Court Information

Information No.: Y 14-7920

Ontario Court of Justice – Youth Criminal Justice Court

In the Matter of the Youth Criminal Justice Act, S.C. 2002, c.1

Her Majesty the Queen v. R.J.

Ruling on Pre-Trial Motion

Given Orally by the Honourable Justice J.S. Brunet on Tuesday, December 16, 2014, at Ottawa, Ontario

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INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 110 AND 111 OF THE YOUTH CRIMINAL JUSTICE ACT

Appearances

• B. Lee-Shanok – Counsel for the Crown
• D. Baum – Counsel for R.J.

Ruling

Brunet, J.:

All right, so returning to the R.J. matter, the issue being the qualification of the witness who just testified, Ms. Donna Lee, in terms of how her qualifications and the evidence that she gave surrounding those qualifications fit or don't fit into R. v. Mohan, [1994] 2 SCR 9, a decision that was penned by Justice Sopinka, who everyone who has practised law in this country in the last 20 years knows that he was the expert on issues surrounding evidence, so it has become a leading case with respect to determining whether experts testify at trials or not, and the parameters of that.

Essentially, Justice Sopinka indicated that the admission of expert evidence depends on the application of four criteria:

1. Relevance;
2. Necessity in assisting the trier of fact;
3. The absence of any exclusionary rule; and
4. A properly qualified expert.

So relevance is the threshold requirement as explained by Justice Sopinka, and at paragraph 18 of the judgment he explains the relevancy component being as whether the value is worth what it costs. In other words, the court has to go through a cost benefit analysis in determining whether the relevancy threshold has been met.

"Evidence that is otherwise logically relevant may be excluded if its probative value is overborne by its prejudicial effect, if for example it involves an inordinate amount of time which is not commensurate with its value, or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability."

So that is a summary of the criterion to look at on the issue of relevancy.

In this particular case I'm satisfied that the evidence of Ms. Donna Lee is relevant. She testified at some length with respect to her professional qualifications and her experience in the domain of dealing with people with intellectual disabilities. It is not an area that I can say is irrelevant, given the comments of counsel and my understanding of this case.

The case is not one where the evidence is likely to confuse or confound the court. Rather, I find that it is more likely to assist the court in its fact-finding mission. And of course the difference here is that in the Mohan case that was a jury trial, and there's a lot of emphasis about making sure that there are not inappropriate suggestions in evidence, or irrelevance of evidence, because it may mislead the jury. This being a trial by judge alone, and the risk is lower, although I will certainly keep in mind the Mohan issues as we go along, as I'm sure counsel will as well.

For example, as I will return to the issue, that no evidence is to be led that would fall under the rubric of oath-helping or credibility, but I will return to that factor.

All that to say I'm satisfied that the evidence to be admitted here would meet the relevance criterion of Mohan.

The second criterion is necessity in assisting the trier of fact, and at paragraph 22 of the Mohan decision Justice Sopinka states as follows:

"What is required is that the opinion be necessary in the sense that it provide information 'which is likely to be outside the experience and knowledge of a judge or jury....'"

Justice Sopinka continues a little bit later on in the same paragraph to state, in quoting another case:

"'....[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge'"

And then Justice Sopinka goes on to refer to the R. v. Lavallee case, a well-known decision from the Supreme Court of Canada where there was expert evidence admitted with respect to the state of mind of a battered woman, and His Honour uses that example to stress that that was an area that was not understood by the average person.

Once again Justice Sopinka points out at paragraph 23, the same thing that I was referring to a few moments ago, that as in the case of relevance, the need for the evidence is assessed in light of its potential to distort any fact-finding process, and the court has to be careful of that.

In the case of Mohan again, which was a jury case, it was found that the possibility that evidence might overwhelm a jury and distract them from their task at hand can be alleviated by proper instructions, and I find that that is the case here in the sense that the court can be careful to ensure that the evidence does not overwhelm the court in its fact-finding function, and that it's not a case where a contest of experts will essentially usurp the trier of fact's role, and I repeat that expert evidence as to credibility or oath-helping can be excluded on that basis, and I'm not understanding that that is the type of evidence to be led here.

So I find that, all that to say that the necessity criterion has been made as well, pursuant to the discussion of Justice Sopinka in R. v. Mohan.

The third criterion is the absence of any exclusionary rule, which is described at paragraph 26 of the Mohan decision. There's not an exhaustive list of what the exclusionary rules would be, but there's an example from the R. v. Morin case, [1988] 2 SCR 345, where there was evidence that was essentially inadmissible that the Crown was trying to get an expert opinion on.

There's no exclusionary rule in this particular case that has been brought to my attention or that appears to be in any way evidenced at this stage, so I'm not concerned about that criterion either.

The last criterion is whether there is a properly qualified expert that is being proffered here, and at paragraph 27 of R. v. Mohan Justice Sopinka says:

"Finally the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify."

I note that this particular witness, Ms. Lee, does have, according to her evidence and her curriculum vitae which was filed as an exhibit, both relevant study and a number of years of experience. I know the Crown referred to the number of years. In any event, it was in excess of 20 years of experience in the area of dealing with persons with intellectual disabilities and communication issues, and training issues, and assessment issues.

I take defence counsel's point that this is an area that is not regulated, like other experts, accountants, doctors, et cetera. However, that does not appear to be a necessity, if I can reuse that word again, dealing with the issue of whether the expert is properly qualified.

As we saw from Lavallee and some comments from the Crown as well, it's not in every case where the particular expert is governed by rules or regulations with respect to how the evidence is tested, and the Crown gave the example of police officers who can be qualified as experts in certain situations.

I am satisfied that the expert is properly qualified. I do agree that the lack of a governing body and regulation may affect weight, but it does not affect admissibility.

So all that to say, I find that Ms. Donna Lee meets the criteria at R. v. Mohan, and I will allow her to be qualified as an expert.

Court Adjourned

Certification

CERTIFICATE OF TRANSCRIPT

EVIDENCE ACT, subsection 5(2)

I, Elizabeth Logan, certify that this document is a true and accurate transcription produced to the best of my skills and ability of the recording of R. v. R.J. in the Ontario Court of Justice, Youth Court, held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411 - 03-20141216, which has been certified in Form 1 by Lorraine Parent.

Date: [As signed]

Elizabeth Logan

PHOTOCOPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED UNLESS AFFIXED WITH THE ORIGINAL SIGNATURE OF THE REPORTER.

Ontario Regulation 158/03 - Evidence Act