Court File and Parties
Ontario Court of Justice
Date: November 20, 2014
Sault Ste. Marie Court File No.: 907
Between:
Her Majesty the Queen
— and —
Samuel St. Amand
Before: Justice John Kukurin
Heard on: March 31 and November 12, 2014
Ruling released on: November 20, 2014
Counsel
D. Kirk — counsel for the Crown
M. Bennett — counsel for the defendant S. St. Amand
Reasons for Ruling
KUKURIN J.
Introduction
[1] These are Reasons for my Ruling on issues arising during the course of a sentencing hearing of the accused. This Ruling is on the issue of the qualification of Dr. P. Valliant as an expert witness in psychological evaluation and risk assessment.
Background
[2] On March 31, 2014, the accused appeared before me and entered a plea of guilty on a charge of making available child pornography, contrary to s. 163.1(3) of the Criminal Code. The crown had elected to proceed by indictment, as a result of which, the accused was liable to a sentence of imprisonment not exceeding ten years and a minimum sentence of imprisonment of one year. The accused had elected to proceed in the Ontario Court of Justice. A sentencing hearing ensued. Facts were not read into the record by the crown. Instead, the crown called two witnesses, both police officers, to establish the elements of the offence, and the background and circumstances in which it was committed. Both were cross examined by defence counsel. The sentencing hearing was then adjourned with a pre-sentence report ordered. The adjournment was also to permit the attendance, on a later date, of a psychologist as a defence witness as he was not able to be present at the time.
[3] The sentencing hearing resumed on November 12, 2014. The crown had no further evidence on the sentencing hearing. The defence called the accused as its first witness and he was questioned in chief. Counsel for the accused indicated that the accused might, or might not, bring a Charter argument. The basis of the argument, if brought, was that the minimum punishment provision of s. 163.1(3) was unconstitutional under the Charter, as it related to this particular accused for this particular offence. However, counsel for the accused could not commit to whether such an application would be brought until all of the evidence on the sentencing hearing was heard.
[4] At this point, counsel for the crown declined to proceed with a cross examination of the accused. His argument was that whether a Charter application was brought would affect how he would address his questions in cross examination, to the accused, and possibly also to other witnesses called on the accused's behalf. The crown intimated that bringing such an application at the conclusion of a sentencing hearing was tantamount to an ambush on the crown.
[5] The accused argued that whether such an application would or would not be brought could not yet be decided. It was dependent on what the witnesses who were being called by the accused would say in their testimony, particularly in their cross examinations.
[6] With the day already half gone with the accused's testimony in chief, and with the psychologist, Dr. Valliant (who had travelled from another city to be here) waiting in the wings, counsel advised the court that it was the intention of the defence to have Dr. Valliant qualified as an expert witness in psychological evaluation and risk assessment. For reasons, apart from time constraints, the testimony of Dr. Valliant with respect to the issues in this sentencing hearing could not be accommodated this day. However, since he was already here, he was questioned by counsel on the issue of whether he would or would not be qualified as an expert witness.
Dr. Valliant's Qualifications
[7] Exhibit 1 filed in this voir dire is the curriculum vitae of Dr. Valliant, setting out his academic qualifications, his work history, his publications and memberships in professional bodies. He indicated that the percentage breakdown of his occupation is teaching (50%), research (25%) and practice (25%). He has engaged in his professional vocation since 1978, some thirty five years in all. He considers himself, foremost among his areas of knowledge and practice, as a forensic clinical psychologist.
[8] Dr. Valliant received his undergraduate (Hon. B.A.) and his Masters (M.A.) and Doctoral (Ph.D) degrees in the 1970's. He is, and has been, a registered psychologist in Ontario since 1983. He is a full member of Canadian, Ontario and American Psychological Associations. In the area of forensic psychology, he is full member of the American College of Forensic Examiners and holds diplomas from the American Board of Psychological Specialties (in Forensic Psychology) and from the American Board of Forensic Examiners. He has participated in continuing education attending workshops, mainly in the United States, most of which have been in the fields of forensic psychology, including risk assessment.
[9] His career as a psychologist has included positions in the forensic unit at the North Bay Psychiatric Hospital. He has been consulting psychologist at Cecil Facer, a youth correctional facility in Sudbury, at the Sudbury-Algoma Hospital, as well as to the Ontario Ministry of Correctional Services and to the federal Corrections Canada. In addition to these, he has a private practice providing general services to the public and to industrial corporations through their employee programs. Of significance to his intended testimony in the present case is his involvement throughout his career in the criminal and youth justice systems, in particular the preparation of forensic assessments, either on referrals from lawyers or ordered by the court. He estimates he has done as many as two thousand assessments over the years, many for Probation and Parole.
[10] He is currently a long standing university professor at Laurentian University and has taught and lectured at several other Canadian universities over the course of his career (Nipissing, St. Mary's, Windsor, Lakehead). He has authored, with others, an impressive collection of papers in several areas of psychology which he indicates have been peer reviewed, and which have been published in several well recognized Reports. This has been over three decades, and he continues his research currently in several areas involving criminal offenders.
Legal Framework for Expert Evidence
[11] The qualifying of the expert requires proof that:
a) this person has some special or particular knowledge of their subject; and
b) the subject they are expert in is a legitimate area of study.
From an academic and experiential point of view, I am satisfied of Dr. Valliant's credentials in the field of psychology, and in particular forensic psychology, and that these are legitimate areas of study. This does not, in itself, qualify him as an expert to give opinion evidence in this sentencing hearing.
[12] He lists, in his curriculum vitae, two court proceedings in which he was accepted as an expert witness. He says, in fact, that he has given evidence before in a number of court proceedings in which he was accepted as an expert witness, although these are not documented in his curriculum vitae. He indicated that he has been in court as a witness at least twenty times specifically with respect to risk assessments. Most often, these were in the context of a criminal case.
[13] There is an abundance of law with respect to expert evidence in court proceedings. Almost all is found in jurisprudence comprised of actual cases where courts were called upon to make evidentiary rulings. Typically, such rulings are made at the trial court level. Those that are appealed lead to pronouncements from appellate courts that provide not only guidance, but are also binding on the trial courts. The case law on expert evidence includes decisions from the Supreme Court of Canada. Expert evidence is one topic found in virtually every text on evidence.
[14] It is important to remember the context in which this ruling is being made before referring to the jurisprudence. Also to review basic evidentiary principles.
[15] In terms of context, this Ruling is with respect to expert evidence intended to be called in a sentencing hearing, not in a trial to determine guilt or innocence. The accused has already entered a plea of guilty. The relevance of the proposed expert testimony is to the sentence to be imposed. Although not specifically stated by counsel, it is a fair inference that the accused intends to elicit one or more opinions from this witness as an expert. One of these will unquestionably relate to the degree of risk of reoffending by the accused.
[16] The jurisprudence with respect to expert evidence in the criminal law context is heavily weighted on the admission of specific pieces of evidence, primarily opinion evidence, presented by the expert witness. This is not surprising, particularly with appellate decisions which almost invariably deal after the fact with evidence given by an expert witness in the trial court.
[17] Case law is more scant on the issue of the qualification of a person as an expert. Far fewer appellate decisions are concerned with the issue of whether the expert at trial was wrongly qualified as an expert, and even fewer yet with the issue of whether the expert tendered at trial was wrongly rejected as not qualified.
[18] The point to be made is that a person may be an "expert" in his or her field. That person may well meet the criteria for acceptance as an expert established in the jurisprudence. However, it may only be in the course of the proceeding that an issue arises as to whether the specific expert opinion evidence tendered by such person should be admitted. There may be various reasons why it should or should not, and these reasons are, more often than not, determined by the factual circumstances of specific case to which they apply. The judge has a well-recognized gatekeeper role, both in accepting the witness as an expert witness, as well as accepting what that witness has to say by way of an expert opinion. A person accepted as an expert does not have carte blanche in what he or she can opine. Our jurisprudence places on judges a gatekeeping role with respect to all evidence, and expert opinion evidence is included in that mandate. It is not a matter of admitting anything the expert says and simply assigning judicial weight to it. It is at times, refusing to admit it.
The Mohan Test
[19] In a general sense, the rule with respect to expert evidence can be summarized thus:
If specialized knowledge will assist the judge to understand the evidence or a fact in issue, a witness qualified as an expert by knowledge, skill, experience or training may testify by way of opinion. The expert must possess special knowledge and experience going beyond that of the judge. It is only admissible if it is needed to allow the judge to make sense of the evidence.
[20] Perhaps the most oft cited authority for admissibility of expert evidence is R. v. Mohan which sets out a four part test. The evidence must be:
Relevant;
Necessary in assisting the judge;
Not subject to an exclusionary rule; and
Given by a properly qualified expert
[21] Our jurisprudence overlays two other considerations on this test:
Does the proposed evidence achieve threshold reliability?
Does the probative value of the evidence outweigh any prejudicial effect of the evidence?
Relevance
[22] It need almost not be said that the expert opinion evidence must be relevant. Relevance must be determined in context, that is, in the context of the issues in the case and the other evidence presented in the case. In addressing whether the intended evidence is relevant, the following must be addressed:
Does the evidence prove or tend to disprove a fact in issue?
Is the opinion founded on proven facts?
Does the opinion support the inference sought to be made from it?
Is the matter that it proves in issue?
Is the evidence complex? Is it easily understood or likely to confuse?
How much time will the evidence consume? Does it justify the cost spent on it?
Necessity
[23] Expert evidence may be helpful in assisting the judge to make a determination. However, helpfulness or desirability is not enough. It must be necessary in the sense that it permits the judge to make sense of the evidence. An expert's opinion is not a substitute for a judicial determination. If the particular matter to which the expert opinion is tendered is within the competence of the judge to determine, the opinion of the expert, and the expert, are not needed. Some questions to ask that are helpful in determining necessity are:
Will the evidence allow the court to appreciate the technicalities of a matter in issue?
Will the evidence provide information likely to be outside the experience of the judge?
Is the judge unlikely to form a correct judgment about a matter in issue if unassisted by the evidence?
What is the complexity of the evidence? Is it easily understood or likely to confuse?
To what extent is other evidence available to assist in determining the issue?
Is the need for the evidence sufficient to overcome its potential prejudicial effect?
[24] Of course, the expert evidence must go to a material issue in the case. It must address something that is in issue, something that is more than simply peripheral or secondary.
Exclusionary Rules
[25] There are exclusionary rules that might render inadmissible certain expert testimony. However, there are none that apply in this case.
Expertise of the Expert
[26] With respect to the expertise of the expert, it is up to the party seeking to introduce the expert evidence to establish this. In the present case, I have previously addressed this criterion and indicated satisfaction with the evidence in this respect.
Threshold Reliability
[27] As for threshold reliability, the judge should assess the reliability of the proposed witness, the field of science, and the opinion offered in the particular case. Scientific validity is not a condition precedent to the admissibility of expert opinion evidence as most expert evidence routinely heard and acted upon in the courts cannot be scientifically validated. In his 2008 Report, Justice Goudge, after reviewing the case law, sets out the following factors that judges should focus on in determining threshold reliability (at pg. 495):
a) The reliability of the witness, including whether the witness is testifying outside his or her area of expertise;
b) The reliability of the scientific theory or technique on which the opinion draws, including whether it is generally accepted and whether there are meaningful peer review, professional standards and quality assurance processes;
c) Whether the expert can relate his or her particular opinion in the case to a theory or technique that has been or can be tested, including substitutes for testing that are related to the particular discipline;
d) Whether there is a serious dispute or uncertainty about the science and, if so, whether the trier of fact will be reliably informed about the existence of that dispute or uncertainty;
e) Whether the expert has adequately considered alternative explanations or interpretation of the data and whether the underlying evidence is available for others to challenge the expert's interpretation;
f) Whether the language that the expert proposes to use to express conclusions is appropriate, given the degree of controversy or uncertainty in the underlying science; and
g) Whether the expert can express the opinion in a manner such that the trier of fact will be able to reach an independent opinion as to the reliability of the expert's opinion.
Cost-Benefit Analysis
[28] The Ontario Court of Appeal set out an admissibility test for expert evidence. The first step is essentially the Mohan test. The second part of the test deals with the gatekeeper role of the trial judge. The trial judge at this second stage should engage in a thorough case-specific cost-benefit analysis. In making this determination the court should also consider the reliability of the evidence. Does the probative value of the evidence outweigh any prejudicial effect of the evidence?
Application to Dr. Valliant's Evidence
[29] A psychological assessment of the accused was done in this case by Dr. Valliant. Regrettably, the report of this assessment has not been filed as yet in this sentencing hearing although both counsel are privy to its contents. Despite this, there is enough information for the court to infer that Dr. Valliant's testimony will address those aspects of his psychological assessment that are germane to character, personality and psychological makeup of the accused. In this regard, the expert evidence is relevant to the main issue in this hearing, namely sentencing.
[30] Section 721 of the Criminal Code deals with the pre-sentence report (PSR). Subsection 721(3) sets out what the information the PSR should contain. Among these contents are the offender's "age, maturity, character, behaviour, attitude and willingness to make amends". Many of these mandatory considerations are tied to the psychological makeup of the individual involved. While certain aspects such as "age" are purely factual, most of the others are mixed fact and opinion, or perhaps purely opinion based on stated or unstated observations of the probation officer preparing such report. It would be odd indeed that a sentencing judge would consider the opinion of a probation officer about certain aspects of the offender but be precluded from considering the same or similar aspects coming from a psychologist with considerably more expertise and likely experience in assessment of offenders.
[31] In fact, PSR's often contain recommendations as to sentence. One of the elements that factors into these recommendations is the author's assessment of the risk of re-offending by the offender who is the subject of the PSR. This is precisely the kind of information that Dr. Valliant will unquestionably be asked to provide. Clearly, the level of risk of re-offending is germane to what sentence is to be imposed. It is a logical consideration in the sentencing court's application of s. 718 (the purpose of sentencing), particularly the objectives of specific deterrence, rehabilitation, promotion of a sense of responsibility and an acknowledgement of harm done to victims and to the community.
[32] Can the court complete its sentence without Dr. Valliant's testimony. It is unlikely that it can if the assessment report is introduced as evidence at this sentencing hearing. There is every indication that it will be. Reports of this kind are not unique in sentencing hearings. Under s. 34 of the Youth Criminal Justice Act (YCJA), for example, a psychological assessment report can be ordered by the court. One of the purposes for doing so is statutorily stated in s. 34(2)(c) as the "making or reviewing a youth sentence". Such a report becomes, pursuant to s. 34(11) YCJA, part of the record in the case in which it was requested. There are parallels in the adult system. In this case, there has been no order for such a report to be made. However, it was known from this past spring, or perhaps even earlier, that an assessment was being done and a report would be prepared. Psychological assessments prepared by professionals such as Dr. Valliant, are typically based on psychometric testing and on clinical evaluation. The court is not able to interpret the instruments or psychometric tests as to what they portend as far as risk of re-offending is concerned. Even less is the court able to know how an expert does his or her clinical evaluation and how that translates to an expert opinion or conclusion. In short, there is a need for Dr. Valliant to be here to present and explain what he has done, what he has observed, and what he believes as to those aspects of the accused that the court has to consider in the sentencing process.
[33] I do not see a down side to having Dr. Valliant testify as an expert. His opinions can be excluded if they are not admissible for some reason; they can be admitted but discounted if that is appropriate, or they can be taken at full value. I have not heard anything that leads me to conclude at this point that the prejudicial effect of permitting Dr. Valliant's expert evidence outweighs its probative value.
Conclusion
[34] The four pre-requisites from Mohan are satisfied. The cost benefit analysis does not preclude having Dr. Valliant testify. As for threshold reliability, this will depend on what evidence he will present to this court. At the moment, it appears to be from a well-qualified person, who has provided similar evidence in other cases, whose areas of expertise are in areas which are central to some of the considerations that the court is mandated to take into account, and whose discipline is well recognized as a legitimate one in our society, even by our governments.
[35] Accordingly, my ruling is that Dr. P. Valliant is qualified by this court as a forensic clinical psychologist to provide opinion evidence on the psychological assessment of the accused and on his risk to re-offend.
Released: November 20, 2014
Justice John Kukurin, Ontario Court of Justice
