C.C. (2d) 385 (Ont. C.A.), Martin J.A. wrote at pp. 429-30:

In my view, psychiatric evidence with respect to disposition or its absence is admissible on behalf of the defence, if relevant to an issue in the case, where the disposition in question constitutes a characteristic feature of an abnormal group falling within the range of study of the psychiatrist, and from whom the jury can, therefore, receive appreciable assistance with respect to a matter outside the knowledge of persons who have not made a special study of the subject. A mere disposition for violence, however, is not so uncommon as to constitute a feature characteristic of an abnormal group falling within the special field of study of the psychiatrist and permitting psychiatric evidence to be given of the absence of such disposition in the accused. [Italics in original; underlining added.]

[82] The limited basis for admitting expert evidence of disposition articulated in Robertson has been repeatedly applied in the Supreme Court of Canada: see R. v. McMillan, [1977] 2 S.C.R. 824; R. v. Mohan, [1994] 2 S.C.R. 9; and R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600. In Mohan, at p. 37, Sopinka J. explained:

Before an expert's opinion is admitted as evidence, the trial judge must be satisfied, as a matter of law, that either the perpetrator of the crime or the accused has distinctive behavioural characteristics such that a comparison of one with the other will be of material assistance in determining innocence or guilt… The trial judge should consider the opinion of the expert and whether the expert is merely expressing a personal opinion or whether the behavioural profile which the expert is putting forward is in common use as a reliable indicator of membership in a distinctive group.

[83] Dr. Gojer did not suggest that Mr. Suarez-Noa fell into any "distinctive group" from a psychiatric point of view. To the contrary, he described Mr. Suarez-Noa as under stress, depressed, anxious, and distrustful, all feelings that fall within the normal range of human emotions. Dr. Gojer's opinion was not based on a diagnosis or characterization of Mr. Suarez-Noa's mental state as reflecting some recognized psychiatric disorder or condition. Instead, Dr. Gojer's evidence reflected his personal opinion on what may have been in Mr. Suarez-Noa's mind, based on Dr. Gojer's assessment of Mr. Suarez-Noa's mental makeup.

[84] In permitting Dr. Gojer to give this opinion, the trial judge drew a distinction between a "diagnosis" and a "medical explanation" for Mr. Suarez-Noa's conduct. He also referred to Dr. Gojer's opinion as evidence of "the possibility of a medically recognized situation". I am unsure of the distinction between a "diagnosis" and a "medical explanation". More to the point, Dr. Gojer offered neither. Nor did he suggest that Mr. Suarez-Noa's conduct fell within some generally accepted and definable "medically recognized situation". Dr. Gojer's opinion as to Mr. Suarez-Noa's disposition for violence, or more specifically, the absence of any such disposition in the absence of a significant triggering event, did not fall within the recognized parameters of admissible psychiatric opinion evidence as to disposition.

[85] It flows from my conclusion that Dr. Gojer's opinion went beyond the proper ambit of expert psychiatric opinion of disposition, that his opinion was also unnecessary in the relevant sense. The jury had the same, indeed more, information than Dr. Gojer did about Mr. Suarez-Noa's state of mind and the factors that may have been relevant to his conduct when he killed Ms. Cowell. The jury was capable of understanding and weighing the emotional strain associated with the turbulent relationship between Mr. Suarez-Noa and Ms. Cowell. Similarly, the jury was well-equipped to appreciate the kind of emotion that could be generated by the situation described by Mr. Suarez-Noa immediately before the homicide. The jury did not need Dr. Gojer to tell them about the potential volatility of a situation like that described by Mr. Suarez-Noa. Nor could Dr. Gojer assist the jury in the crucial task of assessing the credibility of Mr. Suarez-Noa's description of those events.

[86] Expert opinion evidence, like that given by Dr. Gojer in this case, has been rejected in several cases as an unnecessary intrusion upon the jury's responsibilities: see e.g. R. v. Lovie (1995), 100 C.C.C. (3d) 68 (Ont. C.A), at pp. 76-78; R. v. Currie (2002), 166 C.C.C. (3d) 190 (Ont. C.A.), at paras. 66-67; R. v. Rogers (2005), 2005 BCCA 377, 198 C.C.C. (3d) 449 (B.C.C.A.), at para. 79; and R. v. Liard, 2013 ONSC 5457, at paras. 363-77.

[87] The observations of the trial judge in Liard, at para. 377, a case in which the defence offered evidence from Dr. Gojer, not unlike the evidence offered here, are apposite:

Dr. Gojer's anticipated evidence is not admissible because it is not necessary to assist the jury. Rather, it is a summary of conclusions about Mr. Lasota's [the accused] reactions to stresses and difficulties in his life. The jury is able to assess these circumstances without Dr. Gojer's evidence … It [Dr. Gojer's evidence] tends to dress up matters of common experience in the cloak of expertise, giving rise to a fear that the jury would give undue weight to the opinion.

[88] Ms. Pringle, counsel for Mr. Suarez-Noa, persuasively argued that even if Dr. Gojer's opinion concerning Mr. Suarez-Noa's mental state was inadmissible, the Crown made a tactical decision, after advancing a very limited objection to his evidence, to make its case by cross-examining Dr. Gojer. She stresses that the Crown did not object to any part of Dr. Gojer's evidence when he was testifying. Ms. Pringle argues that the Crown, having made a tactical choice to advance its case through the cross-examination of Dr. Gojer, should not be allowed to argue on appeal that none of his evidence was admissible.

[89] I was initially attracted to this submission. However, on further reflection and a more thorough review of the trial record, I cannot accept the argument.

[90] A careful reading of Crown counsel's objections at trial satisfy me that she did object to Dr. Gojer giving any evidence about the subjective component of the provocation defence. She referred to this part of his proposed opinion as "entirely outside the purview of this expert". She also referred the trial judge to the case law identifying the requirement that expert evidence to be admissible must be beyond the ordinary experience of jurors. On a fair reading of the trial record, I am satisfied that Crown counsel at trial took the same position on this issue as did the Crown on appeal.

Should the court order a new trial?

[91] The Crown has demonstrated an error in law at trial. To obtain a new trial based on that error, the Crown must establish that in the context of the trial as the issues unfolded and were argued, the error might, to a reasonable degree of certainty, be believed to have had a material impact on the acquittal: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 16-17; R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, at paras. 30-37; and R. v. George, 2017 SCC 38, at para. 27.

[92] The Crown has met its burden. In my view, as counsel accepted on appeal, provocation was the central issue at trial. In considering that defence, the jury was obliged to decide whether Mr. Suarez-Noa should be partially excused for having murdered Ms. Cowell. The decision was clearly a difficult one. The jury may well have given considerable weight to what may have appeared to the jury to be an objective assessment of Mr. Suarez-Noa's conduct made by a trained medical expert with specialized expertise in understanding the human condition. In reality, for the reasons set out above, Dr. Gojer was at best in no better position than the jury to make this assessment.

V

Conclusion

[93] I would allow the appeal, set aside the acquittal on the charge of second degree murder and the conviction on the charge of manslaughter and order a new trial on the charge of second degree murder.

Released: July 28, 2017

"Doherty J.A."

"I agree Paul Rouleau J.A."

"I agree S.E. Pepall J.A."

Footnotes

[1] Section 232 was amended by S.C. 2015, c. 29, s. 7. Section 232(2) now reads: "Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool." Under the present provision, the provocative act must amount to an indictable offence punishable by at least five years. An insult that is not criminal is no longer capable of constituting a provocative act.

[2] The amendment created the Crown's right of appeal from an acquittal.

[3] Counsel for the respondent refers to R. v. Gillett (2002), 159 O.A.C. 247 (C.A.), in support of the admissibility of Dr. Gojer's evidence. In its brief endorsement, the court referred to the evidence given by Dr. Gojer. That evidence was similar to evidence he gave in this case. From the endorsement, it would not appear that the admissibility of Dr. Gojer's evidence was in issue on the appeal.