WARNING

The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

The order which has been made does not relate to C.C., who is a complainant. It relates to another complainant.

Court Information

Ontario Court of Justice

Date: August 12, 2019

Court File No.: Ottawa 18-RD19579

Between:

Her Majesty the Queen

— and —

J.A.B.

Before: Justice Peter K. Doody

Ruling on Admissibility of Expert Evidence

Heard on: July 18-19, 2019

Reasons for Decision Released on: August 12, 2019

Counsel:

• Meaghan Cunningham — counsel for the Crown
• Lawrence Greenspon, Eric Granger and Ninetta Caparelli — counsel for the accused

Decision

DOODY J.:

[1] Introduction

[1] Crown counsel has proffered Dr. Deborah Sinclair as an expert witness. Her evidence was heard in a voir dire. This is my ruling on the admissibility of that evidence.

Context

[2] J.A.B. is charged with 19 offences – 2 counts of sexual assault with a weapon, 9 counts of assault, one count of uttering a death threat, one count of criminal harassment, 3 counts of unlawful confinement, 1 count of causing the complainant to take a noxious thing, 1 count of assault with a weapon, and 1 count of public mischief.

[3] The complainant C.C. testified that she met the complainant in 2006, when she was 20. They had been communicating for 4 years before that. She gave extensive evidence about the relationship since 2006, when she visited him in Toronto, lived with him in New Brunswick, broke up and reunited with him, travelled with him to Central America where they were married in 2011, and then travelled to Central Asia in 2012. In October 2012, they entered Afghanistan. They were captured and held in captivity until they were released in mid-October 2017. Within a few days, they were back in Canada.

[4] The offences are alleged to have occurred between October 14, 2017 and December 30, 2017 in Ottawa. The complainant in all but one of the offences was C.C.

Proposed Areas of Expertise

[5] At the beginning of Dr. Sinclair's testimony, Crown counsel filed a document entitled "Deborah Sinclair – Proposed Areas of Expertise". It lists the following:

(a) the definition and forms of domestic violence;

(b) the dynamics of an abusive relationship;

(c) traumatic bonding;

(d) coercive control;

(e) tactics used by abusers and the circumstances under which those tactics might change;

(f) the behaviour of victims of domestic abuse and strategies used consciously and unconsciously by victims to survive the abuse;

(g) how a shared traumatic experience between the abuser and victim, like being held in captivity for several years, might affect the dynamics and experience in an abusive relationship.

Questions Posed to Dr. Sinclair

[6] Dr. Sinclair's report of February 4, 2019 was filed. In the report, and in her testimony before me, she answered the following questions. I set out the questions posed in the report, followed by the sub-headings she set out in the report in the answer to each question:

1. Based on your professional experience and your knowledge of the literature and research in the area of trauma, intimate partner violence and domestic violence, can you describe the dynamics and characteristics of an abusive relationship?

• Definition of Domestic Violence and Intimate Partner Abuse
• What the Literature Tells Us
• Forms of Domestic Violence and Intimate Partner Abuse
• The Long-Term Impact of Repetitive Abuse on Women's Health
• Understanding the Pattern of an Abuser
• The Course of an Abusive Relationship

2. Based on your professional experience and your knowledge of the literature and research in the area of domestic violence and intimate partner violence, are you able to comment on some of the reasons that women who have been abused might remain in the relationship?

• Women remain, return or maintain contact with their abusive partners for many reasons:
  • The psychological experience of victimization:
    • Fear
    • Isolation
    • Ambivalence
    • Denial and Minimization
  • The social context of woman abuse:
    • Women as Conciliators
  • The lack of effective intervention and resources:
    • Professional Responses
    • Injuries and Medical Intervention

3. Based on your professional experience and your knowledge of the literature and research in the area of domestic violence and intimate partner violence, are you able to comment on some of the reasons that women who have been abused might not seek help?

4. Based on your professional experience and your knowledge of the literature and research in the area of trauma, domestic violence and intimate partner violence, are you able to comment on the shared experience (abuser and victim) of how being held in captivity in a foreign country for five years could impact on the dynamics and factors you describe above?

General Principles of Admissibility of Expert Opinion Evidence

[7] Opinion evidence is presumptively inadmissible. Expert opinion evidence may be admitted if the trial judge concludes that it passes a two-stage test.

[8] The first stage is the determination of threshold reliability. In order for the proposed evidence to succeed at this stage, it must meet the four factors first set out in R. v. Mohan, [1994] S.C.J. No. 36 at paras. 17-21:

(a) relevance;

(b) necessity in assisting the trier of fact;

(c) the absence of any exclusionary rule; and

(d) a properly qualified expert.

[9] If I conclude that the proposed evidence meets each of these criteria, I must then consider whether it nevertheless should not be admitted because its probative value is overborne by its prejudicial effect. This is referred to as the "gatekeeper" stage of the process. (R. v. Abbey, 2009 ONCA 624 at paras. 78-79; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 19)

[10] There is no suggestion that there is any exclusionary rule to prohibit the evidence of the sort proffered by the Crown.

Only Some of the Proposed Evidence is Logically Relevant

[11] Evidence is relevant when it has a tendency, as a matter of human experience and logic, to make the existence or non-existence of a fact in issue more or less likely than it would be in the absence of that evidence. This is "logical relevance", to be distinguished from "legal relevance", which involves a determination of whether the proposed evidence is not only logically relevant but sufficiently probative to justify admission. It is the former concept I must apply at this stage of the analysis. (Abbey, paras. 83-84; White Burgess, para. 23)

[12] Crown counsel made it clear in her oral submissions that the issue to which she submitted the proposed evidence was relevant was the credibility of the complainant – specifically to rebut an inference that her evidence about how she behaved during what she testified was a long-standing abusive relationship was not credible.

[13] Crown counsel does not submit that any of the proposed evidence could bolster the complainant's credibility on the basis that the evidence about how the defendant acted was consistent with how many abusers act. As she put it, the proposed evidence was admissible as a shield against a negative credibility inference about the complainant's evidence, but not as a sword to support a positive credibility inference.

[14] This submission is consistent with the law explained in a number of cases.

[15] In Abbey, the Court of Appeal held that the trial judge had erred by excluding the evidence of the expert witness on the basis that it was improper for him to testify about the reasons the defendant had a teardrop tattoo. The Court agreed that that would have been improper, but held that the expert could provide his opinion about the meaning ascribed to a teardrop tattoo in the urban street-gang culture. The Court wrote:

[100] The distinction between the proper scope of Dr. Totten's evidence and the scope as primarily advanced by the Crown and considered by the trial judge is not unlike the distinction drawn in K. (A.). In that case, Charron J.A. dealt with expert evidence relating to the behaviour of children who had allegedly been abused. As she explained, the experts in that case could not testify that certain features of a child's behaviour demonstrated that the child had been abused. In other words, the experts could not forge a direct link between their observations and prior abuse of the complainant. However, those experts could testify for the limited purpose of explaining that certain kinds of behaviour have been commonly observed in victims of child abuse. That kind of expert evidence was admissible because it provided the jury with a more complete picture when assessing the entirety of the evidence and, in particular, when deciding what inferences or conclusions should be drawn from the post-event behaviour of the complainants.

[16] This is similar to the analysis of the Supreme Court of Canada in R. v. Lavalee, [1990] 1 S.C.R. 852, where Wilson J., writing for the majority, held that expert evidence about the way in which battered women behave was admissible for the purpose of determining whether a woman who assaulted her partner was acting reasonably. The examples of the way in which this evidence was admissible were:

(a) to dispel what may be common beliefs that battered women are not really beaten as badly as they claim, because if they were they would have left the relationship;

(b) to dispel what may be common beliefs that women enjoy being beaten because they have a masochist strain in them;

(c) whether the accused woman "reasonably apprehended" death or grevious bodily harm so as to make self-defence applicable;

(d) to assist in assessing the nature and extent of the alleged abuse, by explaining why an accused woman remained in the battering relationship; and

(e) by providing an explanation as to why she did not flee when she perceived her life to be in danger.

[17] In R. v. Smith, 2007 ONCA 260, the Court of Appeal held that the trial judge had not erred in admitting evidence from an expert in domestic violence "about the tendency of victims of domestic violence to maintain contact with [their alleged abuser] and to recant during the trial process." The court held that the evidence had only a limited use. It could not be used as proof that the allegations were true, writing:

Although the trial judge told the jury that the expert's evidence would be helpful so that the jury would not draw "adverse inferences" based on stereotypical reasoning, the trial judge also cautioned the jury; that "you cannot use the expert's testimony to confirm that the violence happened in this case because the conduct of the complainant fit the so-called pattern such as recantation and continued contact" … .

[18] The Court of Appeal applied a similar approach in R. v. D.S.F., 43 O.R. (3d) 609, [1999] O.J. No. 688. In that case, Dr. Sinclair's evidence was proffered in a number of areas. The trial judge excluded her evidence that described the general behavioural pattern or profile of abused persons in intimate relationships and also her opinion that the complainant came within this profile and was therefore suffering from having been in an ongoing abusive marital relationship. He did, however, allow a portion of her evidence to be admitted. The Court of Appeal approved this approach. O'Connor J.A. wrote for the court at para. 50:

The evidence that the trial judge admitted was considerably narrower in its scope and its purpose than the excluded evidence. The admitted evidence was limited to the observed tendency of persons who have been abused to remain in the relationship for some time and to not immediately disclose the abuse. It was not admitted to establish that the complainant had been abused, as she alleged, but rather to put in context her explanation for not having immediately left the relationship and disclosed the abuse. The effect of the evidence was that the complainant's explanation was not as unusual as it might otherwise seem.

[19] The issue at this stage of the analysis is whether the proffered evidence is relevant to the issue of the reasonableness of the complainant's explanations as to how she behaved during the relationship, why she stayed in the relationship after returning from five years of captivity and why she did not report it before she did.

[20] In my view, most of her evidence in answer to question number 1 set out above – the dynamics and characteristics of an abusive relationship, as particularized by the subheadings in that section of the report – is not relevant to the issue I have set out in the preceding paragraph. Dr. Sinclair's opinion about the definition of domestic violence and intimate partner abuse, the first section under question 1 in her report, are not relevant to that issue. Nor are the forms that domestic violence and intimate partner abuse sometimes or often take, things discussed under another subheading.

[21] The issue before me is not what forms of violence and abuse might or often occur, but what, if anything, occurred in this case. And the particular issue before me that this evidence is said to be relevant to is the complainant's credibility – to provide an explanation of the way in which abuse victims behave so that I do not draw an inappropriate inference that the complainant's evidence is incredible.

[22] An example of Dr. Sinclair's evidence in issue is the following:

A. … And I speak here briefly about if it's in the abuser's case having been tortured and mistreated by captors, may make him more vulnerable as well to redirect his upset, his own trauma responses to this partner.

Q. So I just wanna pick up on that as well because I think that's the point you make in the last bullet point on page 16 of your report, where you write:

For the abuser, especially if tortured and mistreated by the captors, he may redirect his increased rage, sense of powerlessness and helplessness to his partner in the form of inflicting more severe and sadistic abuse.

And at the beginning of your report on page three, you talk about – you talk about domestic violence as being the use and misuse of power. And on page 16 when you talk about the sense of powerlessness and helplessness that someone might feel, you know, being mistreated or being held in captivity, can you expand a little more on that, or relate how a perpetrator of domestic violence might experience that feeling of powerlessness and helplessness from being held in captivity.

A. Well I think any – I spoke about how a trauma response is, and trauma as an overwhelming experience where we're not able to use our normal coping skills to manage the trauma. That's what trauma is for any of us in any kind of a situation. So in a situation where one feels a sense of powerlessness, and we see this a lot in communities where what I would lateral [sic] violence, where you can't, you can't direct your rage and your upset to the person whose causing harm because it's too dangerous. So you direct it to someone more vulnerable in order to achieve some kind of sense of control back in your life. And so in this case, there would be captors and then there would be the abuser and then there would be the woman, the victim and then there would be the children.

Q. And so when you talk about redirecting that, is that related to the types of control issues we see in a domestic violence relationship?

A. Could you say that again please?

Q. Yeah. When you talk about redirecting that sort of anger, or that sort of rage towards someone more vulnerable, how does that interact with the control, the way the control works in the context of a domestic relationship?

A. Well I think, I think what you're – I think what you're trying to get at is, many abusers feel – many people who use abuse as a tactic to control a person that they feel they have a right to do and they feel entitled to, to control, frequently describe themselves as quite powerless in their lives on a day to day basis. They see themselves as victims. Their common narrative is to see themselves as victims and as puppets. And so they use that as a way to kind of justify harming or maintaining control in another situation.

Frequently that's someone who is seen as lesser than them and of course a woman in the role of wife, if that's the mindset of the, of the abuser that she is lesser just because she is female and she's a wife and his property, then that's how he manages himself in his world. But it doesn't mean he holds that same kind of same power over everyone else in his world. He's not typically controlling his boss or typically harming someone outside of that particular intimate relationship. Although we have seen serial relationships now where abusers serially harm women that they're involved with.

[23] I asked Crown counsel how the first two answers could be relevant to the issue of the reasonableness of the complainant's actions during the relationship. She submitted that, by way of example, there could be some question about evidence from the complainant that the defendant improved in his behaviour over some period of time only to relapse into abusive behaviour, and this evidence would show that that behaviour was not unlikely and so the complainant's evidence should not be seen to be incredible.

[24] In my view, that is the type of inference that is impermissible. It amounts to an inference that because the complainant testified that the defendant acted in a way that Dr. Sinclair testified some abusers act, the complainant's evidence is more likely to be credible.

[25] More broadly speaking, evidence which purports to describe how some abusers act is not relevant to the issue for which it is said to be tendered. It does not act as a shield to protect against inappropriate inferences that the complainant's evidence is incredible which are the result of stereotypical beliefs about how abused women behave.

[26] Even though Dr. Sinclair was not asked to give her opinion about whether the defendant had been abusive towards the complainant, her opinion about how abusers are known to behave could only be relevant to that issue. I must decide what the defendant did, not what some abusers do. What some abusers do is not relevant to what the defendant did, even if I conclude that some of his actions or character traits were shared by some abusers. Dr. Sinclair's opinion about what some abusers do is not relevant to my determination of whether the Crown has proven beyond a reasonable doubt that the defendant is guilty of the offences with which he is charged.

[27] I conclude that the proposed evidence of Dr. Sinclair in which she gives her opinion of the way abusers behave is not relevant and not admissible. This includes much of her opinion in answer to questions 1 and 2. It also includes some of her opinion in answer to question 4.

[28] Dr. Sinclair's opinion about how abused women act and react in domestic abuse situations is relevant and passes that portion of the first step of the analysis.

The Opinion Which is Relevant is Necessary

[29] In R. v. Mohan, [1994] S.C.J. No. 36, the Supreme Court described the necessity standard as higher than "helpful", but that the opinion must provide information "which is outside the experience and knowledge of a jury." In R. v. D.D., 2000 SCC 43, the majority of the Court noted that the necessity requirement exists "to ensure that the dangers associated with expert evidence are not lightly tolerated" and "mere relevance or helpfulness is not enough". This was reiterated by Cromwell J. for the Court in White Burgess at para. 21.

[30] In D.D. at para. 57, Major J., for the majority of the Court, adopted the following passage from the second edition of the text by Professors Paciocco and Steusser as summarizing the "general approach to necessity":

As the Mohan Court explained, the four-part test serves as recognition of the time and expense that is needed to cope with expert evidence. It exists in appreciation of the distracting and time-consuming thing that expert testimony can become. It reflects the realization that simple humility and a desire to do what is right can tempt triers of fact to defer to what the expert says. It even addresses the fact that with expert testimony, lawyers may be hard-pressed to perform effectively their function of probing and testing and challenging evidence because its subject matter will often pull them beyond their competence, let alone their expertise. This leaves the trier of fact without sufficient information to assess its reliability adequately, increasing the risk that the expert opinion will simply be attorned to. 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.

[31] Major J. held in D.D. that the evidence of the expert witness in that case, who testified that not all victims of child sexual abuse will disclose the abuse immediately, and that timing of the disclosure signifies nothing, did not meet the necessity requirement. The notion that the victim of sexual abuse would immediately complain was at the root of the long-abrogated law relating to recent complaint. The issue could be dealt with by a simple jury instruction. Major J. wrote at para. 65:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[32] I gave considerable thought to whether this recognition of what seems to be obvious removed the necessity for expert evidence about how domestic abuse victims behave. I have concluded that, as Crown counsel submitted, the issue is not that simple.

[33] Dr. Sinclair's opinion is that the behaviours in issue are much more complex and subtle than whether it is unlikely that an abuse victim would not complain at the first opportunity. The reality is that I, like many judges and jury members, do not fully understand the limitations of my knowledge base about how victims of domestic abuse, assault, and sexual assault behave. The proposed evidence is necessary in the sense that it will provide me with information to remedy that deficiency.

[34] The Court of Appeal has recently reiterated that "the use of a common-sense approach to credibility assessment is fraught with danger for it can 'mask reliance on stereotypical assumptions'". (R. v. Cepic, 2019 ONCA 542 at para. 13; R. v. A.B.A., 2019 ONCA 124 at para. 7)

[35] In R. v. A.R.J.D., 2018 SCC 6, the Supreme Court held that it is an error for a trial judge to determine a complainant's credibility based solely on the correspondence between her behaviour and the expected behaviour of a stereotypical victim of sexual assault. In that case, the trial judge had committed that error even though he had instructed himself against doing so.

[36] Defence counsel submitted that this evidence was not necessary because he would not be submitting that the complainant's credibility should be questioned because of a perceived discrepancy between her behaviour and that of a truthful victim of abuse and sexual and physical assault. In my view, however, experience has shown that this error can occur despite best efforts to guard against it. Furthermore, it is difficult if not impossible to predict now what submissions may arise after all the evidence is in.

[37] I conclude that the proposed evidence about the behaviour of victims of abuse and physical and sexual assault in domestic relationships is "necessary" in the sense that that term is used in the jurisprudence.

Dr. Sinclair is Qualified to Give Opinion Evidence About the Behaviour of Domestic Violence, But Not About the Behaviour of Long-Term Captivity Victims

(a) What is Required to be an Expert

[38] Expertise is established when the witness possesses special knowledge and experience going beyond that of the trier of fact, relating to the specific subject matter on which the expert is being offered. The witness must be 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." (Mohan, para. 27)

[39] Durno J. has provided a helpful list of factors to assist in determining whether a proposed expert witness is qualified, at para. 31 of R. v. Pham, 2013 ONSC 4903:

• the manner in which the witness acquired the special skill and knowledge upon which the application is based;
• the witness' formal education (i.e. degrees or certificates);
• the witness' professional qualifications (i.e. a member of the College of Physicians and Surgeons);
• the witness' membership and participation in professional associations related to his or her proposed evidence;
• whether the witness has attended additional courses or seminars related to the areas of evidence in dispute;
• the witness' experience in the proposed area(s);
• whether the witness has taught or written in the proposed area(s);
• whether, after achieving a level of expertise, the witness has kept up with the literature in the field;
• whether the witness has previously been qualified to give evidence in the proposed area(s), including the number of times and whether the previous evidence was contested;
• whether the witness has not been qualified to give evidence in the proposed area(s) and if so, the reason(s) why; and
• whether previous caselaw or legal texts have identified the contested area as a proper area for expert evidence and if so, who might give the evidence.

(b) Dr. Sinclair is an Expert in the Behaviour of Victims of Domestic Abuse

[40] I have no difficulty in concluding that Dr. Sinclair is an expert in the behaviour of victims of domestic abuse. She is a registered social worker and has practiced in the area, providing services to victims of domestic abuse for over 40 years. She has a Ph.D. from the Faculty of Social Work at the University of Toronto (awarded this year). She received her Bachelor of Arts from that university in 1976 with a double major in Women's Studies and Sociology. She received her Master's in Social Work from the University of Toronto in 1978 with a double major in individuals, families and groups and research concepts and methodology. She has led seminars and workshops and spoken at conferences dealing with all aspects of violence against women and children and vicarious care. Her clinical practice has specialized in trauma survivors, their families and their allies.

[41] She has been involved with a number of government inquiries and consultations including, since 2018, the Reference Advisory Group of the Ontario Association of Children's Societies to update the training curriculum for all child welfare workers in Ontario on how to most effectively analyze and intervene in cases of woman abuse and child abuse. Since 2006, she has been a member of the Violence against Women stakeholders sector that consults quarterly with the provincial government on policy and program issues affecting women and children in the province. She has testified as an expert witness in approximately 50 cases since 1990 dealing with domestic violence against women. She has written or co-written a number of papers dealing with domestic violence between 1981 and 2019.

(c) Dr. Sinclair Meets the Necessary Threshold of Impartiality and Independence

[42] Defence counsel submits that I should conclude that Dr. Sinclair is not qualified to give expert evidence because she does not meet the requirement of being fair, objective and non-partisan. In White Burgess at paras. 30 and 32, Cromwell J. noted that three related concepts underlay the various formulations of that duty: impartiality, independence and absence of bias. The Court also held in that that case that the assessment of these factors goes to the admissibility of the evidence, not just its weight.

[43] Mr. Greenspon submits for the defence that a number of factors lead to the conclusion that Dr. Sinclair does not meet this test. Dr. Sinclair describes herself in her LinkedIn profile as "at the forefront of Canada's movement to end violence against women and children." She has dedicated her life to the prevention of violence against women. She described herself as a feminist social work activist in the violence against women movement. She said that she was a leader and champion in that movement. She has been hired by the Ministry of the Attorney General, various Crown Attorney offices and police forces. She has testified only once for the defence, and that was in support of a defendant who was a battered spouse. She testified that there had never been a case where she said a woman was not abused.

[44] In White Burgess, the Court held that while there was a threshold admissibility requirement of impartiality and independence, the expert's attestation or testimony recognizing and accepting those duties will generally be sufficient to establish that the threshold has been met. Cromwell J. wrote at para. 49 that the threshold requirement was not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. He wrote:

…exclusion at the threshold stage of the analysis should only occur in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

[45] In my view, Dr. Sinclair met this test. Her proposed evidence meets the threshold test of independence and impartiality. I will also consider this issue at the gate-keeper stage of the analysis.

(d) Dr. Sinclair is Not an Expert in the Behaviour of Victims of Long-Term Captivity

[46] Although I concluded that Dr. Sinclair possesses the necessary training, skill and experience to give opinion evidence about how victims of domestic violence behave, I have not reached the same conclusion with respect to her evidence about how victims of long-term captivity behave.

[47] Justice Stephen Goudge recognized the dangers of expert witnesses testifying beyond the limits of their expertise in the report he issued as Commissioner of the Inquiry into Pediatric Forensic Pathology in Ontario. He wrote:

Expert witnesses are allowed to give opinion evidence as an exception to the general rule, but only to the extent that they have been properly qualified as experts. It is crucial that judges precisely define the nature and the limits of that experts at the beginning of each trial. This description gives clarity to what the experts can properly opine on and allows the court to curtail the "roaming expert".

[48] Dr. Sinclair has never clinically treated or dealt with individuals who were held hostage for any prolonged period of time. She has never done a presentation or been published on the effect hostage taking may have on a person or a couple. She has never testified as an expert witness about the effects of prolonged hostage taking. She admitted in cross-examination that she could not say what effect 5 years of captivity would have on traumatic bonding.

[49] Dr. Sinclair appears to have become what Justice Goudge referred to as a "roaming expert" in the answer to question 4 she provided in her written report.

[50] That question was:

Based on your professional experience and your knowledge of the literature and research in the area of trauma, domestic violence and intimate partner violence, are you able to comment on the shared experience (abuser and victim) of how being held in captivity in a foreign country for five years could impact on the dynamics and factors you describe above?

[51] The answer she provided, however, was, to a significant extent, copied word for word from answers she had provided in another case, R. v. Wilson, in which she had appeared as an expert witness. Mr. Wilson was charged with having enticed a number of women back to his residence, drugging them and having non-consensual sex with them. The Crown theory was that in some of the assaults the defendant was assisted by his common-law partner and that she was a "coerced accomplice", the coercion stemming from ongoing partner abuse from the defendant. Dr. Sinclair was qualified without objection as an expert in definition and forms of domestic violence; the dynamics of an abusive relationship including traumatic bonding and coercive control; understanding and interpreting the behaviour of victims of domestic abuse; and providing a contextual understanding for the choices made in the context of an abusive relationship. The questions Dr. Sinclair was asked to answer in that case included:

4. Based on your professional experience and your knowledge of the literature and research in the area of domestic violence and intimate partner violence, are you able to comment on how and why a victim of domestic violence might change her account over time not only as it relates to her abuser's behaviour, but also her own?

and

5. Based on your professional experience and your knowledge of the literature and research in the area of domestic violence and intimate partner violence, are you able to comment on why a victim of domestic abuse might condone or even participate in unsavory or criminal acts alongside her abusive partner? Can you relate this behaviour to the dynamics at play in an abusive relationship and concepts of choice and free will?

[52] The answer Dr. Sinclair provided in her report in Mr. J.A.B.'s case was 11 paragraphs long. Paragraphs 5 through 8 are verbatim copies of a portion of her answer to question 4 in Mr. Wilson's case. Paragraphs 9, 10 and 11 are an almost verbatim copy of her answer to question 5 in Mr. Wilson's case. The only changes were in the 10th paragraph, in which she replaced two portions of one sentence and added portions to another sentence. That paragraph is as follows, with the portions removed from the Wilson report in square brackets and italicized and the portions that were inserted underlined:

If she is immersed in a world [that embraces a lifestyle that is not accepted in mainstream culture, i.e.: illegal drugs, sex, work strip clubs, all night parties, et cetera] of captivity where both she and her partner are being mistreated, abused, and tortured, then anything she is coerced into doing by her partner, within that [lifestyle] context of imprisonment, may be justified in her own mind and deemed acceptable. Understanding a victim's concept of choice, while she is still entrapped in a severely physical, sexual and psychologically abusive relationship by not only her intimate partner but also by their captors, means knowing that her freedom of thought is often very narrow and constricted and ultimately controlled by the abuser and the captors. Being subjected to continuous brainwashing means her moral compass is replaced by the authority and rules of the abuser/captors.

[53] The questions Dr. Sinclair was asked in the Wilson case had nothing to do with the effects of the shared experience (abuser and victim) of being held in captivity in a foreign country for five years. The facts in that case did not raise those issues. Yet she provided effectively the same answers to question number 4 she was asked in this case. In doing so, she was using the expertise in domestic violence she had developed over the years to provide an opinion about something for which she had not developed the requisite expertise.

[54] Crown counsel submits that Dr. Sinclair testified as to the many similarities between the experience of domestic violence and the experience of being a hostage, and that her opinion in this area arises from her considerable clinical experience dealing with patients with complex PTSD and her research into academic literature. This submission is, in effect, bootstrapping. Dr. Sinclair could not acquire the necessary expertise to testify that the effects of prolonged foreign captivity are the same as the effects of domestic abuse without extensive study, experience in, and development of the necessary expertise in the effects of prolonged foreign captivity. She needs to meet the standard outlined by Durno J. in Pham. She does not.

[55] I have concluded that Dr. Sinclair does not possess the necessary expertise to provide an opinion about the effects on victims of prolonged foreign captivity. Her evidence about these effects is inadmissible.

Cost Benefit Analysis

[56] At the second stage of the admissibility issue I am required to balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justifies the risks. As Doherty J.A. put it in Abbey at para. 76 (as approved by the Supreme Court of Canada in White Burgess at para. 24):

The trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.

[57] Defence counsel submits that this analysis should result in the evidence being rejected because of what he submits is Dr. Sinclair's lack of objectivity. I will not repeat the basis for those submissions.

[58] It is clear that Dr. Sinclair is a champion of abused women and an advocate for proper prevention of domestic violence and proper treatment of those who are its victims.

[59] A similar argument was made in R. v. Sadiq, [2009] O.J. No. 2974 (SCJ). Mr. Sadiq was charged with first degree murder. The Crown sought to have the evidence of an expert in honour killings admitted. Defence opposed on the basis that the proposed expert was too much of an advocate for women's rights to be an impartial expert. Rutherford J. allowed the expert's evidence to be heard, holding that her objectives in educating people, including judges, lawyers, and police officers about an odious cultural phenomenon affecting women inhumanely and in an effort to bring about the rights of women did not preclude her from being an acceptable expert witness. This decision was upheld by the Court of Appeal. (2013 ONCA 250, [2013] O.J. No. 1796)

[60] In my view, similar considerations apply to this case. I am satisfied that though Dr. Sinclair is a champion for abused women and actively seeks to prevent domestic violence, she is not predisposed to give evidence against Mr. J.A.B.'s interests. It would be difficult to imagine someone who has developed an expertise in this area who did not develop an urge to improve the situations of its victims. But Dr. Sinclair does not know the defendant or the complainant. She has not been asked to give an opinion about the facts of this case. She has been retained many times by the Crown, the Ministry of the Attorney General, and police forces, but the latter two have generally retained her to provide human resource training designed to prevent abusive situations in the work force. She has not testified in courts to provide an opinion that a woman was not abused, but in many cases – such as this one – she was not asked for her opinion about whether a particular woman had been abused.

[61] As Cromwell J. put it at paragraph 50 of White Burgess, the question is whether the interest of the proposed witness results in her being unable or unwilling to carry out her primary duty to the court to provide fair, non-partisan and objective assistance. I am satisfied that Dr. Sinclair is able to provide such assistance.

[62] It was also submitted that Dr. Sinclair's evidence should not be received because she is not an expert in the situation I have before me – of two persons who were held as captives in a foreign country for a number of years – and the combination of that with allegations of domestic abuse meant that, even if she was an acceptable expert in the way victims of domestic violence behave, that was inapplicable to this case.

[63] I am satisfied that Dr. Sinclair's expertise in the way that victims of domestic violence and abuse react is relevant to the circumstances in this case. It may well be that it is entitled to less weight than it would be in a case in which there are no other circumstances that could affect the behaviour of the complainant. But I note that many cases involve other factors that could affect the complainant's behaviour. It is the duty of the trier of fact to assess the evidence and consider the relative importance of all factors.

[64] I am also satisfied that I will be able to assess her evidence. She was cross-examined at length and with skill. That cross-examination will assist me in determining what weight to give to her evidence. I will be careful to use her evidence only as a "shield" against an inappropriate conclusion that the evidence of the complainant lacks credibility because of the way she behaved. In drawing conclusions about the complainant's credibility, I will consider Dr. Sinclair's evidence for that purpose. I will not, however, consider myself bound by it. It will be part of the entire body of evidence upon which I will make my conclusions.

[65] Nor is there a risk of unnecessary consumption of time in the trial process. Dr. Sinclair gave her evidence in a voir dire. Counsel have agreed that the evidence which I rule admissible may be used by me on the trial proper.

[66] The benefit of the proposed evidence is that it will provide me with a basis for avoiding inappropriate negative assessments of the complainant's credibility. I am satisfied that this benefit can be achieved without undue risks to the trial process.

Conclusion

[67] The evidence of Dr. Sinclair with respect to the behaviour of victims of captivity is not admitted. This includes all the evidence in her report and oral testimony in answer to question number 4.

[68] Her evidence dealing with the way in which victims of domestic abuse and violence behave is admitted. All the rest of her evidence is not admitted.

[69] If counsel have any questions about whether specific portions of Dr. Sinclair's evidence have been admitted into evidence, they may direct them to me.

Released: August 12, 2019

Signed: Justice P.K. Doody