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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;
(b) on application made by the victim, the prosecutor or any such witness, make the order; and
(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order;
(b) on application of the victim or the prosecutor, make the order; and
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
(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.
(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall
(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;
(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and
(c) in any event, advise the prosecutor of their duty under subsection (3.2).
(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have
(a) informed the witnesses and the victim who are the subject of the order of its existence;
(b) determined whether they wish to be the subject of the order; and
(4) An order made under this section does not apply in either of the following circumstances:
(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or
(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.
(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.
486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,
(a) the person knowingly failed to comply with the order;
(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and
(c) a warning to the individual is not appropriate.
(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.
COURT OF APPEAL FOR ONTARIO
DATE: 20240816 DOCKET: COA-22-CR-0177 Rouleau, Benotto and Thorburn JJ.A.
BETWEEN
His Majesty the King Respondent
and
Jacob Hoggard Appellant
Counsel: Gerald Chan, Megan Savard, Arash Ghiassi and Spencer Bass, for the appellant Catherine Weiler and Holly Loubert, for the respondent
Heard: June 19, 2024
On appeal from the conviction entered on June 5, 2022 by Justice Gillian E. Roberts of the Superior Court of Justice, sitting with a jury.
Benotto J.A.:
[1] Jacob Hoggard was a Canadian singer, songwriter and lead singer in a band called Hedley. He was charged with sexual assault causing bodily harm to two young women, M.B. and J.B. He was acquitted of the charge involving M.B. He appeals his conviction with respect to J.B.
[2] The primary ground of appeal is that the trial judge erred by admitting expert evidence about the neuroscience of responses to traumatic events. J.B. had numerous opportunities to get away or call for help during the alleged assault. The trial judge determined expert evidence was necessary to explain the neurobiology of trauma and the broad spectrum of responses to sexual assault. The appellant submits that admission of the evidence was an error requiring a new trial.
[3] The appellant also submits that the Crown made a legal error in closing submissions that the trial judge was required to correct, that the trial judge provided an unbalanced charge and that the trial judge erred by admitting discreditable conduct evidence.
[4] As I will explain, I have concluded that the trial judge erred by admitting the expert testimony. However, in response to the jury’s questions, the trial judge corrected any misuse of the evidence and in light of all the circumstances, there was no substantial wrong or miscarriage of justice. As such, I would apply the curative proviso. I do not agree that the trial judge erred with respect to the other grounds raised. Consequently, I would dismiss the appeal.
BACKGROUND
[5] The charges with respect to the complainants were heard together. The charges involving M.B. arose out of activity that happened in the spring, when she was 15 years old, and in the fall of 2016, after she turned 16. The charges involving J.B. arose out of activity in the fall of 2016. She was 22 years old. A summary of their evidence follows.
(1) M.B.
[6] M.B. had been a fan of the appellant’s band, Hedley, since she was 10 years old. She attended several concerts throughout her childhood. For her thirteenth birthday, she and her family attended one of the band’s concerts. They happened to be staying in the same hotel as the band. The appellant gave M.B.’s father his telephone number and invited the family to visit them backstage at an upcoming concert, which they did. M.B.'s parents separated in 2013, and her mother became the point of contact with the appellant. At some point, M.B. copied the appellant’s number from her mother’s phone and began communicating directly with him by text and Snapchat.
[7] The appellant invited M.B. to come to Toronto on April 29, 2016. He was performing at the Air Canada Center in Toronto. He told her to come with friends, not her parents. He sent a car to Barrie to pick her up, along with two of her friends, and bring them to the concert. M.B. and her friends went to the afterparty when the concert was over. While there, the band’s manager called M.B. and said the appellant would like to see her in his dressing room. M.B. and her two friends were taken to the appellant’s dressing room. The appellant hugged M.B., grabbed her buttocks, and swung her around. M.B. and her friends took photographs with the appellant. When they did, the appellant slowly moved his hand down M.B.’s back and again touched her buttocks. M.B. pushed his hand away, but he continued. He also tried to kiss her neck. The following day, the appellant texted her that he wished she could have stayed the night.
[8] The appellant then invited M.B. to spend a day with him sometime when the band was in Toronto. By then, she had turned 16. On Friday, September 30, 2016 he again sent a car to pick her up. They met in the lobby of a hotel near the Toronto airport. He brought her to his hotel room, where she testified that he kissed her aggressively, held her down on the bed and called her degrading names. She was crying, he slapped her, put his fingers in her mouth, and spit in her mouth. He ejaculated on her face. He penetrated her vaginally and tried to force anal sex. She kept telling him to stop.
[9] When he finally stopped, he said he would get a towel. When he did that, M.B. got dressed and texted her friend, asking her to call and act like her manager. Her friend called and M.B. pretended she was being called into work. The appellant called for a car to pick her up and walked her to the lobby. The appellant hugged her and told her he could not wait to see her again. He texted her and asked if she was ok, and whether she had arrived home safely. She did not reply and blocked his number.
(2) J.B.
[10] In early November 2016, J.B. and the appellant matched on Tinder. J.B. was 22 at the time, living and going to college in Ottawa. The appellant asked her if she would meet him in Toronto when he was there next. J.B. understood that the reason she would be meeting up with him was to have sex. He purchased a train ticket for J.B. from Ottawa to Toronto for November 22, 2016.
[11] J.B. met the appellant in the lobby of his hotel. He took her to a room and explained it was not his regular room. Once in the room, the appellant pushed her against a wall and kissed her. J.B. told the appellant she was uncomfortable, and the appellant backed off. He told her she was "all talk" and could "just go" if she wanted. Once the appellant’s room was ready, the appellant left first and told J.B. to follow so no one would see her. She complied.
[12] Once there, the appellant pushed J.B.’s face down on the bed, pulled off her pants and began to have anal intercourse with her. He did not wear a condom. She was crying. She told him no, and that he was hurting her. He kept telling her to be quiet, that it would be over soon. Either just before or after this, the appellant took J.B.'s cell phone, telling her he had to take it because too many girls took pictures of him and posted them on the internet. The appellant anally penetrated her and tried to put his penis in her mouth. She was crying. He also vaginally penetrated her. At one point the appellant dragged J.B. by the legs into the bathroom and screamed at her to urinate on him. The appellant slapped her in the face a couple of times and kept spitting on her. He told her she was a “dirty little pig” and made animal noises at her. He kept grabbing her face, trying to open her mouth and spit in her mouth.
[13] J.B. recalled being penetrated a total of four or five times. She was too scared to leave. Eventually he told her he had to do an interview, and there was a cab waiting out front for her. Shortly after J.B. left, he texted her that they had a wonderful day together and he could not wait to see her again. She testified that she responded, “you raped me.” The trial judge found that J.B. did not respond until a couple of days later when she called him and told him he sexually assaulted her. The appellant said he did not know what she was talking about because they had a great day together. That was the last time they spoke.
(3) Expert evidence of Lori Haskell
[14] In order to address the fact that the complainants did not escape when they had the chance, the Crown sought to admit the evidence of Lori Haskell.
[15] Dr. Lori Haskell, a clinical psychologist, testified about the neurobiology of trauma, and the broad spectrum of responses to sexual assault. She was qualified to give the jury a generic “science lesson” on the neurobiology of trauma so long as she did not link the evidence to the complainants, neither of whom she assessed.
[16] The trial judge was satisfied that a “pared down” version of Dr. Haskell's proposed evidence was relevant and necessary for the anti-myth and stereotype instruction to be effective in the circumstances of this case, and for the jury to fairly evaluate the evidence. The trial judge was concerned that myths, possibly unconsciously held, about how a "real" sexual assault complainant would behave would mislead the jury. She concluded that an instruction alone would “not make sense” in the absence of basic scientific evidence which informs it.
[17] Dr. Haskell delivered her testimony as a lecture with PowerPoint slides. She discussed the fields of neurobiology and psychology; the nature of traumatic events; peritraumatic stress responses; trauma-related changes to thinking capacity, behaviour, attention and memory; and the role played by brain circuitries, the amygdala, the prefrontal cortex, and stress hormones during trauma. She testified that experiencing a traumatic event, such as sexual assault, can cause memory to fragment and lack a coherent narrative. She said trauma can cause dissociation, loss of executive function, and thought impairment.
[18] She testified that when a person is exposed to a threatening event that induces fear, extreme stress or perceived inescapability, the defence circuitry within the brain and the body is automatically activated. The brain is flooded with stress chemicals which can impair the function of the prefrontal cortex and cause habit behaviours and reflexes to be enhanced. She opined that, when faced with a traumatic experience, “most people who can’t run or fight are going to do more avoidant habits,” including denial, appeasement, de-escalation, and acquiescence.
(4) The Crown Closing
[19] In closing, the Crown made multiple references to Dr. Haskell’s evidence. With respect to J.B., the Crown reviewed J.B.’s evidence about why she stayed in the hotel room, despite having the opportunity to leave. The Crown referred to Dr. Haskell’s evidence about how a person may respond to a traumatic event like sexual violence by “freezing,” and invited the jury to apply “the lens of Dr. Haskell’s science lesson and you will have no trouble finding that…[J.B.] responded in the only way that [she was] capable of in that moment.”
(5) The Jury Charge
[20] The trial judge instructed the jury that there was no standard way for a complainant to act in response to a sexual assault:
In my opening remarks to the entire jury panel, and to you at the beginning of this trial, I emphasized the importance of keeping an open mind and being impartial and objective. In particular, I cautioned you not to make assumptions about what constitutes sexual assault, what kind of person may be the victim of sexual assault, what kind of person may commit a sexual assault, or what a person who is being, or has been, sexually assaulted will do or say. I repeat that caution now.
Sexual assault can take place in many different circumstances between all kinds of people who react in a variety of ways. Equally, consensual sexual encounters can take place in many different circumstances between all kinds of people who react in a variety of ways.
I remind you of this instruction and my caution not to jump to conclusions based on conscious or unconscious feelings or assumptions about how a person who has been sexually assaulted should behave, or how a person who has engaged in consensual sex should behave. There is no single way or rule regarding how people who are the victims of trauma like sexual assault behave during and afterwards.
[21] Specifically, with respect to Dr. Haskell, she instructed the jury that:
- Dr. Haskell was permitted to testify for the very limited purpose of helping the jury understand that there is no single of model response to a trauma like sexual assault.
- Dr. Haskell never met the complainants and knew nothing about their evidence.
- Her evidence cannot be used to diagnose the complainants’ behaviour or conclude that their behaviour is consistent with having been sexually assaulted.
- It is not possible to reason backwards from a stress reaction and conclude that it was caused by a traumatic event.
(6) The Jury Questions
[22] Early in the deliberations, the jury requested a readback of Dr. Haskell’s evidence. They also asked four questions regarding her testimony:
- What constitutes an event? Would the showers J.B. claims J.H. took indicate separate events or are they all part of one event?
- Confirm Dr. Haskell testified only about responses to an event as it occurs and not potential responses after.
- Did Dr. Haskell give any indication as to how quickly after an event the prefrontal cortex would regain control?
- Is an event still in progress if the necessary operative factors are no longer present?
[23] The trial judge did not permit a readback of the evidence. She reminded the jury that Dr. Haskell testified about the brain and body's response to trauma in general and that her evidence cannot be used to explain the particular evidence in this case. She said:
Dr. Haskell cannot help you decide what happened in this case. It's for you to decide what happened in this case.
And I just want to add some general comments about the role of Dr. Haskell's evidence in this case. She plays a very small role in this case. Her evidence plays a very small role in this case. It was called simply as really a preventive measure so that you do not engage in stereotypical reasoning about how a so-called real victim would or should respond to a sexual assault, for example, make an assumption that a real victim would fight or a real victim would try and escape at the first opportunity or a real victim would immediately call the police or scream or yell or try and get help immediately. You cannot use Dr. Haskell's evidence to explain the particular evidence in this case. Once again, her evidence was only called so that you would understand that there is no ideal or model way that somebody responds to a trauma, including a trauma like sexual assault.
[24] The jury returned to deliberations and continued to deliberate for five more days. They asked questions, but none were about the expert evidence. They returned a verdict of not guilty with respect to M.B. and guilty with respect to J.B.
ISSUES ON APPEAL
[25] The issues on appeal are:
- Did the trial judge err by admitting the evidence of the neurobiology of trauma?
- Did the trial judge err by failing to correct the Crown closing?
- Did the trial judge deliver an imbalanced charge?
- Did the trial judge improperly admit discreditable conduct evidence by refusing to grant a severance of the J.B. and M.B. trials?
- If the judge erred, should the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 be applied?
(1) Did the trial judge err by admitting the evidence of the neurobiology of trauma?
[26] It is common ground that myth-based reasoning should be eradicated. As has been recently articulated in R. v. Kruk, 2024 SCC 7, 489 D.L.R. (4th) 385, at paras. 42-43:
The legislative and jurisprudential treatment of these issues reflects a collective understanding that courts should strive to eradicate myths and stereotypes from their decisions because they threaten the rights of complainants and undermine the truth-seeking function of trials.
This Court has repeatedly held that “myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function” A trial is a truth-seeking process, and reliance on myths and stereotypes distorts the truth. In Mills, this Court explained that myths and stereotypes about sexual assault victims hamper the search for truth and impose “harsh and irrelevant burdens on complainants in prosecutions of sexual offences”. While the accused’s constitutional rights must remain at the forefront of any criminal trial, this Court has also acknowledged that measures can be taken to avoid reliance on myths and stereotypes without compromising those rights. [Citations omitted].
[27] Yet, myths and stereotypes about how a victim might behave persist, including in the jurisprudence. In R. v. Varghese, 2024 ONCA 555, at para. 35, this court said: “[d]iscredited myths and stereotypes endure about how a sexual assault victim should behave, often masked in ‘common sense’ language”, citing R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 9, cited by this court in Lacombe, at para. 33, and R. v. Donnelly, 2023 ONCA 243, at para. 40. As Varghese demonstrates, judges are not immune to myth-based reasoning.
[28] The issue on appeal is not whether myth-based reasoning should be eradicated. Rather it is how best to do so.
[29] The trial judge concluded that Dr. Haskell’s evidence met the Mohan test for admissibility because it was necessary for the jury understand why a person may react in a certain way to ensure that myths or stereotypes do not infect its reasoning: see R. v. Mohan, [1994] 2 S.C.R. 9, at p. 20; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 19, 21-24. She determined that “an instruction alone will not make sense unless it includes at least some of the basic scientific phenomena that inform it.”
[30] While deference is owed to the trial judge’s discretionary determination of whether the Mohan requirements have been met on the facts of a particular case, “that discretion cannot be used erroneously to dilute the requirement of necessity”: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para 47. In my view, the expert evidence was not necessary in this case. A jury instruction alone would provide the necessary guidance and, moreover, would have avoided the obvious risks that later materialized in the jury questions.
[31] For the following reasons, I conclude that the trial judge erred in admitting the evidence.
(a) A jury instruction is sufficient and preferable
[32] The jury instructions tell the jury what the law is and how to apply it. The concept that there is no standard way for a complainant to act in response to a sexual assault is well-entrenched in the law: R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 45; R. v. Kiss, 2018 ONCA 184, at para. 101, citing D.D., at para. 65. Akin to the delayed disclosure considered in D.D. over twenty years ago, there is no basis to refute the “undeniable nature of the proposition”: at para. 66. Expert testimony is not necessary to explain this law to the jury. A jury instruction “would have effectively dispelled the possibility that the jury might engage in stereotypical reasoning, [and] it was not necessary to inject the dangers of expert evidence into the trial”: D.D., at para 64. The Supreme Court also presented additional advantages of a jury instruction at para. 67:
A jury instruction, in preference to expert opinion, where practicable, has advantages. It saves time and expense. But of greater importance, it is given by an impartial judicial officer, and any risk of superfluous or prejudicial content is eliminated.
[33] The trial judge cautioned the jury against stereotypical reasoning four times during the trial, starting with her opening instructions. She reminded the jury that “[t]here is no single rule or way regarding how people who are the victims of trauma like sexual assault will behave during and afterwards.” For further clarification, the trial judge could have expanded and provided examples in the charge. It was not necessary to admit expert testimony.
(b) The evidence risked being misused
[34] The last step in the Mohan test requires a cost/benefit analysis. The evidence here did not survive that balancing. It was fraught with risks, as the jury questions disclosed.
[35] The evidence risked being misused by the jury to reason backwards. Because the conduct displayed by the complainants was consistent with the conduct of a person described by Dr. Haskell as having impaired function of the prefrontal cortex, the jury would tend to conclude that the complainants had in fact suffered the assault that triggered this response.
[36] Despite clear instructions from the trial judge that the jury not use Dr. Haskell’s evidence “to diagnose the complainants’ behavior, or conclude that the behavior is consistent with having been sexually assaulted”, the jury questions and readback request suggested that the jury was doing precisely what they were cautioned not to do. The questions concerned the trial judge because, as the trial judge stated, Dr. Haskell’s evidence “shouldn’t be playing a major role in their decision;” and led her to issue a corrective instruction emphasizing that the jury could not use the evidence to explain the particular evidence in this case.
[37] The four detailed questions the jury posed suggested that they were seeking to tie Dr. Haskell’s opinions to the testimony in this case. The jury asked questions such as “what constitutes an event?”, “how quickly after an event [does] the prefrontal cortex … regain control?”, and “is an event still in progress if the necessary operative factors are no longer present?”. These questions seem to have arisen from the evidence that certain behaviour or conduct might be indicative of the operation of neurological and physiological mechanisms following a traumatic event. In other words, complainants’ failure to escape could indicate that they had indeed suffered an alleged sexual assault.
[38] Although I conclude that the trial judge’s responsive instructions corrected the path the jury appeared to be on, the risks could have been avoided altogether with a strong jury instruction in lieu of Dr. Haskell’s evidence.
(c) This particular evidence was complex, detailed and confusing
[39] The evidence in this case included complex teachings about the “integration of… neurobiology and psychology;” the nature of traumatic events; peritraumatic stress responses; trauma-related changes to thinking capacity, behaviour, and memory; and the role played by brain circuitries, the amygdala, the prefrontal cortex, and stress hormones during trauma, Dr. Haskell testified that experiencing a traumatic event, such as sexual assault, can cause memory to fragment and lack a coherent narrative. She said trauma can cause dissociation, loss of executive function, and thought impairment. The complexity of this evidence – which was not necessary – was confusing.
[40] In addition, the evidence of Dr. Haskell risks conveying a false sense of reassurance by suggesting that myths and stereotypes about how a sexual assault victim should behave are limited to those that flow from and can be explained and understood by the science described by Dr. Haskell. Experience, however, tells us that the myths and stereotypes are not limited. Many different factors can cause a sexual assault victim to react and behave in ways different from what one would expect or assume.
(d) Impact on future cases
[41] In D.D., at para. 56, the Supreme Court issued a caution regarding the introduction of expert evidence:
Finally, expert evidence is time-consuming and expensive. Modern litigation has introduced a proliferation of expert opinions of questionable value. The significance of the costs to the parties and the resulting strain upon judicial resources cannot be overstated. When the door to the admission of expert evidence is opened too widely, a trial has the tendency to degenerate into “a contest of experts with the trier of fact acting as referee in deciding which expert to accept” [Citations omitted.]
[42] I do not agree that expert evidence is required in order to understand jury instructions. The purpose of jury charges is to instruct the jury on how to approach a legal issue. If expert evidence is found to be necessary to explain certain jury instructions, it will likely be sought in many cases. In sexual assault trials, juries will be presumed to require such evidence to be able to understand and apply the judge’s instruction on myths and stereotypes. This, in turn, will mean that the defence might choose to lead expert evidence as to what constitutes a trauma, the duration of the phenomena, factors that may or may not affect the way a particular victim might be expected to react, and factors such as training, health and the duration of the assault.
[43] Admitting expert evidence risks opening areas of cross-examination of a complainant that are undesirable. As explained by Dr. Haskell, a person responds to trauma by reflex and habit, and that habit comes from the personal experience of a person over a lifetime. In response, the accused could argue that the complainant’s experience and prior traumas are appropriate and relevant areas of cross examination as they go to how the expert evidence can be applied.
[44] The efficient use of court resources requires a well-crafted instruction to the jury regarding myths and stereotypes, combined with vigilance, to ensure that counsel do not seek to rely on or advance stereotypical reasoning. This is a better use of court time than calling expert evidence that seeks to explain the mechanisms behind various myths and stereotypes. This type of expert evidence risks distracting and confusing the jury and lengthens and complicates trials. As explained in D.D., at para. 67: “a jury instruction, in preference to expert opinion, where practicable, has advantages. It saves time and expense.”
[45] For all of these reasons, I conclude that the trial judge erred by admitting Dr. Haskell’s evidence.
(2) Did the trial judge err by failing to correct the crown closing?
[46] In closing submissions, the Crown referred to Dr. Haskell’s evidence. The Crown reviewed J.B.’s evidence about why she stayed in the hotel room, despite having the opportunity to leave. The Crown then referred to Dr. Haskell’s evidence about how a person may respond to a traumatic event like sexual violence by “freezing,” and invited the jury to apply “the lens of Dr. Haskell’s science lesson and you will have no trouble finding that…[J.B.] responded in the only way that [she was] capable of in that moment.”
[47] The appellant submits that this invited the jury to use Dr. Haskell’s evidence to “diagnose” the complainant and thereby enhance her credibility – an invitation that the jury’s questions suggest it accepted. He submits that the trial judge erred by failing to give a strongly worded corrective instruction.
[48] I do not read the Crown’s submissions as an invitation to use Dr. Haskell’s evidence to assist in its credibility analysis. The defence made submissions to the jury as well. During her closing address to the jury, the defence stated: “I fully expect the Crown Attorney will point to the evidence of Dr. Lori Haskell and suggest that one or both of these women behaved in unpredictable or apparently implausible ways as a result of trauma and that there is a psychological explanation for their failure to leave or act when they had the opportunity.” The defence was clearly aware of this and had the opportunity to address and respond to it. Instead, the defence submitted to the jury that “if Mr. Hoggard is, as the Crown posits, a violent rapist […] then he has every reason to believe that the moment he leaves the room those victims will flee or seek help given the opportunity.”
[49] The trial judge decided to allow both sides to refer to the expert evidence in their submissions. No objection was made by the defence until after the jury questions were addressed. In response to the jury’s questions, the trial judge decided not to refer back to the Crown closing and thereby re-emphasize it. Instead, she ensured that it would not be misused by emphasizing that the jury was not to “use Dr. Haskell’s evidence to explain the particular evidence in this case.”
[50] I see no error in this regard.
(3) Did the trial judge deliver an imbalanced charge?
[51] The appellant argues that the trial judge delivered an imbalanced jury charge because it focused on inconsistencies in Hoggard’s testimony, while omitting and downplaying inconsistencies in J.B.’s. The appellant relies primarily on the trial judge’s treatment of prior inconsistent statements.
[52] He argues that the trial judge provided potentially innocent explanations only for J.B.’s inconsistencies but did not do the same for the appellant’s. For example, in her cross-examination, J.B. initially denied telling anyone that she needed stitches after the sexual encounter and had hired a lawyer. Later, she admitted that she said both things to the appellant, but offered the explanation that she spent six years trying to block out what happened and forgot the details of the call.
[53] The trial judge then addressed the inconsistencies in the appellant’s testimony, saying that the jury could find he gave inconsistent accounts of certain aspects of the sexual activity, such as whether lubrication was needed. The appellant submits that this was unfair.
[54] The appellant also faults the trial judge for leaving out several other inconsistencies in J.B.’s testimony, such as whether the appellant kept her clothes away from her, and whether anyone knew beforehand that she was going to meet him.
[55] I do not agree that the trial judge’s charge was imbalanced. The trial judge highlighted inconsistencies in both the appellant and J.B.’s testimonies. The purportedly overlooked inconsistencies were not necessarily inconsistencies. J.B. clarified in cross-examination what she meant about the clothes, and that no one knew exactly where she was going; the fact that her friend knew she was going to Toronto does not render her statement about her whereabouts inconsistent. The trial judge told the jury to consider the explanations and added: “if you find that a witness deliberately lied to you in court, that is a very serious matter”. The instruction was fair and even-handed.
[56] I see no error here.
(4) Did the trial judge improperly admit discreditable conduct evidence?
[57] The appellant contends that a “twin set” of erroneous decisions led to the improper admission of discreditable conduct evidence at the J.B. trial. He submits that the trial judge erred by admitting damaging evidence and refusing a renewed severance application that would have kept the evidence about M.B. away from the J.B. jury.
[58] The trial judge initially rejected the application to sever the charges with respect to M.B. A year and a half later, the Crown applied to introduce M.B.’s evidence that the appellant had groomed and lured her in the months leading up to the charged conduct. The defence cross-applied and renewed the application for severance, arguing a change in circumstances. The trial judge granted the Crown application to introduce discreditable conduct evidence and dismissed the renewed application for severance. The trial judge told the Crown to “take steps to minimize prejudice, by limiting M.B.’s evidence to only what is necessary…and avoiding gratuitous detail wherever possible.”
[59] The appellant submits that the trial judge’s refusal to sever the J.B. and M.B. trials on the renewed application caused a miscarriage of justice because the uncharged discreditable conduct of grooming an underage girl, M.B., would likely prejudice the charges involving J.B.
[60] The appellant also argues that the decision was unjudicial because it was unreasonable.
[61] I do not accept these submissions.
[62] The appellant’s electronic flirting and related conduct with M.B. prior to meeting at the hotel was relevant to understanding and assessing M.B.’s evidence about what happened and how she reacted, as well as to assessing the Crown’s similar act application. The trial judge was aware of the prejudice and ordered the Crown to avoid using prejudicial labels such as “grooming”, “luring” and “possession of child pornography” before the jury, to limit M.B.’s evidence to “only what [was] necessary to explain her understanding of the relationship” and to avoid “gratuitous detail wherever possible”.
[63] The trial judge’s decision to refuse severance despite admitting the appellant’s prior discreditable conduct towards M.B. was a reasonable exercise of her discretion. The trial judge properly articulated and considered all the factors relevant to severance and concluded that the interests of justice favoured a joint trial. Pursuant to the test in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, it was open to the trial judge to find that the probative value of the evidence was high: the application consisted of two complainants with no apparent motive to fabricate who independently testified to degrading acts of sexual violence which bore features of similarity that defied coincidence.
[64] The trial judge did not improperly admit the discreditable conduct.
(5) Should the curative proviso be applied?
[65] The curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, allows the court to dismiss an appeal from conviction where “no substantial wrong or miscarriage of justice has occurred”. In my view, this is such a case.
[66] The Crown submits that, if Dr. Haskell’s evidence should not have been admitted, the provisions of s. 686 should apply because there was no substantial wrong or miscarriage of justice.
[67] The appellant submits that the questions posed by the jury suggested that they used the evidence in a way that they were cautioned not to. He also submits that the risks of improper reasoning were heightened by the fact that J.B.’s evidence made reference to concepts and terminology which were also discussed by Dr. Haskell. For example, J.B. testified that listening to the recording of the phone call she had with the appellant was “traumatizing” and when defence counsel questioned her about her recollection of the call, she characterized the encounter as a “traumatic event.” She also explained that she did not call a friend and indicate where she was during the alleged assault because “[t]he whole thing was so traumatizing that it’s very difficult to think rationally and make rational decisions.”
[68] There are two categories of error that will be subject to the proviso: (1) where the error is so harmless or minor that it could not have had an impact on the verdict, or (2) where there are serious errors that would justify a new trial (or an acquittal) but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34, citing R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239. On the second category, depriving the accused of another trial is “justified on the ground that the deprivation is minimal when the invariable result would be another conviction”: R. v. S.(P.L.), [1991] 1 S.C.R. 909, at p. 916; see also Khan, at para. 31.
[69] There are several factors that lead me to conclude that there was no substantial wrong or miscarriage of justice in this case.
[70] The trial judge provided a lengthy charge about myth-based reasoning. The charge was repeated to the jury on more than one occasion. She instructed the jury not to make assumptions about what a sexual assault complainant might do or say. As I have explained, this instruction makes the expert evidence unnecessary. But the evidence did not negate what the trial judge said. The trial judge linked the expert evidence to this instruction by highlighting that it was led for a limited purposed and “cannot provide any help regarding whether or not a traumatic event occurred”. The jury was also instructed that the testimony could not be used to diagnose the complainant’s behaviour or to conclude that the behaviour is consistent with having been sexually assaulted.
[71] After the jury questions disclosed the possibility of misuse of the evidence, the trial judge:
- Repeated her caution and told the jury that the evidence could not be used to directly assess the evidence of the complainants;
- Told the jury that the evidence could not be used to decide what happened;
- Explained that Dr. Haskell’s evidence played a very small role in the case and referred the jury back to the limited purpose in her charge.
[72] The appellant says that J.B.’s use of the words “trauma” and “traumatizing” which mirrored Dr. Haskell’s evidence caused prejudice that could not be undone. I do not agree. There is no issue that a sexual assault is traumatizing and would be described as such by a complainant. Moreover, the word “trauma”, and its derivatives, were used throughout the trial, including multiple times in the jury charge and in the answer to the jury questions.
[73] After the trial judge had concluded the answers to the questions regarding Dr. Haskell’s evidence, the jury continued to deliberate for five days. Although other questions were submitted, none referred to Dr. Haskell’s evidence. The fact that the jury verdict acquitted all charges with respect to M.B. confirms my view that the jury understood the answers to their questions and did not misuse Dr. Haskell’s evidence.
[74] Consequently, I am satisfied that no substantial wrong or miscarriage of justice occurred with respect to the charges involving J.B. and the curative proviso should be applied.
CONCLUSION
[75] I would dismiss the appeal.
Released: August 16, 2024 “ P.R. ” “ M.L. Benotto J.A.” “I agree. Paul Rouleau J.A.” “I agree. Thorburn J.A.”
