Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Abdulwahed Shehaib

Before: Justice J. David Wake

Heard on: January 27, February 1 and February 9, 2012

Reasons for Ruling on Voir Dire released: March 12, 2012

Counsel:

• Ms. L. Tansey-Miller for the Crown
• Ms. C. Saad for the accused Abdulwahed Shehaib

WAKE J.:

Factual Background

[1] On January 9, 2012 the accused entered a plea of guilty to a charge of criminal harassment and to a charge of breach of probation.

[2] The criminal harassment occurred between September 1 and 19, 2011 in relation to a woman with whom the accused had been involved in an intimate relationship in the past.

[3] The accused was previously convicted of criminal harassment on June 8, 2011 in relation to another woman, his estranged wife. On September 1, 2011 he was released from jail after serving a 128 day sentence on the criminal harassment charge and other offences stemming from the same incident.

[4] At the sentencing hearing before me the Crown sought to introduce as expert evidence the opinion of Detective Sergeant Kelly Grubb of the Ontario Provincial Police who prepared a threat assessment report in relation to the accused.

[5] The accused's counsel, Ms. Saad, objected to the introduction of this evidence and on January 27, 2012 and February 1, 2012, I conducted a voir dire as to the admissibility of this evidence. Following submissions on February 9, 2012, I dismissed the Crown's application and undertook to provide written reasons. These are those reasons.

Evidence on the Voir Dire

[6] Detective Sergeant Grubb testified on January 23, 2012 and February 1, 2012. His curriculum vitae and report were filed as exhibits on the voir dire. He testified that he is a Detective Sergeant with the O.P.P.'s behavioural sciences and analysis section in the threat assessment unit where he has been since 2003.

[7] He testified that the report he prepared, dated November 21, 2011, was in response to a request from Detective J. Bonin of the Ottawa Police Service in relation to the accused. The report was "to assist them determining what type of resources should be dedicated to the accused's supervision at the conclusion of a custodial sentence" and "what type of services would be most effective to secure the complainant of the latest offence".

[8] In response to a question from the Crown, Ms. Tansey-Miller, he drew a distinction between the purpose of this report from a report prepared for sentencing. In Detective Sergeant Grubb's C.V. he lists only two occasions when he was qualified to present expert evidence of threat assessment, categorization of risk and suggested methods of intervention, once at a sentencing hearing in 2007 and once at a bail hearing in 2008. I will have more to say about these entries later in this Ruling.

[9] Detective Sergeant Grubb was provided with a memo from Detective Bonin, a threat assessment checklist, the accused's criminal record and a number of occurrence reports pertaining to the accused. Some reports involved charges against the accused and some did not. Some involved the accused as a complainant. Detective Sergeant Grubb did not have the agreed statement of facts filed in court in relation to the June 8, 2011 sentence or any transcripts of what transpired in court.

[10] Detective Sergeant Grubb assessed the risk posed by the accused in relation to both his estranged wife and the complainant in the charge before me based only on the material provided by Detective Bonin. He was unaware of a forensic psychiatric report prepared by Dr. Helen Ward of the Royal Ottawa Hospital at the time he prepared his report.

[11] Detective Sergeant Grubb's assessment utilized the spousal assault risk assessment guide (SARA). His report indicated that SARA is a clinical checklist of risk factors for spousal assault. It comprises 20 individual items identified by an extensive review of the empirical literature and by review of articles written by clinicians with extensive experience in evaluating people who abuse their partners. He identified 10 of the 20 indicators as being present in this case.

[12] Under the heading of "Other Considerations" he relied on the RECON (relationship and context based) typology of an "Intimate Stalker" as developed by Mohandie et al (2006). Detective Sergeant Grubb advanced the view that "as far as stalking behaviour is concerned, in my opinion, approached behaviours are the most concerning because they actually put the individual in proximity to the intended target, the intended victim". When asked to clarify this opinion, he contrasted approached behaviours with the risk presented by repeated telephone communications. In his view, approached behaviours have a higher level of risk associated with them.

[13] Detective Sergeant Grubb was asked by the Crown whether he assigned weight to each piece of information differently in his report depending on whether there had been a finding of guilt or not. His response was that if he did not have anything to contradict the information in the occurrence report, he would apply the same weight whether there was a finding of guilt or not. He elaborated this position in cross-examination that if an allegation did not lead to a charge or a conviction, he would contact the investigating officer and get more information.

[14] He agreed with the suggestion that at best the SARA had only moderate predictive accuracy of future violence.

[15] He also stipulated in his report that the accuracy of the threat assessment was "dependent upon the completeness and reliability of information submitted for analysis".

Analysis

The Mohan Test

[16] The admission of expert evidence is subject to the four-part test from R. v. Mohan that the proffered evidence is:

1. relevant;
2. necessary;
3. not subject to any applicable exclusionary rule; and
4. to be advanced through the testimony of a properly qualified expert.

[17] In addition to being satisfied that these four criteria have been met, I must evaluate the relative costs and benefits of admitting the evidence. This is commonly known as the gate-keeper function of the trial judge. In R. v. Abbey the Ontario Court of Appeal restructured the admissibility test and suggested that pre-conditions for admissibility be determined first and the balancing function be performed second as opposed to being considered as part of the enquiry into relevance and necessity. That is how I propose to approach my task in determining whether this evidence should be admitted.

[18] I should also note here that a threshold of reliability must be met before the evidence is admitted. In the Macfadyen Lecture 2011 The Honourable Thomas A. Cromwell noted the following:

"Canadian law now requires trial judges to play the role of gate-keepers by ensuring that expert evidence meets a threshold of reliability before it is admitted into evidence."

After citing the four Mohan criteria he went on to state:

"While the reliability (in the legal sense), of the evidence is not one of the four elements of this test, reliability nonetheless is considered in relation to three of these four elements, relevance, necessity and the expert's qualifications."

(1) Relevance

[19] While I have some concerns about the relevance of a report prepared for police case management purposes as opposed to sentencing purposes, I will deal with this issue under the gate-keeping step.

(2) Necessity

[20] In R. v. D. (D.) at para. 57 Sopinka, J. adopted a general approach to the principle of necessity as stated by Professor Paciocco (as he then was) who cited the costs associated with expert evidence (to be dealt with in the gate-keeper's step) and concluded:

"When should we place the legal system and the truth at such risk by allowing expert evidence? Only when lay persons are apt to come to a wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learning of experts. As Mohan tells us, it is not enough that the expert evidence be helpful before we will be prepared to run these risks. That sets too low a standard. It must be necessary. (D. Paciocco, "Expert Evidence: Where Are We Now? Where Are We Going?" (1998), at pp. 16-17)."

[21] I find that Detective Sergeant Grubb's evidence falls well short of the requirement for necessity. It is hardly surprising, for instance, that an "intimate stalker" who exhibits "approach behaviours" presents a higher risk than one who merely makes contact by telephone. An accused who approaches his ex-girlfriend and engages in direct contact with her will present a higher risk than one who communicates by telephone. This is only common sense.

[22] Similarly, I see very little in the ten SARA factors which Detective Sergeant Grubb found to be present in this case that would not be part of the checklist of factors to be advanced by a Crown Attorney prepared for sentencing submissions directed at the accused's risk of re-offending:

1. history of violence;
2. and (3) breach of court orders and no contact orders;
3. unstable relationships;
4. employment problems;
5. sexual jealousy;
6. minimization and denial i.e. refusal to take responsibility; and
7. attitudes that minimize or condone spousal assault.

[23] The remaining two factors: (1) Homicidal Ideation; and (2) past physical assault of an intimate partner, are factors which are not yet proven and relate to an alleged threat to kill his estranged wife and that he assaulted her. It is obvious that if the allegations contained in the occurrence report were proven then, together with the other factors, the accused would present as a high risk to re-offend barring other evidence which might attenuate that conclusion. The point is, I do not require "expert" evidence relying on a categorization scheme to assist me in coming to my own determination of the risk presented by the accused to re-offend in a violent way.

[24] I note from reading a transcript of R. v. Lemieux which is the sentencing case referred to by Detective Sergeant Grubb in his CV referred to above that my brother judge, Dempsey J., while accepting Detective Sergeant Grubb's qualifications on consent, nevertheless refused to admit his evidence on the same basis – the lack of necessity.

[25] Given my finding it is unnecessary for me to go any further, but the matter has been fully litigated so I will continue to consider the remaining two pre-conditions of admissibility as well as my role as a gate-keeper.

(3) Exclusionary Rule

[26] Without a factual basis, the opinion of the expert has no evidentiary value, see R. v. Abbey and R. v. Boucher. While an expert may rely on hearsay evidence informing her opinion, it is suggested in McWilliams' Canadian Criminal Evidence, 4th Edition at pg. 12-24 that:

"the Mohan decision and indeed most of its progeny deal with rulings in the course of the guilt/innocence phase of a criminal trial. A statutory dilution of admissibility criteria, as in the instance of a bail hearing, may allow admission of expert opinion evidence in circumstances falling short of full compliance with the Mohan criteria."

[27] Ms. Tansey-Miller for the Crown submits that by virtue of ss 723(5) and 726.1 of the Criminal Code of Canada that hearsay evidence is admissible and the Court shall hear any relevant information before it at sentencing proceedings.

[28] However, it would not appear that the "statutory dilution of admissibility criteria" applicable to a bail hearing extends to sentencing. In R. v. Levesque Gonthier J. writing for the majority stated at paragraph 31:

"Another specific characteristic of the sentencing process that should be emphasized is the importance of opinion evidence. At the sentencing stage, judges must often consider reports prepared by probation officers, correctional service officers, psychologists or psychiatrists reporting their opinions concerning the personality of the accused, and his or her chances of rehabilitation and risk of reoffending. As I have already noted, the probative value to be assigned to an expert opinion is directly related to the amount and quality of admissible evidence on which it relies: Lavellee, supra, at p. 897."

[29] The lone dissenting opinion in that case was by Arbour J. who criticized the majority decision applying the general rule governing the inadmissibility of hearsay evidence at trial "where considerations of probative value are critical to the presumption of innocence and the fundamental fairness of the trial process" to the sentencing "environment".

[30] Nevertheless, it is well established that in the sentencing hearing the Crown must prove any aggravating facts beyond a reasonable doubt. See R. v. Gardiner. One of the factors repeatedly relied on by Detective Sergeant Grubb in his report is an alleged statement by the accused to a Children's Aid Service worker, noted in an occurrence report, that he had sought and obtained permission from his estranged wife's family to kill her due to her infidelity. This notation seems to have been taken at face value by Detective Sergeant Grubb and undoubtedly informed his opinion. It was not included in the evidence before me on the sentencing hearing. Undoubtedly such a remark would raise a high level of concern if shown to have been a genuine threat, again emphasizing the lack of necessity of Detective Sergeant Grubb's opinion; however, the context of the remark or even the remark itself, is not in evidence before me and therefore the opinion based upon it, at least in part, has no evidentiary value.

(4) Properly Qualified Expert

[31] Although Detective Sergeant Grubb's expertise was conceded by the Respondent, it remains for the Court to qualify a witness as an expert. It is not altogether clear as to what area the Court is being asked to qualify him as an expert. If it is sought to have him qualified as an expert in threat assessment, category of risks, and suggested methods of intervention for police case management purposes then I would qualify him for that purpose. If it is sought to have him qualified as an expert in those areas for sentencing purposes, then I would not. I say this for three reasons:

(1) The methodology required for the two purposes is decidedly different. While it may be legitimate enough for police case management purposes to take all allegations and information at face value in assessing risks, such an approach would stand the sentencing process on its head where all aggravating facts have to be proven beyond a reasonable doubt. An example of this is the methodology Detective Sergeant Grubb would employ in relation to occurrence reports where no charges were ever laid against an accused or an acquittal resulted. In assessing risk he would go behind the court disposition and get further information from the investigating officer. This approach would seem to ignore the Supreme Court of Canada's holding in R. v. Grdic as clarified in R. v. Mahalingan to the effect that issues decided in the accused's favour, whether on the basis of a positive factual finding or a reasonable doubt, are the subject of issue estoppel. Although none of the occurrence reports deal with an acquittal in this case, the difference in the appropriate methodology for the two purposes, police case management and sentencing, can readily been seen. In fact, Detective Sergeant Grubb noted that the occurrence from April 26, 2011 involved the accused manoeuvring his vehicle in such a fashion that a police officer had to jump out of his way and then point his firearm at the accused as the accused drove his vehicle directly at the police officer. The fact that charges of aggravated assault of a police officer, dangerous operation of a motor vehicle and operating a motor vehicle while pursued by police resulted only in a conviction for the latter was dismissively noted by Detective Sergeant Grubb as being the result of a plea arrangement.

Risk assessment for sentencing purposes cannot look behind the withdrawal of charges so easily.

(2) This leads to the second reason for not accepting Detective Sergeant Grubb's qualifications for sentencing purposes and that is the lack of impartiality in his approach. Not only did he rely exclusively on information provided by Detective Bonin but he relied on all aggravating features in the occurrence reports at face value. Recently Trotter J. in R. v. K. (L.) reviewed the law on the partiality of proposed expert witnesses and then quoted from McWilliams' supra at page 12:58:

"The expertise qualification criterion is undoubtedly the traditional inquiry associated with expert witness qualification. However, qualification has broader implications – competence or fitness to testify as an expert. Whether a witness should be afforded the testimonial privilege of expressing an expert opinion includes a broader notion of whether the witness is suited to do so based on impartiality, independence and lack of bias. These factors can affect reliability every bit as much as expertise prerequisites."

(3) The third reason for rejecting Detective Sergeant Grubb's qualifications for sentencing purposes is the reliability factor which will be dealt with below in relation to the gate-keeper function.

(5) Gate-keeper Function

[32] In the Special Lecture 2003: the Law of Evidence, Justice Ian Binnie lamented that: "one of the reasons for the excessive lengths of trials these days is the tendency not only to adduce formal proof of what everyone knows, but to call a series of experts to provide blinding flashes of insight into the obvious."

[33] In Johnson v. Milton (Town) Moldaver J.A. disapproved of the "let-it-all-in" approach to the admissibility of expert evidence, at paragraph 48 and 49 he stated:

"[48] Recognizing, as I do, that expert evidence may not fit neatly into watertight compartments in every case and that shades of grey will inevitably exist, trial judges should do their best to perform the gate-keeper function they have been assigned, if for no other reason than trial economy. Permitting experts to give evidence on matters that are commonplace or for which they have no special skill, knowledge or training wastes both time and resources and adds stress to an already overburdened justice system. It is also legally incorrect.

"[49] Apart from trial economy, trial judges who fail to properly perform their gate-keeper function run the risk of having their decision-making function unsurped or severely eroded by "expert generalists" who profess to know something about everything and who are only too willing to provide the court with a ready-made solution for any contentious issue that might exist. The problem with such witnesses is that while they appear knowledgeable and generally come across well, upon closer scrutiny, their opinions may well turn out to be little more than concoctions consisting of guesswork, speculation, commonplace information and junk science, with a hint of valid science thrown in for good measure."

[34] Evidence of threat assessment based only on the SARA, as in this case, has very little, if any, precedent. Ms. Tansey-Miller has referred me to the dissenting opinion of MacPherson, J.A. in the 2003 decision of R. v. White where he held that the trial judge was entitled to attach weight to the opinion of the complainant and a threat assessment prepared by a detective sergeant from the same unit as Detective Sergeant Grubb. It does not appear that admissibility of the evidence was challenged. A threat assessment referred to by a psychiatrist in the context of a long term offender application in R. v. Archer was mentioned in passing. It did not seem to have been challenged either. The case stems from 1999. In R. v. Boyd, Forsyth J. noted that a threat assessment report from Detective Sergeant Grubb coincided with the defence psychologist's opinion that the accused was a high risk to re-offend. There does not appear to have been a challenge to the admissibility of these reports. There is one last case where a threat assessment was admitted but it was based on the ODARA - the Ontario Domestic Assault Risk Assessment – which was not used in this case. See R. v. Cummings (December 2, 2004, unreported, Superior Court of Justice Guelph).

[35] In short, I have been referred to no case where evidence of a threat assessment based on the SARA was admitted over a challenge to that admissibility. Given Detective Sergeant Grubb's own appraisal of the SARA as having only moderate predictive accuracy of future violence, I find that the reliability of this evidence is not compelling enough to justify its admission.

[36] Finally, on the issue of trial economy, I note that in this case the plea and sentence process has taken a full day of court time spread out over five court appearances and two months. One half of that time has been consumed by this Application, not including the time spent in drafting this Ruling. Detective Sergeant Grubb had to come from Orillia twice, the second time to allow completion of a rather lengthy cross-examination designed to undermine any weight to be attached to his opinion. Even if I am wrong with respect to my findings in relation to the four Mohan factors above, it is clear that the time spent eliciting this opinion was excessively disproportionate to any value or helpfulness in the sentencing process.

Conclusion

[37] In these circumstances the Application for the admission of Detective Sergeant Grubb's expert opinion evidence is dismissed.

Released: March 12, 2012

The Honourable Justice J. David Wake