ONTARIO YOUTH COURT OF JUSTICE
WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
DATE: 2024 07 02 COURT FILE No.: Toronto 20-Y200309
BETWEEN:
HIS MAJESTY THE KING
— AND —
K.W. (a young person)
Application to Admit Expert Evidence – Forensic Psychologist
Before: Justice Brock Jones
Heard on: June 27, 2024 Written Reasons released on: July 2, 2024
Counsel: E. Stimec............................................................................................... counsel for the Crown D. Bygrave....................................................................................................... counsel for K.W.
Jones J.:
I. Introduction
[1] K.W., a young person, is charged with sexual assault and sexual interference against A.A. [^1], who was four years old at the time.
[2] The Crown seeks to introduce into evidence an audio-recorded statement given by K.W. to A.A.’s mother, Ms. L.G., shortly after the alleged assault occurred. After observing K.W. engaging in what she believed to be inappropriate behaviour with her son, L.G. confronted K.W. and demanded that he tell her what happened. The circumstances surrounding the taking of this statement and its contents are in dispute. While the statement was partially recorded on an iPhone, the recording is not entirely clear. Furthermore, the defence and Crown have presented different versions of what occurred both before and after the recording took place.
[3] The Crown called L.G. and her husband, J.S., to testify about how the statement was obtained. L.G. said she was forceful and angry when she took the statement but denied threatening K.W. The position of the defence is that L.G. intimidated K.W. into providing a statement. She used her status as the dominant adult in the household to compel him to speak. She was relentless, yelled at K.W., accused him of other misconduct, and mentioned the involvement of the police. The combination of these factors placed insurmountable pressure upon K.W. to tell L.G. what she wanted to hear – that he agreed with her accusation of inappropriately touching A.A.
[4] After the Crown closed its case, but before calling any other evidence, Ms. Bygrave applied to have Dr. Ilacqua qualified as an expert witness in forensic psychology. She submits that his opinion evidence is necessary to understand K.W.’s level of intellectual functioning and how susceptible he was to suggestive questioning. His testimony will provide the court with necessary evidence outside my knowledge and experience to evaluate the reliability of her client’s statement.
[5] During oral argument, I raised with counsel the possibility that the proposed expert evidence may also be relevant to another issue regarding the statement, which is whether it was provided under circumstances that constitute duress, as that term is understood for section 146(7) of the Youth Criminal Justice Act (“YCJA”). While L.G. denied explicitly threatening K.W. with force or violence, Ms. Bygrave argues that L.G. effectively mounted a skilled interrogation that resulted in her client’s will being overborne. Ms. Bygrave also intends to call her client as part of the defence case, and she anticipates his testimony will raise more concerns for the court about how he was treated.
[6] While a formal voir dire into the admissibility of the statement was not requested by either party at the start of the trial, it is the obligation of the court to ensure that a young person’s statement is lawfully admissible. Failure to consider the question of duress and the applicability of YCJA section 146(7) is an error of law warranting appellate intervention: see R. v. A.M.J, 1999 BCCA 366, at para. 43 (decided under section 56(5) of the Young Offenders Act (“YOA”)).
[7] On June 27, 2024, I provided brief oral reasons. I provide these written reasons to explain why I found that Dr. Ilacqua was a suitably qualified expert witness in forensic psychology and his opinion evidence was admitted given the issues arising in this trial.
II. Background Facts
[8] K.W., then 17 years old, lived with L.G., J.S. and their three children during the summer of 2020. He was the grandson of L.G.’s cousin, P.S.
[9] During the summer, K.W. slept in a room at L.G.’s cottage with P.S. and A.A. One night, L.G. took A.A. to the bathroom and noticed something unusual. While he typically needed to urinate during the night, on this evening, he said he needed to defecate. After A.A. was done on the toilet, L.G. noticed a liquid substance she had never seen on her son.
[10] Something struck her about the situation. Her son had never acted this way previously. Her intuition told her something was wrong. She no longer trusted leaving K.W. in the same room as A.A.
[11] On September 3, 2020, they returned to L.G.’s residence in Toronto. That evening, she put her two youngest sons (A.A. and B.B.) to bed in their room. K.W. was sleeping in another room. These rooms were on the second floor of the home.
[12] After some time, L.G. noticed the door to her youngest son’s room was open. She was concerned. She entered the room and saw K.W. in bed with A.A. She asked K.W. why he was in the bedroom. He said he just wanted to say goodnight to the boys. She did not believe him.
[13] She noticed something wrong with A.A.’s pyjamas. His pants appeared pulled up his back, and his shirt was tucked into them. This is not how she had dressed A.A. when she put him to bed. She pulled A.A.’s shirt out and unrolled his pants. She noticed his back was sticky and damp.
[14] She asked K.W. if he touched A.A. inappropriately. K.W. denied the accusation. She asked him specifically if he put his penis in A.A.’s bum. He said, “No.” She told him they would go downstairs to speak to her husband.
[15] As they travelled downstairs, she was shaking and overcome with emotion. She was angry and very concerned for her son. She testified she was yelling and forceful when she questioned K.W. He became upset as well and was crying.
[16] She told her husband what she believed K.W. had done. She called K.W.’s mother and said to her that she needed to come and remove K.W. from the home immediately. She explained what happened. K.W. was present for both conversations.
[17] L.G. testified K.W. admitted to a form of sexual touching on A.A. She then told K.W. she was going to record their conversation. She put her iPhone on the table, activated a recording feature, and ordered him to talk. She demanded that K.W. tell her the truth. The recording was entered into evidence. It is ten minutes long and of mixed quality. It is not always clear what L.G. and K.W. are saying; they speak over one another. However, most of it is clear, and what is said for these portions can be ascertained.
[18] K.W. was extremely upset. He was crying and, at times, hyperventilating. He is notably afraid of what is happening. L.G. is loud, repeats her accusations several times and tells K.W. she knows he is lying when he insists it only happened “one time.” She tells him she knows this was not the first time something happened between him and her son, referencing the incident in August at the cottage. She asks him if he watches pornography. He replies, “no.”
[19] He tells L.G. that he was abused himself in Jamaica when he was eight years old. L.G. asks him why he would then repeat that abuse on her son. She asks for more details about this incident, and he is unable to provide many other than it occurred in Jamaica and he did not know the person who abused him.
[20] L.G. again accuses K.W. of lying. She says she knows it was not the first time. She tells him that “no one will get better with lies” and “the first step to healing is being truthful.” She orders him to look her in the eyes and cautions him she knows he is lying. She warns him that if a doctor examines her son and determines that A.A. was touched more than once, that will expose his deceit. K.W. maintains that he only touched A.A. once. He used spit on his finger which explains the damp area noticed by L.G. on A.A.’s back.
[21] L.G. agreed during her testimony that she referenced the involvement of the police before the commencement of the recording. This happened when she located K.W. in A.A.’s bedroom.
III. Testimony of Dr. G. Ilacqua
[22] Dr. Ilacqua has been a registered psychologist with the College of Psychologists of Ontario since 1992. He has been qualified as an expert in forensic psychology in Canadian criminal courts over twenty times. He testified as to his academic and professional qualifications, which are contained in his CV.
[23] K.W. met with Dr. Ilacqua and members of his office on March 3 and 9, 2023, and again approximately one week prior to his testimony on June 27, 2024. In addition, Dr. Ilacqua reviewed various documentation, including educational records, a prior psychological report completed in 2017, another report completed in 2019, and a psychiatric consultation completed in 2022. Dr. Ilacqua interviewed K.W.’s mother on March 9, 2023, to learn about his upbringing and medical history.
[24] Dr. Ilacqua administered the Wechsler Adult Intelligence Scale (WAIS-IV) [^2]. The WAIS-IV is an individually administered clinical instrument designed to assess the cognitive ability of adolescents and adults. It provides scores representing intellectual functioning in specific cognitive domains and a composite score representing general intellectual ability.
[25] K.W.’s general cognitive ability was determined to be in the extremely low range of intellectual functioning, and his general perceptual reasoning, working memory and processing speed abilities were in the same category.
[26] Dr. Ilacqua’s opinion was that K.W. has significant limitations in intellectual functioning.
[27] To further assess K.W., Dr. Ilacqua administered the Gudjonsson suggestibility scale-1 (GSS-1). This is a clinical instrument designed to assess levels of interrogative suggestibility. It was created to measure resistance to police questioning. The scales provide a total score for suggestibility based on responses to leading questions and negative feedback.
[28] Dr. Ilacqua’s opinion was that based on K.W.’s scores, which placed him above the 95th percentile compared to the general population, he is highly susceptible to suggestive materials. Dr. Ilacqua was primarily concerned that K.W. tends to respond quickly when questioned but is naïve and is unwilling or unable to address stressful or emotionally loaded situations. He would choose the path of least resistance to escape a distressing situation. That could mean telling the questioner what she wanted to hear, whether it was true or not, hoping the questioning would stop.
[29] Fundamentally, K.W.’s inhibited cognitive functioning fosters his potential to be susceptible to coercion. This would be amplified in a high-pressure, emotional situation with a familial, elder figure, to whom he had previously learned to be obedient and accommodating.
IV. Expert Evidence and the Reliability of Confessions
[30] In White Burgess Langille Inman v. Abbot and Haliburton Co., 2015 SCC 23, the Supreme Court of Canada set out how to examine the admissibility of expert opinion evidence. There are two stages to the established framework.
[31] At the first stage, the judge must be satisfied of the following:
(i) That the evidence is logically relevant to an issue; (ii) That the evidence is necessary; (iii) That the evidence does not infringe an exclusionary rule of evidence; (iv) That the expert is properly qualified; and (v) Where an opinion is based on contested science or on science being used for a novel purpose, that the underlying science is sufficiently reliable for that purpose.
[32] The analysis moves to the second stage if these threshold criteria are satisfied. At this stage, the judge must act as a gatekeeper and decide where the benefits of admitting the evidence outweigh the costs: see White Burgess at paras. 16, 24.
[33] Logically relevant evidence has “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence”: see R. v. J-LJ, 2000 SCC 51, at para. 47. The focus is on the alleged connection between the evidence and the issues being litigated in the trial: see R. v. Johnson, 2019 ONCA 145, at para. 52.
[34] The necessity component requires the trier of fact to determine if they can appropriately assess the evidence or come to a correct judgment without the assistance of the expert’s opinion: Johnson, at para. 53. To meet this requirement, the opinion must refer to subject matter that is likely outside the experience and knowledge of the trier of fact. Mere helpfulness, however, is insufficient: R. v. D.D., 2000 SCC 43, at paras. 46-7.
[35] The necessity criterion must be rigorously scrutinized when the proposed expert opinion evidence is presented to address issues of witness credibility or reliability. As explained by the Ontario Court of Appeal in Parliament v. Conley, 2021 ONCA 261, at para. 44:
The ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and it is not the proper subject of expert opinion. The rationale for this policy is that credibility is a notoriously difficult problem, and a frustrated jury may readily accept an expert's opinion as a convenient basis upon which to resolve its difficulties: see R. v. Marquard, [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, at p. 248 S.C.R.
[36] Despite her intention to call K.W. as a witness, Ms. Bygrave submits that she is not seeking to admit Dr. Ilacqua’s opinion for this improper purpose. Instead, his opinion is relevant to understanding how her client, still a child at the time, would have reacted to the intense pressure and atmosphere of coercion created by L.G. at the time of the questioning on September 3, 2020. That distinction renders Dr. Ilacqua’s testimony necessary as the court could not otherwise fully appreciate his vulnerability to suggestion and influence.
[37] Expert opinion evidence that focuses on psychological factors to assist a trier of fact in understanding why someone might act as they did in certain circumstances may be admitted. In Marquard, the Supreme Court of Canada commented that expert testimony of this nature is particularly informative regarding the behaviour of children: see p. 250.
[38] Similarly, in R. v. Parrott, 2001 SCC 3, the complainant, an adult, had the mental development of a three or four-year-old child. Her testimonial competence was at issue. While the majority of the Supreme Court held that trial judges are able to assess the competency of a witness without the need for expert evidence, it left open the possibility that when a fragile witness is called to testify, expert evidence may be admissible to explain the witness’ behaviour: see para. 62.
[39] False confessions are another well-recognized area that may lawfully engage expert evidence. In R. v. Phillion, 2009 ONCA 202, the Ontario Court of Appeal held that where the reliability of a confession is in issue, “expert evidence regarding an accused’s personality traits that is relevant to and probative of the issue will be admissible”: see. para. 218.
[40] In R. v. Moir, 2016 BCSC 386, affirmed 2020 BCCA 116, the accused confessed during a “Mr. Big” investigation. The defence sought to introduce the evidence of a psychologist that the accused had limited cognitive functioning and operated at about a grade three level academically. He was impaired in his ability to express himself in written form and had at most an average ability to comprehend words. Justice Griffin held that the psychologist's opinion regarding the accused’s cognitive abilities was relevant and necessary on the Hart voir dire: see para. 46.
V. YCJA section 146(7)
[41] K.W. was a young person when he provided his statement to L.G. Therefore, the specialized protections of the YCJA must also be considered. YCJA section 146(7) states:
A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority.
[42] This section and its predecessor section, YOA section 56(5), have been the subject of few reported decisions. Almost none provide a definition of duress for this subsection. [^3]
[43] “Duress” may defined in different ways. Some definitions limit it to “compulsion by threat or force; coercion; constraint” (see https://www.dictionary.com/browse/duress) or “wrongful and usually unlawful compulsion (as threats of physical violence) that induces a person to act against their will” (https://www.merriam-webster.com/dictionary/duress). Other definitions are broader in scope and stipulate that duress consists of the use of “coercion, force, false imprisonment, threats or psychological pressure” to have someone act in a way they do not wish or which is not in their best interests (https://legaldictionary.net/duress/.)
[44] In R. v. Ryan, 2013 SCC 3, the Supreme Court of Canada addressed the scope of the formal defence of duress to a criminal charge. The Supreme Court held that the rationale underlying duress is moral involuntariness: see para. 23. Only voluntary conduct, free from compulsion, should attract criminal liability. However, as a complete defence to a criminal charge, duress is only applicable “in situations where the accused has been compelled to commit a specific offence under threats of death or bodily harm”: see para. 29; Criminal Code section 17.
[45] However, in the context of the admissibility of a statement by an accused person to someone who is not, in law, a person in authority, duress plays a different role and may be given a broader definition. In R. v. Hodgson, the appellant was a friend of the complainant’s family. She was sixteen. She alleged that when she was seven or eight and continuing until she was eleven, the appellant sexually assaulted her. When she finally told her mother about these incidents, her mother, father and stepfather confronted the appellant at his place of employment. He confessed. The complainant’s mother struck him, and her father held a knife to his back.
[46] The Supreme Court held that if a trial judge is satisfied that the statement was obtained by “reprehensible coercive tactics, such as violence or credible threats of violence,” then the trier of fact should be cautious about accepting it, and little if any weight should be attached to it: see para. 48 (my emphasis added).
[47] The Supreme Court identified violence or threats of violence as an example of “coercive tactics” but did not limit its ruling to such actions. Additionally, of vital importance to my decision is that Hodgson was an adult criminal case, not a youth case.
[48] The youth criminal justice system is separate from the adult criminal justice system. It is designed to reflect the unique vulnerabilities of young persons.
[49] YCJA section 146 governs the admissibility of statements made by young persons in criminal proceedings. Typically, this subsection is raised when the Crown seeks to tender into evidence a statement made by a young person to a “person in authority,” such as a police officer. A “person in authority” refers to those formally engaged in the accused's arrest, detention, examination or prosecution: Hodgson at para. 16. Section 146(2)(a) requires the Crown to prove, beyond a reasonable doubt, that a young person’s statement made to a person in authority was provided voluntarily. This subsection codifies the common law voluntariness rule for young persons. Section 146(2)(b) provides young persons with a complementary set of enhanced procedural safeguards because “[y]oung persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate”: see R v LTH, 2008 SCC 49, at para. 1.
[50] In LTH, the Supreme Court of Canada held that young persons are “more susceptible to the pressures of interrogation”: see para. 24. Officers must, therefore, employ an “individualized, objective approach” to questioning young persons that “must take into account the level of sophistication of the young person and other personal characteristics relevant to their understanding”: see para. 30. While the decision was meant to address statements given to police officers, the central holding of the case extends further.
[51] Children are “inherently vulnerable,” and a wide array of legal protections exist in various fields of Canadian law for them accordingly: see A.B. v. Bragg Communications, 2012 SCC 46, at para. 17. When determining the admissibility of a confession, the “very real differences between children and adults” must always be considered: see J.D.B. v North Carolina, 564 U.S. 261 (2011) (Supreme Court of the United States), at 281. There will be circumstances where an adult authority figure, other than a peace officer, might produce an unreliable or even false confession due to the manner of questioning. While young persons’ susceptibility to pressure exerted by classic state authority figures is well documented, it is not limited to these interactions. Other responsible adults in their lives may occupy an equal or even more critical position of control over them.
[52] As Cory J. explained in R. v. J. (J.T.), [1990] 2 SCR 755, at p. 766, Parliament has “recognized the problems and difficulties that beset young people when confronted with authority”:
A young person is usually far more easily impressed and influenced by authoritarian figures. No matter what the bravado and braggadocio that young people may display, it is unlikely that they will appreciate their legal rights in a general sense or the consequences of oral statements made to persons in authority; certainly they would not appreciate the nature of their rights to the same extent as would most adults. Teenagers may also be more susceptible to subtle threats arising from their surroundings and the presence of persons in authority. A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure. It was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedure.
[53] Parents, caregivers, and other adult relatives play an essential daily role in the lives of children. They are in a position of trust and authority. The children they care for are expected to follow their instructions and commands. Disobedience is often met with discipline or the loss of privileges.
[54] As I have explained, YCJA section 146(2)(b) offers enhanced protection to young persons. It is meant to address the glaring power imbalance between young persons who find themselves detained and subject to questioning by “persons in authority,” such as police officers. Yet if the protections of this subsection are meant to be deeper than those provided to adults, in my view, the protections offered by subsection 146(7) are intended to be broader. It recognizes that there will be circumstances where the will of a young person might be overborne by the nature of questioning from an adult they consider to have authority over them and whom they must obey, even if that person does not qualify as a “person in authority” as defined in law.
[55] Parliament chose to provide this added layer of protection. The section must be given a liberal interpretation to ensure the interests it is meant to guard are not unduly restricted: YCJA section 3(2). In my view, “duress” for section 146(7) must encompass more than explicit threats or acts of physical violence. [^4] Duress includes acts of coercion, intimidation, or psychological pressure. The impact on the young person must be assessed on a modified objective standard, considering the young person’s characteristics. If the form of duress in question meets this threshold and compels the young person to provide the statement, then it is inadmissible. [^5]
[56] However, given that this section does not apply to state actors, the onus does not fall upon the Crown to prove that the statement was free from duress. Instead, the onus is on the defence to establish duress on a balance of probabilities: see R. v. M.G., [2015] O.J. No. 5272, at para. 2.
VI. Analysis
[57] Dr. Ilacqua is a highly qualified professional witness whose academic and professional achievements are exemplary and uncontested. I accept he is a suitably qualified expert in forensic psychology.
[58] Dr. Ilacqua’s specialized knowledge, professional experience and individualized assessment of K.W. have allowed him to form an opinion that is outside the experience and knowledge of myself as the trier of fact in this case. Dr. Ilacqua’s opinion regarding K.W.’s level of intellectual functioning and suggestibility is therefore admitted as logically relevant and necessary for the purposes how I determine the following issues:
- Whether K.W.’s statement to L.G. was provided in circumstances, that, based on his vulnerabilities, amounts to “duress” as defined in section 146(7) of the YCJA; and
- The degree of reliability that should be afforded to the statement if it is ruled admissible.
[59] The admission of expert evidence is one that falls to the discretion of the trial judge. As Dr. Ilacqua has been presented as a defence witness, I further note that criminal courts are generally reluctant to deprive an accused persons of evidence relevant to their defence and the standards for the admissibility of expert evidence may be applied in a more generous fashion: see R. v. S.K.M, 2021 ABCA 246, at para. 55.
[60] The defence application is granted.
Released: July 2, 2024 Signed: Justice Brock Jones
[^1]: I have used these fictitious initials to provide an extra layer of protection for this child’s identity. [^2]: K.W. was 20 at the time of this testing. [^3]: For example, see R. v. S.R., [2009] O.J. No. 3134 and R. v. M.G., [2015] O.J. No. 5272. In R. v. G.F.D., [2006] BCJ No 1271, an example of non-violent duress is provided: see para. 26. [^4]: Such an approach was taken by the trial judge in R. v. T.A., 2017 ABCA 146, and was not challenged by the Crown on appeal: see para. 15. [^5]: On June 28, 2024, I had the benefit of further submissions from the parties on the scope of YCJA s. 146(7).