R. v. Trochym, 2007 SCC 6

SUPREME COURT OF CANADA

Citation: R. v. Trochym, [2007] 1 S.C.R. 239, 2007 SCC 6

Date: 20070201

Docket: 30717

Between:

Stephen John Trochym

Appellant

and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment:

(paras. 1 to 84)

Concurring Reasons:

(paras. 85 to 90)

Dissenting Reasons:

(paras. 91 to 192)

Deschamps J. (McLachlin C.J. and Binnie, LeBel and Fish JJ. concurring)

Charron J.

Bastarache J. (Abella and Rothstein JJ. concurring)

R. v. Trochym, [2007] 1 S.C.R. 239, 2007 SCC 6

Stephen John Trochym Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Trochym

Neutral citation: 2007 SCC 6.

File No.: 30717.

2006: May 9; 2007: February 1.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for ontario

Criminal law — Evidence — Admissibility — Post‑hypnosis evidence — Whether post‑hypnosis evidence presumptively inadmissible for evidentiary purposes — Whether such evidence satisfies test for admissibility of novel scientific evidence.

Criminal law — Evidence — Admissibility — Similar fact evidence — Accused convicted of second degree murder of girlfriend — Around time of murder neighbour hearing man banging on door to victim’s apartment and eventually hearing door open to admit him — Accused’s former girlfriend testifying that following their breakup two years earlier accused returned to her apartment and banged on door demanding entry but she did not open door — Whether trial judge erred in admitting similar fact evidence — Whether evidence of sufficient probative value to outweigh its prejudicial effect.

Criminal law — Appeals — Powers of Court of Appeal — No substantial wrong or miscarriage of justice — Accused convicted of second degree murder of girlfriend — Whether trial judge erred in admitting post‑hypnosis and similar fact evidence — If so, whether curative proviso applicable to uphold conviction — Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1)(b)(iii).

T was charged with second degree murder. Forensic evidence established that H, who was T’s girlfriend, had been killed in the early hours of Wednesday, October 14, 1992, but that her body had been repositioned some eight to twelve hours after the murder. Late Tuesday, October 13, or in the early morning hours of Wednesday, October 14, a neighbour, G, heard a man banging on the door to H’s apartment, demanding to be let in. Although she did not see the man, G testified she eventually heard the door open to admit him. Given the estimated time of death, it was likely that the man who entered the apartment at that time was the killer. G also testified at trial that she saw T leaving H’s apartment around 3:00 p.m. on Wednesday afternoon. In G’s initial statements to police, she stated that she had seen T on Thursday afternoon, not Wednesday. It was only after undergoing hypnosis at the request of police investigators that G stated that she had seen T on Wednesday afternoon. Several of H’s friends also testified at trial that T was a jealous and obsessive partner who could not tolerate the thought of her leaving him. A former girlfriend, O, testified that following T’s breakup with her two years earlier, he returned to her apartment and banged on the door, demanding to be allowed entry, but that she did not open the door. T, who testified in his own defence, claimed that it was he who had ended the relationship with H that night and that when he left H’s apartment at 12:30 a.m., she was still alive. He denied going back to her apartment on Wednesday, but admitted returning to the apartment building on that day to retrieve his car from the parking garage. To support his claim, T adduced evidence that he was at work at the time G claimed to have seen him leaving H’s apartment on Wednesday afternoon.

The trial judge admitted G’s post‑hypnosis testimony and the similar fact evidence regarding T’s conduct upon the termination of his prior relationship. Because of an agreement between T’s counsel and the Crown, jurors were not informed that G had been hypnotized, that she had initially told police she saw T on Thursday, nor did they hear expert evidence on the reliability of post‑hypnosis testimony. T was convicted and the Court of Appeal affirmed the conviction.

Held (Bastarache, Abella and Rothstein JJ. dissenting): The appeal should be allowed, the conviction set aside and a new trial ordered.

Per McLachlin C.J. and Binnie, LeBel, Deschamps and Fish JJ.: The trial judge erred in assuming that post‑hypnosis evidence is admissible where the guidelines that were adopted in Clark are followed. This is an error, both because post‑hypnosis evidence does not meet the requirements for the admissibility of novel scientific evidence and because the guidelines themselves are insufficient. Such evidence is presumptively inadmissible for evidentiary purposes. While the guidelines play an important role in limiting the possible exertion of influence during a hypnosis session, they are problematic in that they are based on an assumption that the underlying science of hypnosis is itself reliable in the context of judicial proceedings. When the factors for evaluating the reliability of novel scientific evidence are applied, it becomes evident that the technique of hypnosis and its impact on human memory are not understood well enough for post‑hypnosis testimony to be sufficiently reliable in a court of law. Although hypnosis has been the subject of numerous studies, these studies are either inconclusive or draw attention to the fact that hypnosis can, in certain circumstances, result in the distortion of memory. The potential rate of error in the additional information obtained through hypnosis when it is used for forensic purposes is also troubling. At the present time, there is no way of knowing whether such information will be accurate or inaccurate. Such uncertainty is unacceptable in a court of law. Furthermore, while the guidelines aid significantly in ensuring that the hypnotist and police make as few involuntary suggestions as possible, they afford no protection against external sources of influence or against the other problems associated with hypnosis, such as the creation of hallucinated or false memories (confabulation), an increase in detail without sufficient assurances that this new information will be accurate, and memory hardening. Given these problems, the danger that the accused will be denied a fair hearing is obvious. In the instant case, G’s two conversations with police prior to the hypnosis session may have left her with a conscious or subconscious belief regarding the right answer to the question whether she saw T on Wednesday or Thursday afternoon, even if the police sought in all good faith to avoid influencing her testimony. Unless a litigant reverses the presumption of inadmissibility, post‑hypnosis testimony should not be admitted as evidence. The inadmissibility of post‑hypnosis testimony does not mean that hypnosis may not be used in other contexts. However, investigators must be conscious of the potential consequences of hypnotizing a witness. [13] [24] [27] [44] [55‑56] [61] [63]

While the trial judge should not admit evidence on topics covered during the hypnosis session, he or she may consider it appropriate to admit evidence on topics that were not touched on during the session if he or she is satisfied that the detrimental effects are outweighed by the probative value of the testimony. In such cases, the trial judge must mention to the jury the potential frailties of such evidence and give proper instructions concerning the effect of hypnosis on the weight of the testimony. [64‑65]

The similar fact evidence was also inadmissible. The fact that T, had, on one previous occasion, banged on a girlfriend’s door after their relationship ended is not sufficiently probative to outweigh the potential prejudicial effect of admitting that evidence for the purpose of identifying him as the killer. This evidence did not meet the objective test of “improbability of coincidence” for admitting similar fact evidence. A single incident rarely evidences a pattern. Further, given the generic quality of the acts, the admission of the ex‑girlfriend’s evidence was highly problematic. Banging on a door cannot be characterized as “distinct” or “unique” conduct that is somehow identifiable with a particular accused. Not only did this evidence lack probative value on the issue of identity, but it was also highly prejudicial, particularly in light of how it was used by the Crown in its closing statements and by the trial judge in his instructions to the jury. [74‑78] [83]

Finally, the curative proviso of s. 686(1)(b)(iii) of the Criminal Code is not applicable to uphold the conviction. Once the post‑hypnosis evidence, considered critical by the Crown and characterized as significant by the judge, and the similar fact evidence are excluded, the remaining evidence cannot be said to be “so overwhelming” as to conclude that the trier of fact would inevitably have convicted. [83]

Per Charron J.: Those parts of the testimony of a witness who has undergone hypnosis that were not the subject‑matter of the hypnosis should be admitted. In such cases, it would not be necessary for the proponent of the evidence to show that the detrimental effects of the hypnosis are overcome by the probative value of the testimony. The trial judge should also have the discretion to admit post‑hypnosis testimony when the proposed testimony is shown to be entirely based on the witness’s pre‑hypnosis memories. While there may be lingering detrimental effects flowing from the hypnosis, proof of the consistent pre‑hypnosis statement can constitute sufficient rehabilitation of the witness to warrant admission of the testimony. Finally, in all cases where the testimony of a witness who has undergone hypnosis is admitted, it should be left to the discretion of the trial judge to determine whether expert evidence is necessary to explain those effects and whether any special instruction is called for to assist the jury in its assessment of the evidence. [87‑89]

Per Bastarache, Abella and Rothstein JJ. (dissenting): The post‑hypnosis evidence should not be excluded. While a better evidentiary foundation in a future case may perhaps demonstrate that it is time for Canadian courts to reconsider the long‑standing admissibility rule for hypnotically refreshed memories, that decision cannot be made in this case. It is only before this Court and the Court of Appeal that T sought to challenge the long‑standing admissibility rule for post‑hypnosis testimony. No direct expert evidence was presented in order to properly challenge why the rule should no longer be accepted. The sole evidence advanced before this Court on the hypnosis issue was a handful of American cases in which the courts have opted for categorical exclusion. This is not a sufficient evidentiary foundation upon which this Court should overturn a long‑standing Canadian common law rule. A complete exclusion of post‑hypnosis evidence in all cases is not appropriate, as this could deprive the trier of fact of relevant, probative, and critical evidence. This would also pose a problem regarding the constitutional rights of an accused who has undergone hypnosis. The admissibility of such evidence should always be determined on a case‑by‑case basis. Here, the admission of the post‑hypnosis evidence was not problematic. The trial judge held a voir dire to determine its admissibility and was alerted to the potential dangers of such evidence. Having found substantial compliance with the guidelines designed to assist a hypnotist in improving the reliability of evidence obtained under hypnosis, as well as having been shown through the Crown's cross‑examination that the concerns raised by the defence experts were not live ones with respect to G's evidence, the trial judge ruled the evidence admissible because he was satisfied that it was sufficiently reliable to be put to the jury. The trial judge saw his role as ensuring that the hypnotically enhanced memories met an acceptable level of reliability, and not simply ensuring that the guidelines were followed. The evidence was highly relevant to the Crown’s case and was shown to be quite credible, and the trial judge made no error in admitting it. [91] [137] [147‑148] [151] [160]

The approach to hypnotically refreshed evidence as novel science raises concerns not only with respect to the views on the admissibility of such evidence, but also with respect to the implications for the admissibility of scientific evidence in future cases. First, characterizing hypnosis as novel science ignores the fact that the technique has been used in Canada for almost 30 years, and has been employed in Canadian criminal investigations to assist in memory retrieval for a similar length of time. While the use of forensic hypnosis has not been assessed under the framework to determine admissibility of novel scientific evidence, this does not mean that evidence derived from this technique has been admitted into trials without sufficient scrutiny of its reliability. Very few Canadian courts have admitted hypnosis evidence without a voir dire as to its admissibility. Second, the test for assessing the reliability of scientific evidence is not new law requiring that scientific methods, previously accepted as legitimate by our courts, must now be resubmitted for scrutiny. Rather, the test emphasizes the need for courts to give special scrutiny to novel science or the new application of a recognized science, through a case‑by‑case evaluation, in light of the changing nature of our scientific knowledge. The test was not intended to set down a rigid formula where the results must be proved beyond a reasonable doubt before scientific evidence can be admitted. The factors adopted were designed to be flexible and non‑exclusive. Third, the test was not meant to require a standard of total consensus by members of the scientific community. Total unanimity, which is a standard akin to the “general acceptance” test recently rejected by this Court, is impossible to obtain and therefore completely unrealistic to expect. To require such a high standard of reliability will result in the exclusion of far too much relevant and probative evidence. Finally, it is especially problematic to adopt a general exclusionary rule towards hypnosis evidence by relying almost exclusively on the position of experts discussed in American cases cited. To rely on expert evidence heard in other cases deprives a party of the right to present contrary evidence or to cross‑examine the experts who maintain such a position. A court should never take judicial notice of expert evidence. [115] [131‑132] [134] [136] [138‑144]

Concerns raised regarding hypnosis are not new or insurmountable and are taken into account by trial judges in virtually every voir dire held to determine the admissibility of hypnotically refreshed memories. It would be unreasonable to expect hypnotically refreshed memories to be more reliable than regular memories, which, like hypnotically refreshed memories, are not immune to external sources of suggestion. There is no guarantee with respect to the accuracy of such ordinary memories either. Judges know these risks, yet they do not deem such evidence inadmissible. These sorts of potential frailties with memory, whether ordinary or hypnotically refreshed, are those that juries are quite capable of weighing. The problem with regard to cross‑examining a witness whose memory has been refreshed through hypnosis — the impossibility of challenging the veracity of his or her memory — also arises in the context of a witness whose evidence is presented through past recollections recorded. This has not provoked courts to categorically exclude such evidence. Courts have been satisfied by the fact that witnesses can be cross‑examined about how their memories were recalled, the circumstances surrounding the recall, and prior inconsistent statements. There is no reason why the situation should be any different for hypnotically refreshed memories. Appellate courts must have faith in the intelligence and common sense of juries and in the ability of trial judges to properly charge them. In this case, the only aspect of G’s testimony refreshed through hypnosis concerned the day the sighting occurred. Whether the sighting occurred on one day or the next does not change the significance of the evidence. To exclude all of G’s evidence when only this point was clarified through hypnosis is an inflexible and disproportionate solution. [114] [149] [152] [154] [156]

While juries should generally be informed of efforts to enhance a witness’s memory, there is no absolute rule on this point and agreements between counsel not to put the issue of hypnosis to the jury should be respected where no prejudice is shown to have been caused to a party. [159]

The trial judge erred in admitting O’s similar fact evidence adduced on the issue of identity. There is nothing particularly distinctive about banging or knocking on a door to warrant the characterization as a “trademark”. As well, the number of these incidents renders them insufficient to support such a determination. [185] [187]

While the admission of the similar fact evidence was an error, the evidence against T was overwhelming, and the curative proviso of s. 686(1)(b)(iii) of the Criminal Code should be applied to uphold the conviction. Absent the similar fact accepted in evidence, there was still sufficient evidence to support the inference that T was the person banging on the victim’s door the night of her death. There is no reasonable possibility that the verdict would have been different without the error. [189‑191]

Cases Cited

By Deschamps J.

Applied: R. v. J.‑L.J., [2000] 2 S.C.R. 600, 2000 SCC 51; not followed: R. v. Clark (1984), 1984 CanLII 1177 (AB KB), 13 C.C.C. (3d) 117; referred to: United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; State v. Hurd, 414 A.2d 291 (1980); People v. McDowell, 427 N.Y.S.2d 181 (1980); R. v. Bernier, [2004] Q.J. No. 11567 (QL); R. v. Sanchez‑Flores, [1993] O.J. No. 4161 (QL); R. v. O’Brien (1992), 1992 CanLII 4787 (NS CA), 117 N.S.R. (2d) 48; R. v. Savoy, [1997] B.C.J. No. 2747 (QL); R. v. Taillefer (1995), 1995 CanLII 4592 (QC CA), 100 C.C.C. (3d) 1; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; Burral v. State, 724 A.2d 65 (1999); State v. Moore, 902 A.2d 1212 (2006); R. v. Terceira, 1999 CanLII 645 (SCC), [1999] 3 S.C.R. 866; R. v. Hibbert, [2002] 2 S.C.R. 445, 2002 SCC 39; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); R. v. McFelin, [1985] 2 N.Z.L.R. 750; R. v. G., [1996] 1 N.Z.L.R. 615; R. v. Haywood (1994), 73 A. Crim. R. 41; Harding v. State, 246 A.2d 302 (1968); People v. Shirley, 723 P.2d 1354 (1982); Rock v. Arkansas, 483 U.S. 44 (1987); R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481; R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339; R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56; R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717; Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; R. v. Proctor (1992), 1992 CanLII 2763 (MB CA), 11 C.R. (4th) 200; R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86; R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909.

By Bastarache J. (dissenting)

R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72; R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670; R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933; R. v. Clark (1984), 1984 CanLII 1177 (AB KB), 13 C.C.C. (3d) 117; R. v. J.‑L.J., [2000] 2 S.C.R. 600, 2000 SCC 51; R. v. Pitt, 1967 CanLII 548 (BC SC), [1968] 3 C.C.C. 342; R. v. K., 1979 CanLII 3061 (MB PROVJCT), [1979] 5 W.W.R. 105; Horvath v. The Queen, 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376; State v. Brown, 337 N.W.2d 138 (1983); State v. Jorgensen, 492 P.2d 312 (1971); State v. Glebock, 616 S.W.2d 897 (1981); Prime v. State, 767 P.2d 149 (1989); R. v. Zubot (1981), 47 A.R. 389; R. v. Hart, [1990] O.J. No. 2678 (QL); R. v. Sanchez‑Flores, [1993] O.J. No. 4161 (QL); R. v. Gauld, [1994] O.J. No. 1477 (QL); R. v. Taillefer (1995), 1995 CanLII 4592 (QC CA), 100 C.C.C. (3d) 1; R. v. Savoy, [1997] B.C.J. No. 2747 (QL); R. v. Terceira (1998), 1998 CanLII 2174 (ON CA), 38 O.R. (3d) 175, aff’d 1999 CanLII 645 (SCC), [1999] 3 S.C.R. 866; R. v. B. (A.) (2004), 2004 CanLII 41327 (QC CQ), 27 C.R. (6th) 283; R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481; R. v. Medvedew (1978), 1978 CanLII 2101 (MB CA), 43 C.C.C. (2d) 434; R. v. Nielsen (1984), 1984 CanLII 40 (MB CA), 16 C.C.C. (3d) 39; R. v. Melaragni (1992), 1992 CanLII 12764 (ON SC), 73 C.C.C. (3d) 348; R. v. Johnston (1992), 1992 CanLII 12790 (ON SC), 69 C.C.C. (3d) 395; R. v. Dieffenbaugh (1993), 1993 CanLII 6878 (BC CA), 80 C.C.C. (3d) 97; R. v. J.E.T., [1994] O.J. No. 3067 (QL); R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 117 C.C.C. (3d) 385; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Frye v. United States, 293 F. 1013 (1923); State v. Moore, 852 A.2d 1073 (2004); R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43; R. v. Sappier, [2006] 2 S.C.R. 686, 2006 SCC 54; R. v. Fliss, [2002] 1 S.C.R. 535, 2002 SCC 16; R. v. Meddoui (1990), 1990 CanLII 2592 (AB CA), 61 C.C.C. (3d) 345; R. v. Holmes (1989), 1989 CanLII 3450 (AB KB), 99 A.R. 106; Rock v. Arkansas, 483 U.S. 44 (1987); R. v. B. (S.C.) (1997), 1997 CanLII 6319 (ON CA), 36 O.R. (3d) 516; R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 117 C.C.C. (3d) 226; R. v. Ménard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109; R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129; R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71; R. v. Bennett (2003), 2003 CanLII 21292 (ON CA), 179 C.C.C. (3d) 244; R. v. Stark (2004), 2004 CanLII 39012 (ON CA), 190 C.C.C. (3d) 496; R. v. Turcotte, [2005] 2 S.C.R. 519, 2005 SCC 50; Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640, R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151; R. v. Hibbert, [2002] 2 S.C.R. 445, 2002 SCC 39; R. v. Lyttle, [2004] 1 S.C.R. 193, 2004 SCC 5; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. R. (A.J.) (1994), 1994 CanLII 3447 (ON CA), 94 C.C.C. (3d) 168; Markadonis v. The King, 1935 CanLII 44 (SCC), [1935] S.C.R. 657; R. v. Yakeleya (1985), 1985 CanLII 5993 (ON CA), 46 C.R. (3d) 282; R. v. W.J.M. (1995), 1995 CanLII 1299 (ON CA), 82 O.A.C. 130; R. v. Ellard (2003), 172 C.C.C. (3d) 28, 2003 BCCA 68; R. v. White (1999), 1999 CanLII 3695 (ON CA), 132 C.C.C. (3d) 373; R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262; R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339; R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56; R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599; R. v. Charlebois, [2000] 2 S.C.R. 674, 2000 SCC 53; R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C. 1985, c. C‑46, s. 686(1)(b)(iii).

Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, s. 78.

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Fleming, Thomas M. Annotation, “Admissibility of Hypnotically Refreshed or Enhanced Testimony”, 77 A.L.R.4th 927 (1990 & Supp. 2006).

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APPEAL from a judgment of the Ontario Court of Appeal (Catzman, Weiler and MacPherson JJ.A.) (2004), 2004 CanLII 1262 (ON CA), 71 O.R. (3d) 611, 188 O.A.C. 330, 186 C.C.C. (3d) 417, 24 C.R. (6th) 388, [2004] O.J. No. 2850 (QL), affirming the accused’s conviction. Appeal allowed, Bastarache, Abella and Rothstein JJ. dissenting.

James Lockyer and C. Anik Morrow, for the appellant.

Kenneth L. Campbell and Howard Leibovich, for the respondent.

The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps and Fish JJ. was delivered by

1 Deschamps J. — In recent years, a number of public inquiries have highlighted the importance of safeguarding the criminal justice system — and protecting the accused who are tried under it — from the possibility of wrongful conviction. As this Court has previously noted, “[t]he names of Marshall, Milgaard, Morin, Sophonow and Parsons signal prudence and caution in a murder case”: United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at para. 1. In the case at bar, we consider once again the need to carefully scrutinize evidence presented against an accused for reliability and prejudicial effect, and to ensure the basic fairness of the criminal process. More specifically, the decisions at trial to admit post-hypnosis evidence and similar fact evidence in this case constitute errors of law that are neither harmless nor negligible. This is not a case where the remaining evidence is so overwhelming that I can conclude that a conviction would inevitably have been entered by the trier of fact had the evidence in issue not been adduced. I would set aside the conviction and order a new trial.

2 This case raises a number of legal issues, each of which arises out of an intricate factual context. I will therefore begin with a general overview of the facts and of the decisions of the courts below, and will go into greater detail on the two grounds that are, in my view, determinative of the outcome of this appeal.

I. Facts

3 On July 6, 1995, the appellant, Stephen Trochym, was convicted of second degree murder by a judge sitting with a jury. The deceased, Donna Hunter, was the appellant’s girlfriend of almost one year.

4 Ms. Hunter was last seen alive late on Tuesday, October 13, 1992, or in the early hours of Wednesday, October 14. The Crown’s theory at trial was that the appellant had killed Ms. Hunter in a fit of rage after she had attempted to end their troubled relationship. Several of Ms. Hunter’s friends testified that the appellant was a jealous and obsessive partner who could not tolerate the thought of her leaving him. However, the appellant, who testified in his own defence, claimed that it was he who had ended the relationship that night and that when he left Ms. Hunter’s apartment at 12:30 a.m., she was still alive.

5 Late on Tuesday, October 13, or in the early morning hours of Wednesday, October 14, Gity Haghnegahdar, a neighbour of Ms. Hunter’s, heard a man banging on the door of the deceased’s apartment, demanding to be let in. Although she did not see the man, Ms. Haghnegahdar heard the door eventually open to admit him. Given the estimated time of death, it was likely that the man who entered the apartment at that time was Ms. Hunter’s killer. Establishing that it was the appellant knocking at the door was a key aspect of the Crown’s case. To this end, the Crown was permitted to adduce evidence that following Mr. Trochym’s breakup with a previous girlfriend (Darlene Oliphant) two years earlier, he had returned to her apartment and banged on the door, demanding to be let in.

6 The neighbour, Ms. Haghnegahdar, also testified at trial that she had seen the appellant leaving Ms. Hunter’s apartment around 3:00 p.m. on Wednesday afternoon. This testimony was considered critical by the Crown and was characterized as significant by the trial judge. The Crown sought to use it to establish that Mr. Trochym had returned to Ms. Hunter’s apartment in the afternoon after the murder to “stage the scene” of the crime. By removing some personal effects and moving the body to make it appear as though the murder had been sexually motivated, the Crown argued, the appellant sought to distract attention from himself. The Crown’s theory was supported by forensic evidence that established that the deceased had been killed in the early hours of Wednesday morning, but that her body had been repositioned some eight to twelve hours after the murder.

7 A key fact on appeal, however, was Ms. Haghnegahdar’s statement, when first interviewed by the police, that she had seen the appellant on Thursday afternoon, not Wednesday. It was only after undergoing hypnosis at the request of police investigators that Ms. Haghnegahdar stated that she had seen the accused on Wednesday afternoon.

8 The appellant denied having returned to Ms. Hunter’s apartment, but admitted that he had returned to the apartment building to retrieve his car from the parking garage on Wednesday. To support his claim, Mr. Trochym adduced evidence that he was at work at the time the witness claimed to have seen him leaving the deceased’s apartment on Wednesday afternoon. The Crown argued that the appellant’s evidence on this point was concocted and further argued that the appellant’s demeanour in the days subsequent to the discovery of the deceased’s body was evidence of consciousness of guilt. When asked to attend a second meeting with the police, the appellant had made excuses not to attend, claiming that he was otherwise occupied with a darts game and a haircut appointment. Mr. Trochym testified at trial that he had been attempting to “stall” until he could consult with counsel, but the Crown suggested to the jury that the appellant’s post-offence conduct established that the appellant had lied when he claimed he wanted to help officers with their investigation, and that this was evidence of consciousness of guilt, because the appellant was evading police. Although this evidence was admitted, the trial judge instructed the jury that it “would be completely wrong to draw any adverse inference against the [appellant] from his desire to stall for time because he wanted to consult with a lawyer” (A.R., at p. 3736).

9 Following a 14-week trial, Mr. Trochym was convicted of second degree murder on July 6, 1995. His appeal to the Court of Appeal for Ontario was dismissed on July 5, 2004 ((2004), 2004 CanLII 1262 (ON CA), 71 O.R. (3d) 611). He applied for and was granted leave to appeal to this Court.

II. Decisions Below

10 The trial judge admitted Ms. Haghnegahdar’s post-hypnosis testimony and also admitted the “similar fact” evidence of Darlene Oliphant regarding the appellant’s conduct upon the termination of their relationship. The Ontario Court of Appeal declined to find that the trial judge had erred in allowing this evidence, and dismissed the appeal. MacPherson J.A., writing for the court, also rejected a number of other grounds of appeal that have been raised again before this Court. More specifically, he held that the trial judge had not erred in dealing with the appellant’s post-offence conduct, or with the Crown’s assertion that the appellant had concocted evidence to show that he could not be the person who had staged the crime scene. Nor, MacPherson J.A. held, had the Crown’s cross-examination of the appellant rendered the trial unfair.

11 For the purposes of this appeal, it will not be necessary to deal with all of the grounds of appeal. As I mentioned earlier, two issues, namely those concerning the post-hypnosis evidence and the purported similar fact evidence, are determinative. I will elaborate further on the reasoning of the Ontario Superior Court of Justice and the Ontario Court of Appeal in relation to those grounds of appeal.

III. Positions of the Parties in This Appeal

12 Mr. Trochym requests that his conviction for second degree murder be set aside and a new trial ordered. On the hypnosis issue, he advocates the automatic exclusion of such evidence. He also requests the Court to exclude the similar fact evidence. The Crown submits that none of the grounds of appeal warrant intervention and that the appeal should be dismissed. In the event that the trial judge erred, the Crown argues, this Court should apply the curative proviso of s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46. The question before this Court, therefore, is whether the trial judge erred in conducting the appellant’s trial and, if so, whether the evidence is so overwhelming that the error did not cause any “substantial wrong or miscarriage of justice”.

IV. Analysis

A. Post-Hypnosis Evidence

13 I will begin by presenting a detailed summary of the facts relating to the use of hypnosis in this case and review the findings of the courts below. I will then determine whether this evidence is admissible in accordance with the test for novel scientific evidence set out in R. v. J.-L.J., [2000] 2 S.C.R. 600, 2000 SCC 51. In view of my conclusion that post-hypnosis evidence is presumptively inadmissible for evidentiary purposes, I will then conclude by discussing whether the technique of hypnosis may be used in a more limited way.

(1) Summary of Facts on the Issue of Hypnosis

14 Police first interviewed Gity Haghnegahdar about the murder of Donna Hunter on Saturday, October 17, 1992, four days after the murder. At that time, Ms. Haghnegahdar told police officers that she had seen Mr. Trochym come out of Ms. Hunter’s apartment on the afternoon of Thursday, October 15. When police investigators interviewed the appellant, he claimed that the last time he had been in the apartment was in the early morning hours of Wednesday, October 14, but that he had returned to the building on Wednesday afternoon to retrieve his car. The building superintendent confirmed that he had spoken with the appellant on Wednesday afternoon and had let him into the underground garage. Another neighbour, Phyllis Humenick, also stated that she had seen Mr. Trochym in the building on Wednesday afternoon. The evidence given by Ms. Humenick at the preliminary hearing was read in at trial; she was unable to attend because of a mental health disorder.

15 Around this time, the police also learned from the autopsy that Ms. Hunter’s body had been moved some eight to twelve hours after her death.

16 Police investigators determined that Ms. Haghnegahdar’s information was very significant. If she was correct, then the appellant had lied to the police about not returning to the apartment. If she had mistaken the day, then Mr. Trochym may have been the one who moved the body. The police interviewed Ms. Haghnegahdar again on October 18. In this interview, the following exchange occurred about the timing of the sighting:

CLARKE: Now what makes you remember that this is Thursday?

HAGHNEGAHDAR: Because Friday ah I – I saw them a many times to ah together.

CLARKE: Yes.

HAGHNEGAHDAR: Because Friday my school friend came to my apartment, we had a coffee and she left.

CLARKE: Yes.

HAGHNEGAHDAR: That’s why I say it’s Thursday, I hope it wasn’t Wednesday because ah I think it was Thursday, yeah.

CLARKE: That’s – that’s what really I’m – I’m asking ah why you remember it’s Thursday ah you’re definite it wasn’t Friday?

HAGHNEGAHDAR: Oh.

CLARKE: What – what –

HAGHNEGAHDAR: (Inaudible).

CLARKE: – are the possibilities that it was Wednesday, is there any possibility, can you remember what you did on Wednesday?

HAGHNEGAHDAR: Wednesday? I don’t remember Wednesday very well but I remember Friday, I remember a little bit of Thursday.

CLARKE: Okay.

HAGHNEGAHDAR: I don’t remember Wednesday because I don’t remember what did – what did I do at Wednesday. Often I came home after school. Sometimes I go to the library.

CLARKE: Yeah.

HAGHNEGAHDAR: And most of time ah the Thursday I came straight home and I – I came home to my apartment (inaudible).

HAGHNEGAHDAR: I think [it] was Thursday, yes.

(A.R., at pp. 3946-48)

Following this interview, the police asked Ms. Haghnegahdar on November 4 to undergo hypnosis in order to improve her memory, and she agreed to do so. She was not given any further information by the police.

17 Ms. Haghnegahdar was hypnotized by Dr. George Matheson on November 8, 1992. At that time, Dr. Matheson was a registered psychologist with over 20 years experience who had previously interviewed witnesses both for the Crown and for defence counsel.

18 While under hypnosis, Ms. Haghnegahdar said that she remembered seeing the appellant exit the deceased’s apartment at around 3:00 p.m., after she came home from school. She related this sighting to the fact that her daughter had had a piano lesson, and that the piano lessons were on Wednesdays. During a post-hypnosis interview with the police, Ms. Haghnegahdar adopted these memories, stating that she must have seen the appellant on Wednesday afternoon. Ms. Haghnegahdar also provided further detail about the jacket the accused was wearing when she saw him, saying that it was a leather jacket or a windbreaker. In the hypnosis session, the hypnotist had asked the following question about the jacket the man was wearing: “Is it a sports jacket or windbreaker [or] what?”

19 At trial, Ms. Haghnegahdar testified that she had seen the appellant leaving Ms. Hunter’s apartment at around 3:00 p.m. on Wednesday afternoon. The jurors were not informed that Ms. Haghnegahdar had been hypnotized, that she had initially told police she saw the appellant on Thursday, nor did they hear expert evidence on the reliability of post-hypnosis testimony.

(2) Decisions of the Courts Below on the Issue of Post-Hypnosis Testimony

20 Mr. Trochym objected to the admissibility of Ms. Haghnegahdar’s post-hypnosis “memories”. On April 5, 1995, after a lengthy voir dire at which the evidence of three expert witnesses was considered, the trial judge held that the post-hypnosis evidence was admissible and that it would be for the jury to determine the weight it was to be given. In particular, the trial judge found that the hypnotist, Dr. Matheson, had substantially complied with the guidelines set out by the Alberta Court of Queen’s Bench in R. v. Clark (1984), 1984 CanLII 1177 (AB KB), 13 C.C.C. (3d) 117, which had been adopted in a number of Ontario decisions. In summarizing the expert testimony, the trial judge noted that hypnosis may increase the number of details recalled, but that the “recovered memories” may or may not be accurate (A.R., at p. 30). Rather than excluding the post-hypnosis evidence, the trial judge observed, where the evidence sought to be introduced is from a witness other than the accused, “it is necessary for the Court to embark upon the process of weighing the probative value of the evidence against the potential for prejudice, but always with the presumption being in favour of admissibility subject to weight” (A.R., at p. 25).

21 Following this ruling, and in view of the evidence that the jury might have an unjustified faith in post-hypnosis memory, counsel for Mr. Trochym entered into an agreement with the Crown that the defence would not cross-examine Ms. Haghnegahdar on her previous inconsistent statements to police (i.e. that she had seen the appellant on Thursday) if the Crown in turn refrained from mentioning that Ms. Haghnegahdar had undergone hypnosis. The trial judge accepted this agreement and the jurors were thus unaware that Ms. Haghnegahdar had been hypnotized, that her recollection had changed and that there had been some disagreement among the expert witnesses regarding the reliability of post-hypnosis memories.

22 Writing for the Ontario Court of Appeal, MacPherson J.A. declined to categorically exclude all post-hypnosis evidence. He concluded that post-hypnosis evidence ought to be dealt with on a case-by-case basis and held that, in the instant case, the trial judge had properly exercised his discretion to admit the evidence.

23 The appellant further argued in the Court of Appeal that the trial judge had erred in giving effect to the agreement between the parties that the defence would not cross-examine Ms. Haghnegahdar on her prior inconsistent statements if the Crown refrained from disclosing to the jury the fact that she had been hypnotized. MacPherson J.A. disagreed, holding that the agreement was a tactical decision and that the appellant could not now take issue with it.

(3) Analysis on the Issue of Post-Hypnosis Testimony

24 This case represents the first opportunity this Court has had to consider the admissibility of post-hypnosis evidence. The Court’s framework for assessing novel science ensures that only scientific opinions based on a reliable foundation are put to the trier of fact (J.-L.J., at para. 33), and the same principle applies to scientific techniques. Just as financial results contained in a report must be found to be prepared on the basis of a technique that has a reliable scientific foundation, post-hypnosis memories must be demonstrated to be sufficiently reliable before being put to the trier of fact. The “gatekeeper function” of the courts referred to in J.-L.J. (at para. 1) is thus as important when facts extracted through the use of a scientific technique are put to the jury as when an opinion is put to the jury through an expert who bases his or her conclusions on a scientific technique. As I will explain, the trial judge’s error was to assume that post-hypnosis evidence is admissible provided that the Clark guidelines are followed. This is an error, both because the Clark guidelines themselves are insufficient and because post-hypnosis evidence does not meet the requirements of J.-L.J. I will consider both these points in turn.

(a) Problems With the Clark Guidelines

25 In the case at bar, the trial judge assessed the reliability of the post-hypnosis evidence based on the factors set out in Clark. In that case, the accused was charged with two counts of first degree murder. He had no memory of the events until he was hypnotized. While there was no dispute that the accused had committed the acts with which he was charged, the issue at trial was his intent and mental capacity at the relevant time. Wachowich J. noted concerns regarding the use of hypnosis, but concluded that it would only be in an “extraordinary case” that a court would preclude a witness from testifying after having his or her memory stimulated by hypnosis (p. 123). However, he held that “the content of the hypnosis session is a proper subject for inquiry at the trial because it bears heavily on the credibility of the witness and the weight to be given his evidence” (p. 124). To this end, Wachowich J. set out a number of principles that should guide a hypnotist during a hypnosis session. These guidelines, he observed, would improve the reliability of evidence obtained under hypnosis.

26 Drawn from the American cases of State v. Hurd, 414 A.2d 291 (N.J. Sup. Ct. 1980), and People v. McDowell, 427 N.Y.S.2d 181 (Sup. Ct. 1980), the Clark guidelines are as follows (Clark, at p. 125):

(1) The person conducting the hypnotic interview should be a qualified professional . . . .

(2) The hypnotist must be independent of the party who requires his services. . . .

(3) The hypnotist should be given only the minimum amount of information necessary to conduct the interview. . . .

(4) The entire interview between the hypnotist and the potential witness should be recorded preferably on video tape . . . .

(5) The interview should be conducted with only the hypnotist and the subject present. . . .

(6) Prior to the actual hypnosis of the subject, the hypnotist should conduct a lengthy interview of the subject to determine his medical history including information about the present or past use of drugs. . . .

(7) Prior to hypnosis, the hypnotist should elicit from the subject a detailed description of the facts surrounding the subject‑matter of the hypnosis session, as the subject is able to recall them at that point in time.

(8) The hypnotist should pay careful attention to the form and manner of his questions, the choice of his words and the avoidance of body language so that he is not either intentionally or inadvertently providing the subject with information.

The Clark test has been adopted by a number of courts in Canada (see, e.g., R. v. Bernier, [2004] Q.J. No. 11567 (QL) (Sup. Ct.); R. v. Sanchez-Flores, [1993] O.J. No. 4161 (QL) (Gen. Div.); R. v. O’Brien (1992), 1992 CanLII 4787 (NS CA), 117 N.S.R. (2d) 48 (S.C. App. Div.); and R. v. Savoy, [1997] B.C.J. No. 2747 (QL) (S.C.).

27 The guidelines are intended to limit the possibility of a hypnotist influencing, inadvertently or not, the persons being hypnotized, thereby tainting the witness’s evidence. While they play an important role in limiting the possible exertion of influence during a hypnosis session, the guidelines are problematic in that they are based on an assumption that the underlying science of hypnosis is itself reliable in the context of judicial proceedings. Reliability is an essential component of admissibility. Whereas the degree of reliability required by courts may vary depending on the circumstances, evidence that is not sufficiently reliable is likely to undermine the fundamental fairness of the criminal process.

28 The probative value of post-hypnosis memories cannot be assessed without also inquiring into the reliability of the scientific technique that enabled them to arise. This concern was highlighted in R. v. Taillefer (1995), 1995 CanLII 4592 (QC CA), 100 C.C.C. (3d) 1, in which the Quebec Court of Appeal held that the trial judge had erred in not allowing the defence to challenge the reliability of hypnosis on voir dire. Proulx J.A., writing for the court, stated the following at p. 22:

[translation] [H]ypnosis employed as a technique to stimulate memory even today raises serious questions about its reliability [and] the appellants’ objections as to the reliability of the method and the qualifications of the police officer offered as an expert should not have been dismissed, from the very outset, solely on the ground that this method has been accepted by some Canadian courts.

Although Proulx J.A. declined to make a finding on the reliability of hypnosis in the judicial context because insufficient evidence had been submitted at trial, he noted that as a result of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, [translation] “[the] admissibility or . . . validity of scientific evidence based on a theory which has not yet been widely accepted, or the accuracy of which has not been determined, is now subject to a threshold test of reliability” (Taillefer, at p. 21).

29 It should be noted that Hurd, which formed the basis for the Clark guidelines, has come to be revisited, in part as a result of the views expressed since then by Dr. Martin Orne, whose expert testimony had played a central role in that case. Dr. Orne subsequently warned that “hypnotically induced memories should never be permitted to form the basis for testimony by witnesses or victims in a court of law”: Burral v. State, 724 A.2d 65 (Md. 1999), at p. 81 (emphasis in original). He was of the view that “there is a considerable risk that the inherent unreliability of information confidently provided by a hypnotized witness may actually be detrimental to the truth-seeking process” (State v. Moore, 902 A.2d 1212 (N.J. 2006), at p. 1228). After reconsidering the inherent unreliability of post-hypnosis testimony, New Jersey joined the 26 states in the United States that limit the admissibility of post-hypnosis testimony. In New Jersey, post-hypnosis testimony is now generally inadmissible in a criminal trial (Moore, at p. 1213).

30 Since the Clark guidelines are derived from Dr. Orne’s testimony in Hurd, it would be disturbing for this Court to blind itself to the subsequent developments in the American cases. With the basic reliability of post-hypnosis evidence increasingly in question, judicial approaches to such evidence have tended to shift from an assessment of the weight to be attributed to post-hypnosis testimony to whether it should even be admissible.

(b) The Court’s Approach to Evidence Involving Science

31 Not all scientific evidence, or evidence that results from the use of a scientific technique, must be screened before being introduced into evidence. In some cases, the science in question is so well established that judges can rely on the fact that the admissibility of evidence based on it has been clearly recognized by the courts in the past. Other cases may not be so clear. Like the legal community, the scientific community continues to challenge and improve upon its existing base of knowledge. As a result, the admissibility of scientific evidence is not frozen in time.

32 While some forms of scientific evidence become more reliable over time, others may become less so as further studies reveal concerns. Thus, a technique that was once admissible may subsequently be found to be inadmissible. An example of the first situation, where, upon further refinement and study, a scientific technique becomes sufficiently reliable to be used in criminal trials, is DNA matching evidence, which this Court recognized in R. v. Terceira, 1999 CanLII 645 (SCC), [1999] 3 S.C.R. 866. An example of the second situation, where a technique that has been employed for some time comes to be questioned, is so-called “dock”, or in-court, identification evidence. In R. v. Hibbert, [2002] 2 S.C.R. 445, 2002 SCC 39, at para. 50, Arbour J., writing for the majority, stated that despite its long-standing use, dock identification is almost totally unreliable. Therefore, even if it has received judicial recognition in the past, a technique or science whose underlying assumptions are challenged should not be admitted in evidence without first confirming the validity of those assumptions.

33 The concerns raised in Taillefer and Moore are thus relevant to the instant case and coincide with a more general issue recently considered by this Court. Since Clark, this Court has had the opportunity to consider the admission of novel science in courtrooms. In J.-L.J., it built on Mohan to develop the test governing the admissibility of such evidence. Under this test, a party wishing to rely on novel scientific evidence must first establish that the underlying science is sufficiently reliable to be admitted in a court of law. This is particularly important where, as here, an accused person’s liberty is at stake. Even though the use of expert testimony was not in itself at issue in the present case — this appeal concerns the application of a scientific technique to the testimony of a lay witness — the threshold reliability of the technique, and its impact on the testimony, remains crucial to the fairness of the trial.

34 The central concern in Mohan was that scientific evidence be carefully scrutinized because, in Sopinka J.’s words, “[d]ressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves” (p. 21). The situation in the case at bar is similar in that the evidence reveals a risk that post-hypnotic memories may be given more weight than they should. In J.-L.J., the Court went a step further, establishing a framework for assessing the reliability of novel science and, consequently, its admissibility in court.

35 In the instant case, the appellant questioned the admissibility of the post-hypnosis testimony, and several experts gave evidence of differences of opinion on the use of hypnosis in the judicial context. The technique therefore needs to be assessed based on the existing legal standards for criminal trials.

36 In J.-L.J., Binnie J. explained that Canadian courts require a “reliable foundation” for novel science to be admissible as evidence at trial. Drawing on the American case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), he observed that reliability can be evaluated on the basis of four factors (J.-L.J., at para. 33):

(1) whether the . . . technique can be and has been tested[;]

(2) whether the . . . technique has been subjected to peer review and publication[;]

(3) the known or potential rate of error . . .; and,

(4) whether the theory or technique used has been generally accepted . . . .

37 These factors can be used to determine the reliability of post-hypnosis evidence. J.-L.J. is particularly helpful for the purpose of drawing a distinction between the efficacy of hypnosis as a therapeutic tool and its utility as a forensic tool. As Binnie J. observed, techniques that are sufficiently reliable for therapeutic purposes are not necessarily sufficiently reliable for use as evidence in a court of law where an accused’s liberty is at stake (para. 35). Ironically, it appears that one of the very characteristics that make the use of hypnosis reliable in a therapeutic context — the fact that both mental and physical perceptions are highly malleable under hypnosis — is a source of concern where hypnosis is used for evidentiary purposes and accordingly renders its use for forensic purposes suspect.

(i) Can the Technique Be Tested and Has It Been Tested?

38 Numerous references were made at trial and before this Court to studies on the use of hypnosis and to opinions of experts in the field. What is apparent from these sources is that the accuracy and effect of hypnosis are difficult to assess. While some laboratory studies suggest that hypnosis is not particularly effective in increasing the accuracy of memories, this may be a result of the laboratory setting itself. As Dr. Matheson, the Crown’s expert, explained, what makes memories memorable are the emotional associations that give them meaning. Laboratory studies are largely abstract, and lack the emotional quality or meaning that normally attaches to “real life” memories (A.R., at pp. 559-60). The findings of laboratory studies may not, therefore, be particularly applicable to the area of forensic hypnosis. However, it is significant that, despite their disagreement on other issues, all the experts in this case testified that while hypnosis can result in the subject’s remembering a larger number of details, these will include both accurate and inaccurate information.

(ii) Has the Technique Been Subjected to Peer Review and Publication?

39 As noted, hypnosis is not a new technique. It was used in ancient times, and this case does not concern its usefulness as a therapeutic tool. What is in issue is its use for forensic purposes. While testifying at trial, the experts referred to a number of scientific articles and studies on hypnosis and memory. Moreover, legal commentators have discussed hypnosis extensively. Since it is the reliability of the technique in the judicial context that is in issue, these resources are useful for our purposes. Even the most superficial examination of these commentaries reveals that much of the substance of the testimonies of the experts heard at trial is supported by the abundant discussions found in the legal literature. The question whether the technique has been subjected to peer review and publication can thus be answered in the affirmative. Dr. Matheson cited the following study while testifying at trial in this case: Council on Scientific Affairs, “Scientific Status of Refreshing Recollection by the Use of Hypnosis” (1985), 253 J.A.M.A. 1918. It is also notable that many of Dr. Orne’s publications have been cited by the courts, including the following: M. T. Orne, “The Use and Misuse of Hypnosis in Court” (1979), 27 Int.’l J. Clinical & Experimental Hypnosis 311; M. T. Orne et al., “Hypnotically Refreshed Testimony: Enhanced Memory or Tampering with Evidence?” in Issues and Practices in Criminal Justice (January 1985), at pp. 5-27. Legal commentaries on the use of hypnosis in criminal trials have proliferated: B. L. Diamond, “Inherent Problems in the Use of Pretrial Hypnosis on a Prospective Witness” (1980), 68 Cal. L. Rev. 313; T. M. Fleming, “Admissibility of Hypnotically Refreshed or Enhanced Testimony”, 77 A.L.R.4th 927 (1990 & Supp. 2006); G. M. Shaw, “The Admissibility of Hypnotically Enhanced Testimony in Criminal Trials” (1991), 75 Marq. L. Rev. 1; G. F. Wagstaff, “Hypnosis and the Law: A Critical Review of Some Recent Proposals”, [1983] Crim. L. Rev. 152; K. B. Evans, “Hypnotically Induced Testimony: Implications for Criminal Law in New Zealand”, [1994] N.Z.L.J. 348; J. Harsel, “The Use of Hypnotically Enhanced Testimony in Criminal Trials” (1996), 20 Melbourne U.L. Rev. 897; D. R. Webert, “Are the Courts in a Trance? Approaches to the Admissibility of Hypnotically Enhanced Witness Testimony in Light of Empirical Evidence” (2003), 40 Am. Crim. L. Rev. 1301. It is noteworthy that the weaknesses of hypnosis are well known and uncontroverted. The experts differ not on the shortcomings themselves, but on the extent of their impact on the witness’s ability to testify.

40 There is a general consensus that most individuals are more suggestible under hypnosis, that any increase in accurate memories during hypnosis is accompanied by an increase in inaccurate memories, that hypnosis may compromise the subject’s ability to distinguish memory from imagination, and that subjects frequently report being more certain of the content of post-hypnosis memories, regardless of their accuracy. In sum, while it is not generally accepted that hypnosis always produces unreliable memories, neither is it clear when hypnosis results in pseudo-memories or how a witness, scientist or trier of fact might distinguish between fabricated and accurate memories.

(iii) What Is the Potential Rate of Error?

41 A recurring theme in the expert testimony at Mr. Trochym’s trial and in the jurisprudence is that, while hypnosis may assist witnesses to recall additional detail, the medical community knows very little about how memory functions or what role hypnosis may have in recalling and/or altering memories. The general consensus appears to be that memory does not work like a tape recorder that can be played back but, rather, is constructive or additive. Remembering may therefore be a more creative mental process than it is usually understood to be. Given these gaps in scientific knowledge, the admission of post-hypnosis memories raises a number of concerns. The Crown’s expert, Dr. Matheson, testified that “the general understanding is that if properly and professionally done you would probably get more information [through hypnosis], and that information will be a combination of accurate and inaccurate [information]” (A.R., at pp. 601-2).

42 The potential rate of error is linked to three factors. The first, and most significant, of these is the risk of confabulation, or the creation of hallucinated or false memories. Confabulation can result from the power of express or implied suggestions, or simply from a strong, unconscious desire to compensate for a lack of actual memory. It may also result from other causes that are unknown, because scientists know very little about memory. All three expert witnesses noted at trial that, while confabulation may also occur without hypnosis, a person’s suggestibility is enhanced under hypnosis.

43 A second, and related, factor is that a person’s critical faculty appears to be reduced while he or she is under hypnosis. As Dr. Pollock, one of two expert witnesses called by the defence, explained, a person who has a memory in the normal “waking state” will examine it and decide whether it is accurate and should be reported. A hypnotized person is more likely to report whatever comes to his or her mind. As a result, while hypnosis may help a witness recall an event in greater detail, this heightened recollection may simply contain both more correct and more false details. The greater number of details the witness remembers may therefore create the illusion that his or her memory has improved in accuracy.

44 Finally, experts express concern about the potential for “memory hardening”, a process by which a person who has been hypnotized becomes increasingly, and unduly, confident in his or her memories. The exact cause of memory hardening is unknown but the phenomenon has been recognized. It is described as the “most consistent finding of all in studies on the various effects of hypnosis” (Shaw, at p. 12). This process is undetectable and seemingly irreversible. When combined with the possibility that memories have been tainted through confabulation, improperly phrased questions, or other unintentional influences, the danger that the accused will be denied a fair hearing becomes obvious.

45 At trial, Dr. Matheson observed that many of the concerns regarding post-hypnosis memories, such as confabulation and memory hardening, also apply to ordinary testimonial evidence. In admitting Ms. Haghnegahdar’s post-hypnosis memories, the trial judge noted that if judge-made guidelines such as those set out in Clark can control any tainting that might occur during hypnosis, then post-hypnosis memories are no more, or less, accurate than ordinary eyewitness testimony.

46 With respect, I find this view problematic. Hypnosis introduces more sources of concern and a likelihood that existing fragilities of human memory will increase, tainting the reliability of the evidence. Furthermore, the frailties of human memory when unaffected by hypnosis are only just starting to become known; indeed, the fallibility of eyewitness identification has been a central concern in a number of inquiries into wrongful convictions. In his public inquiry into the wrongful conviction of Thomas Sophonow, for example, the Honourable Peter deC. Cory observed that most triers of fact have implicit faith in eyewitness identification and that this can be hazardous. He recommended, among other things, instructing the jury about the shortcomings of eyewitness identification and cautioning it that the vast majority of wrongful convictions have resulted from faulty eyewitness identification: The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001), at pp. 33-34. While Justice Cory was specifically addressing ordinary memory, his recommendations make it all the more clear why a technique used to enhance memory must be approached with great caution.

(iv) Has the Technique Been Generally Accepted?

47 As indicated, there are differences of opinion in the scientific community on the acceptability of hypnosis for forensic purposes. This has resulted in some debate, in the courts of a number of jurisdictions, regarding the admissibility of post-hypnosis memories. In the United Kingdom, for example, post-hypnosis testimony has not been categorically excluded, although evidence of a witness who has been hypnotized can be excluded under s. 78 of the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, on the basis that it would have an adverse effect on the fairness of the proceedings. For this reason, the Crown Prosecution Service warns Crown counsel to “advise the police to restrict the use of hypnotism to people who may be able to give them a lead on an investigation but who will not be called as witnesses” (“Hypnosis: Guidance — Hypnosis Of A Witness” (online)). In New Zealand and Australia, courts have permitted the admission of post-hypnosis evidence where certain safeguards have been met, resulting in such evidence being declared inadmissible in several instances: see R. v. McFelin, [1985] 2 N.Z.L.R. 750 (C.A.); R. v. G., [1996] 1 N.Z.L.R. 615 (H.C.); and R. v. Haywood (1994), 73 A. Crim. R. 41 (S.C. Tasmania). Generally speaking, however, there has been very little discussion on the admissibility of post-hypnosis evidence in any of these three jurisdictions.

48 By contrast, courts have discussed the admissibility of post-hypnosis memories much more frequently in the United States. Two trends have developed. According to the first, the fact that a witness has been hypnotized goes to the weight of the testimony rather than to its admissibility. In Harding v. State, 246 A.2d 302 (1968), the Court of Special Appeals of Maryland held that the fact that only some of the victim’s testimony was based on post-hypnosis recollections went to its probative value. As the psychology of memory has become better understood, however, some courts have developed a number of safeguards to guide the manner in which hypnosis sessions are conducted. This more rigorous framework is typified by Hurd, a decision that, as already mentioned, was one of the main sources of the Clark guidelines. Although setting a more rigorous standard than in Harding, the Hurd guidelines are typical of the approach under which admissibility is subject to the weight to be attached to the particular witness’s post-hypnosis testimony.

49 The second trend is based on a view that hypnosis is fundamentally unreliable for the purposes of judicial proceedings and that post-hypnosis evidence should be excluded. In People v. Shirley, 723 P.2d 1354 (1982), the California Supreme Court held that the testimony of a witness who has undergone hypnosis to restore his or her memory of events is inadmissible “as to all matters relating to those events, from the time of the hypnosis session forward” (p. 1384). This means that a witness who has been hypnotized to restore his or her memory of an incident may not testify in relation to that incident, regardless of whether he or she made pre-hypnosis statements about it that would otherwise have been admissible. At least half of American jurisdictions now limit the admissibility of post-hypnosis evidence: Moore, at pp. 1220-22.

50 The cases discussed above illustrate the range of approaches that courts have developed and also show why it is necessary to be cautious in dealing with this issue. A further development in the American jurisprudence is also worth noting. In Rock v. Arkansas, 483 U.S. 44 (1987), the United States Supreme Court considered whether an accused’s “right to testify” may be restricted by a state rule that excludes his or her post-hypnosis testimony. In a 5-4 decision, the majority of the court emphasized the constitutional underpinnings of the accused’s right to testify on his or her own behalf. The court observed that an absolute prohibition against the admission of a defendant’s hypnotically refreshed testimony “on the ground that such testimony is always unreliable” operates “to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced” (p. 56). The court concluded that the State had not demonstrated that the exclusion “of all of a defendant’s testimony that the defendant is unable to prove to be the product of prehypnosis memory” was justified, and that “[w]holesale inadmissibility of a defendant’s testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all posthypnosis recollections” (p. 61 (emphasis in original)). The court chose not to comment on the constitutionality of prohibitions on post-hypnosis testimony by a defence witness, as opposed to the accused him or herself.

51 Rehnquist C.J., in dissent, rejected the constitutional exception articulated by the majority of the court. Highlighting the degree of controversy within the scientific community regarding the reliability of hypnosis, the Chief Justice observed that “until there is much more of a consensus on the use of hypnosis than there is now, the Constitution does not warrant this Court’s mandating its own view of how to deal with the issue” (p. 65).

52 The constitutionality of a prohibition on the admission of post-hypnosis testimony by an accused or a defence witness has not arisen in the Canadian context and was not at issue in the instant case. It would therefore be premature to comment any further on this point. While it may be true that a different set of concerns applies to the admissibility of an accused’s own post-hypnosis memories, the importance of the reliability of post-hypnosis evidence to the integrity of the trial process as a whole remains a live issue.

53 In sum, it appears that the use of hypnosis in the judicial context has both supporters and opponents, but that the general tendency is to be extremely cautious in dealing with post-hypnosis evidence. This debate may continue until significant advances are made in the science of hypnosis, or until our understanding of human memory improves significantly.

54 In J.-L.J., Binnie J. mentioned, in addition to the factors discussed above, the importance of determining the impact of novel science on the trial process, and in particular of determining whether the value or utility of the evidence outweighs its potential costs in terms of the consumption of time, potential prejudice to the accused, and confusion caused to the trier of fact. For this reason, a judge should, in exercising his or her role as “gatekeeper”, carefully scrutinize the admissibility of novel scientific evidence. While parties must be able to put forward the most complete evidentiary record possible (R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577), admissibility will necessarily be circumscribed where the evidence may “distort the fact-finding process” (J.-L.J., at para. 29). These concerns are highly relevant where hypnosis is used, because of the controversy surrounding the forensic use of the technique and the need to explain its shortcomings if it is in fact to be used.

(c) The Gap Between Clark and J.-L.J.

55 When the factors set out in J.-L.J. are applied to hypnosis, it becomes evident that this technique and its impact on human memory are not understood well enough for post-hypnosis testimony to be sufficiently reliable to be used in a court of law. Although hypnosis has been the subject of numerous studies, these studies are either inconclusive or draw attention to the fact that hypnosis can, in certain circumstances, result in the distortion of memory. Perhaps most troubling is the potential rate of error in the additional information obtained through hypnosis when it is used for forensic purposes. At the present time, there is no way of knowing whether such information will be accurate or inaccurate. Such uncertainty is unacceptable in a court of law. Furthermore, while the Clark guidelines aid significantly in ensuring that the hypnotist and police make as few involuntary suggestions as possible, they afford no protection against external sources of influence or against the other problems associated with hypnosis, such as confabulation out of a desire to compensate for a lack of actual memory, an increase in detail without sufficient assurances that this new information will be accurate, and memory hardening.

56 In the instant case, for example, Ms. Haghnegahdar’s two conversations with police prior to the hypnosis session (see the summary of the facts set out above) may have left her with a conscious or subconscious belief regarding the right answer to the question whether she saw the appellant on Wednesday or Thursday afternoon, even if the police sought in all good faith to avoid influencing her testimony. As Proulx J.A. noted in Taillefer, at p. 19, footnote 1, citing a 1984 article in the Revue du Barreau, a witness’s unconscious desire to please can itself exert a subtle pressure on the witness under hypnosis:

[translation] These persons, who are very motivated, generally want to help in the investigation. They have been questioned, often several times, without the desired information having been obtained. Only when faced with an impasse is hypnosis used. From the outset, these witnesses and victims have a good idea of what the police expect from them and what they should remember. They will be more attentive to any indication, or sign, which could pop up during their interaction with the person performing the hypnosis. If, in addition, the hypnotized person believes that everything that will be said under hypnosis is reliable (a belief shared by certain professionals and a large part of the public) then everything is in place for confabulation and the creation of pseudo-memory.

57 Because the Clark guidelines focus only on the actual hypnosis session, it may also be very difficult to determine whether improper suggestions occurred during other conversations with police officers or otherwise. For example, in R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), the officer who drove the witness to the hypnotist’s office may have had a copy of the Toronto Sun on the seat of his cruiser. The front page of that edition had a large photo of the accused and identified him as the prime suspect in the murder. During the hypnosis session, the witness described the accused. This case illustrates that the risks of tainting do not start with the hypnosis session and that the actual reliability is therefore difficult to establish.

58 Moreover, as Dr. Pollock testified at trial, it is unclear that the Clark guidelines can actually protect against outside influence. Dr. Matheson appeared to agree that the goal of Clark may be unattainable in stating that “in the real world of doing this work you can’t totally avoid contamination. You can’t avoid possible contact with other witnesses, the media, or police, or conversations with neighbours, and things like that” (A.R., at p. 557).

59 Finally, the Clark guidelines do not address the problems of confabulation and memory hardening, or the reality that hypnosis may compromise the right of cross-examination, thereby prejudicing an important instrument in the trial process. Experts appear to agree that neither the experts nor the individuals who have undergone hypnosis can distinguish confabulated memories from true memories. This is problematic for counsel cross‑examining the witness at trial, since it will be impossible to challenge the witness on the veracity of his or her memory, except insofar as a post-hypnosis memory is inconsistent with a pre‑hypnosis statement.

60 Of course, other independent evidence may assist jurors in determining whether evidence derived from hypnosis is reliable or not; for example, facts related while under hypnosis can be corroborated by other evidence or may be consistent with evidence given before the hypnosis session. However, if evidence whose reliability cannot really be tested is admitted and relied upon simply because it is consistent with other admissible evidence, the danger is that a web of consistent but unreliable evidence will lead to a (potentially wrongful) conviction. As a result, given our current understanding of hypnosis, the admission of post-hypnosis memories may render the right of cross‑examination illusory, thereby undermining a key aspect of the adversarial process.

61 In sum, it is evident, based on the scientific evidence on record, that post-hypnosis testimony does not satisfy the test for admissibility set out in J.-L.J. While hypnosis has been the subject of extensive study and peer review, much of the literature is inconclusive or highly contradictory regarding the reliability of the science in the judicial context. Unless a litigant reverses the presumption on the basis of the factors set out in J.-L.J., post-hypnosis testimony should not be admitted in evidence.

(d) Limited Use of Testimony Given by a Witness Who Has Undergone Hypnosis

62 Some novel scientific techniques, such as polygraph examinations, that are inadmissible for evidentiary purposes may nevertheless continue to be useful for the investigation of offences. For example, while concerns about oath helping, character evidence and delay may prevent the use of polygraph results in court, these concerns do not preclude police officers from administering polygraph tests as an investigative tool: R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398.

63 The inadmissibility of post-hypnosis testimony does not mean that hypnosis may not be used for other purposes. However, investigators must be conscious of the potential consequences of hypnotizing a witness.

64 A trial judge may have to rule on a request to allow a witness to testify on topics in respect of which questions were not asked during the hypnosis session. The judge must then balance the risks inherent in the use of hypnosis against the search for truth. Although this testimony may be tainted by post-hypnosis memories and although the cross-examination of the witness may be impaired, the judge may be satisfied that the detrimental effects are outweighed by the probative value of the testimony. In such a case, the trial judge may consider it appropriate to allow evidence on topics that were not touched on during the hypnosis session to be put to the jury. However, if the judge considers that the evidence is so important that it has to be put to the jurors despite its potential shortcomings, those shortcomings have to be mentioned. The judge must then give proper instructions to the jury concerning the effect of hypnosis on the weight of the testimony. The rationale for requiring specific instructions even though a topic was not touched on in the session is that the impact of hypnosis on testimony is not limited to post-hypnosis recollection and that testimony on the topic in question is accordingly likely to affect the jury’s assessment of the witness’s testimony.

65 Where evidence on topics covered during the hypnosis session is concerned, however, the trial judge should not admit it even if the witness did not change his or her testimony while under hypnosis. In my view, it would be inconsistent with the inadmissibility rule to allow those parts of the testimony, since they are tainted by the inherent shortcomings of the technique of hypnosis. Moreover, it would seem risky to take it for granted that the testimony at trial will be limited to pre-hypnosis memories. Indeed, the possibility that examination or cross-examination at trial will prompt answers more detailed than the recorded pre-hypnosis memories should not be underestimated. For example, let us assume that an accident victim tells police that, although she is not sure, she thinks it was a red car that hit her late at night. In an attempt to attain greater certainty, the police arrange for the victim to undergo hypnosis, and while hypnotized, she confirms that the car was red. At trial, a lawyer explores the matter further and she adds the make, model and year of the vehicle. It would in such a case be impossible to know whether the additional details were related to pre- or post-hypnosis recollection, and therefore whether they were accurate or inaccurate. Thus, in addition to concerns about memory hardening and the impairment of cross-examination, there is also the possibility that a witness will recall additional details whose accuracy is suspect.

66 The overriding problem is that testimony on topics covered in a hypnosis session will be tainted. It will not cease to be tainted merely because it is consistent with a pre-hypnosis statement. Indeed, as Professor Shaw states (at p. 76), “Determining the extent of the witness’s prehypnotic recollection as well as the extent to which memory hardening has occurred may be difficult to ascertain with precision.” Given the present understanding of memory, the risk of triers of fact being exposed to inadmissible statements appears to me to be too high to consider sidestepping the rule.

(e) Conclusion on Hypnosis

67 The admission of Ms. Haghnegahdar’s post-hypnosis testimony constitutes an error of law. A further complication in this case needs to be mentioned. As a result of the agreement entered into by the parties, defence counsel did not cross-examine Ms. Haghnegahdar about her pre-hypnosis statements and the jury was not informed that the witness had undergone hypnosis. I do not doubt that this agreement came about because defence counsel wished to minimize the risk that the jury would give undue weight to the witness’s testimony if it was informed that she had undergone hypnosis. However, the fact remains that the jury was left without the proper evidentiary basis on which to assess the accuracy of the witness’s testimony. The prejudice caused by the absence of cross-examination was exacerbated by Crown counsel’s closing remarks:

Gity Haghnegahdar also testified that she saw the accused that same afternoon. Gity was certain that it was Wednesday, October 14, 1992, not some other Wednesday, and she was one hundred percent sure that it was the accused. Mr. Lynch was unable to shake her on that in cross-examination. She knew what week it was, she knew what day it was, she knew what time it was.

Gity was sure of her evidence on these issues, and let’s not forget she was interviewed that very week by the police, so the events were still fresh in her mind. It is not a case of someone who is interviewed months afterwards and asked to try to recall events. She is interviewed that very week. [Emphasis added.]

Since Crown counsel knew both that Ms. Haghnegahdar had in fact changed her statement regarding the day she saw the appellant and that defence counsel was effectively prevented from cross-examining Ms. Haghnegahdar on the inconsistency between her pre- and post-hypnosis memories, it was unseemly for Crown counsel to characterize Ms. Haghnegahdar’s testimony as being unshaken.

68 Other grounds have also been raised by the appellant, but only one of them must be considered in the present appeal: the admission of what is characterized as “similar fact” evidence.

B. Similar Fact Evidence

(1) Summary of Facts on the Issue of Similar Fact Evidence

69 At trial, Ms. Haghnegahdar testified that she had heard someone banging on the victim’s apartment door the night of the murder. Given the timing, this person was likely the murderer. In support of its theory that the person who banged on the door was Mr. Trochym, the Crown was permitted to call Darlene Oliphant, a former girlfriend of the appellant’s, to testify. Ms. Oliphant testified that when she had asked the accused to move out of her apartment at the end of a seven-year relationship, he had done so, but had returned late that night, or early the next morning, and banged at her door, yelling profanities.

(2) Decisions of the Courts Below on the Similar Fact Evidence Issue

70 On the admissibility of Darlene Oliphant’s testimony that the accused had banged on her door after she had broken off their relationship, the trial judge ruled that this “similar fact” evidence should be admitted because the probative value was high and outweighed any prejudicial effect. While the rest of Ms. Oliphant’s evidence of the prior relationship was not sufficiently relevant to the issue before the court, the trial judge concluded that the evidence that the accused had banged on the door was circumstantially relevant to the issue of identity because it showed “a pattern of violent behaviour engaged in by the accused when rejected by a girlfriend following a serious relationship” (Court of Appeal reasons, at para. 44).

71 On appeal, the Ontario Court of Appeal rejected the appellant’s challenge to the admission of Darlene Oliphant’s testimony and upheld the trial judge’s finding that the probative value of this “similar fact” evidence outweighed its prejudicial effect. MacPherson J.A. held that this decision was entitled to considerable deference and that, although the trial judge did not have the benefit of this Court’s decisions in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, and R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, “the trial judge’s reasoning is faithful to those decisions and his conclusion is well within their parameters” (para. 47). Finally, MacPherson J.A. expressed the view that, although Crown counsel had strayed to some extent in his closing address from the limited purpose for which the evidence had been admitted, the trial judge had corrected these transgressions by reinforcing, in his “clear and accurate charge”, the use to which the evidence could be put: to establish the identity of the person who had knocked on the door, but not to draw the inference that the appellant was a person of bad character and thus more likely to have committed the murder (para. 48).

(3) Analysis on the Similar Fact Evidence Issue

72 In R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 735, it was established that where the Crown seeks to adduce evidence of a morally repugnant act committed by an accused, the probative value of the evidence must be high enough to outweigh its potential prejudicial effect. Cory J. stated the following in Arp, at para. 48:

[W]here similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted. [Emphasis added.]

Moreover, the balance between probative value and prejudicial effect can be assessed only “in light of the purpose for which the evidence is proffered” (Handy, at para. 69 (emphasis deleted)).

73 In the present case, the purpose of the evidence was to establish the identity of the person who had knocked on Ms. Hunter’s door late at night. Identifying the appellant as the person who had done so was of pivotal importance to establishing that he was the murderer.

74 The admission of Ms. Oliphant’s evidence is highly problematic given the generic quality of the acts. In Handy, Binnie J. (at para. 82) identified a number of factors that have been held to connect facts to similar circumstances, including:

(1) the extent to which the other acts are similar in detail to the charged conduct;

(2) the number of occurrences of the similar acts;

(3) the circumstances surrounding or relating to the similar acts; and

(4) any distinctive feature(s) unifying the incidents.

Although Handy was decided after the trial in the case at bar, MacPherson J.A. concluded that the trial judge’s reasoning was faithful to Handy and that his conclusions were well within its parameters. With respect, I disagree.

75 The trial judge stated that the evidence “is admissible to show a pattern of emotional involvement which, when followed by rejection, turns to violence. Or, to put it another way, specifically it is evidence that the Oliphant relationship can show a pattern of violent behaviour engaged in by the accused when rejected by a girlfriend following a serious relationship” (Court of Appeal reasons, at para. 44 (emphasis added)). With respect, it would be rare for a single incident to evidence a “pattern”. A pattern is observed only if it is assumed that it was in fact the appellant who banged on the deceased’s door the night of the murder. Moreover, banging on a door cannot be characterized as “distinct” or “unique” conduct that is somehow identifiable with a particular accused. The fact that the accused had in the past knocked on an ex-girlfriend’s door can hardly be said to support the inference that he was the person who knocked on the door in this instance. On the identity issue, this evidence had little, if any, probative value.

76 Not only did this evidence lack probative value, but it was also highly prejudicial, particularly in light of how it was used by the Crown. Crown counsel referred to Darlene Oliphant’s evidence in his closing statement. Noting that Ms. Oliphant, unlike the deceased, was “wise and chose not to open her door and let the accused in” when he banged on her door, Crown counsel made the following comment:

So we will never know exactly what would have happened to Darlene had she let the accused in and had she been alone at the time.

But I respectfully submit that the accused’s angry comment to Darlene through the door that “you will never have anyone else,” would seem to demonstrate that any encounter she might have had with the accused would not have been a peaceful one, as he was not handling the rejection at all well.

This comment strayed far from the purpose for which Ms. Oliphant’s evidence had been introduced. The Crown’s speculation regarding the possible outcome had Ms. Oliphant opened the door to Mr. Trochym was both highly prejudicial to the appellant and of doubtful relevance to his prosecution for the murder of Donna Hunter. The Crown’s comment cannot be said to go to identifying the accused as the person who had knocked on the door.

77 The trial judge did not alleviate the prejudice. He instructed the jury that the similar facts showed “a pattern of violent behaviour engaged in by the accused when rejected by a girlfriend following a serious relationship” (Court of Appeal reasons, at para. 44 (emphasis added)). There was no evidence that the accused had committed violent acts against Ms. Oliphant. Adducing the evidence to show that the accused engages in violent behaviour is likely to have caused prejudice to the accused, since it went not to identifying him as the person who had knocked on the door, but to establishing that he is a “bad person”, and would have caused the jury to be less critical of the evidence.

78 In my view, the evidence of the appellant’s alleged reaction to the prior breakup does not meet the objective test of “improbability of coincidence”. The fact that the appellant had, on one previous occasion, banged on a girlfriend’s door after their relationship ended is not sufficiently probative to outweigh the potential prejudicial effect of admitting that evidence for the purpose of identifying him as the killer. It was therefore an error of law to admit this evidence.

C. Other Grounds of Appeal

79 On appeal, the appellant raised a number of other concerns. These included adverse inferences the Crown sought to adduce from the appellant’s post-offence conduct, the treatment of the “alibi”, the manner in which Crown counsel cross-examined the appellant, and comments made by Crown counsel in his closing comments to the jury. In view of my finding that the admission of the post-hypnosis testimony and similar fact evidence constituted serious errors of law, it is not necessary to address these concerns other than by recalling Rand J.’s warning in Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at pp. 23-24:

It cannot be over‑emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

Crown counsel are expected to present, fully and diligently, all the material facts that have evidentiary value, as well as all the proper inferences that may reasonably be drawn from those facts. However, it is not the Crown’s function “to persuade a jury to convict other than by reason”: R. v. Proctor (1992), 1992 CanLII 2763 (MB CA), 11 C.R. (4th) 200 (Man. C.A.), at para. 59. Rhetorical techniques that distort the fact-finding process, and misleading and highly prejudicial statements, have no place in a criminal prosecution.

V. Conclusion and Application of the Curative Proviso

80 Pursuant to s. 686(1)(b)(iii) of the Criminal Code, an appellate court may dismiss an appeal where, even though the trial court has erred in law, no substantial wrong or miscarriage of justice has occurred. This provision reads as follows:

686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred . . .

81 In R. v. Khan, [2001] 3 S.C.R. 823, 2001 SCC 86, at para. 26, Arbour J., writing for the majority, stated that “[t]here are essentially two classes of errors which have been identified by reviewing courts and which have led to a proper application of the proviso. The first category is that of so‑called ‘harmless errors’, or errors of a minor nature having no impact on the verdict. The second category encompasses serious errors which would justify a new trial, but for the fact that the evidence adduced was seen as so overwhelming that the reviewing court concludes that there was no substantial wrong or miscarriage of justice.” With respect to serious errors, Arbour J. (at para. 31) cited Sopinka J. in R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, at p. 916, in support of the proposition that the proviso is applicable only if “the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction.”

82 The instant case is one that falls squarely within the second category of serious errors that will justify a new trial unless the properly adduced evidence is so overwhelming that a conviction is inevitable, or would invariably result. This standard should not be equated with the ordinary standard in a criminal trial of proof beyond a reasonable doubt. The application of the proviso to serious errors reflects a higher standard appropriate to appellate review. The standard applied by an appellate court, namely that the evidence against an accused is so overwhelming that conviction is inevitable or would invariably result, is a substantially higher one than the requirement that the Crown prove its case “beyond a reasonable doubt” at trial. This higher standard reflects the fact that it is difficult for an appellate court, in particular when considering a jury trial, since no detailed findings of fact will have been made, to consider retroactively the effect that, for example, excluding certain evidence could reasonably have had on the outcome.

83 In the case at bar, I have found that the evidence used to convict the accused of second degree murder included two important items that should never have been put before the jury. The question of the application of the curative proviso is one that is easily answered in the negative. This is not a case where I can conclude that there is no reasonable possibility that the verdict would have been different had the errors not been made. The post-hypnosis evidence, considered critical by the Crown and characterized as significant by the judge, has to be excluded. The similar fact evidence must also be excluded. Once those two pieces of evidence are withdrawn, it cannot be said that the remaining evidence “is so overwhelming that [the] trier of fact would inevitably convict”.

84 I would therefore allow the appeal, set aside the conviction and order a new trial.

The following are the reasons delivered by

85 Charron J. — I agree with my colleague, Deschamps J., about the disposition of this appeal for the reasons she gives, except for the limits she places on the use of the testimony of a witness who has undergone hypnosis, as explained in para. 64 of her reasons.

86 First, my colleague would admit in evidence only those parts of the testimony that were not subject to questions during the hypnosis session and only when the trial judge is satisfied that any detrimental effects resulting from the hypnosis are overcome by the probative value of the testimony. Second, my colleague would make it mandatory in all such cases that special instructions be given to the jury concerning the effect of hypnosis on the weight of the testimony.

87 I agree that those parts of the testimony of a witness who has undergone hypnosis that were not the subject-matter of the hypnosis can be admitted. For example, if a complainant, who alleges that she was sexually assaulted by an assailant she cannot identify, is questioned under hypnosis about the identity of her assailant, her testimony about the assault should be admissible in the usual way. In my view, there is no good reason to exclude her testimony about the assault. Hence, in such cases, it would not be necessary for the proponent of the evidence to show that the detrimental effects of the hypnosis are overcome by the probative value of the testimony.

88 In addition, it is my view that the trial judge should have the discretion to admit post-hypnosis testimony when the proposed testimony is shown, usually by means of a pre-hypnosis statement made by the witness, to be entirely based on the witness’s pre-hypnosis memories. To take my previous example, if the complainant gave a pre‑hypnosis statement describing her assailant as a white, heavy-set man and she still maintains that memory following the hypnosis, it should be open to the trial judge to admit the testimony about the identity of the assailant if the trial judge is satisfied that any detrimental effect resulting from the hypnosis is overcome by the probative value of the evidence. I appreciate that there may nonetheless be lingering detrimental effects flowing from the hypnosis, such as memory hardening, as described by my colleague. However, it is my view that proof of the consistent pre-hypnosis statement can constitute sufficient rehabilitation of the witness to warrant admission of the testimony. In my respectful view, the approach adopted by my colleague overshoots the underlying purpose for excluding post-hypnotic memories.

89 Finally, in all cases where the testimony of a witness who has undergone hypnosis is admitted in accordance with these reasons, I would leave it to the discretion of the trial judge to determine in the circumstances of the particular case whether expert evidence is necessary to explain those effects and whether any special instruction is called for to assist the jury in its assessment of the evidence.

90 In other respects, I agree with my colleague.

The reasons of Bastarache, Abella and Rothstein JJ. were delivered by

91 Bastarache J. (dissenting) — Stephen Trochym was convicted, after a 14-week trial, by judge and jury, for the second degree murder of Donna Hunter. The Crown led a strong case against the accused, calling over 40 witnesses. The appellant contests the admission of several pieces of evidence and alleges Crown improprieties in the conduct of its case. Except for the similar fact evidence of Darlene Oliphant, I find no error on the part of the trial judge for admitting the evidence in issue, nor do I find the Crown’s conduct to have been problematic. I do not find the admission of post-hypnosis testimony to have been problematic in this case. Most importantly, I conclude that the evidence against Mr. Trochym was so overwhelming as to permit the application of the curative proviso. In this respect, I find it necessary to set out the facts in far more detail than does my colleague Justice Deschamps.

1. Facts

92 Donna Hunter’s body was found in her apartment around 11:00 p.m. on October 16, 1992. A concerned friend, who had tried to reach Ms. Hunter several times by phone in the preceding days only to realize her phone was off the hook, contacted Ms. Hunter’s superintendent. He suggested that she call the police, who immediately came to the scene. The door to the apartment was found unlocked and Ms. Hunter’s body was found in a seated position on the floor, her back against her couch and head slumped upon the couch cushion. Her nightgown was positioned in such a way to reveal her breasts and underwear. She had been stabbed repeatedly in the throat with a knife, severing her jugular. There were numerous other wounds on her body as well. It was clear from the state of decomposition of the body that Ms. Hunter had been dead for some time.

93 Police investigators placed the time of the murder between 1:00 a.m. and 5:20 a.m. on Wednesday, October 14, 1992. They also concluded that the body had been moved some 8 to 12 hours after the murder. Given the small amount of blood found on the floor by the body, and the great amount found soaked into the cushions of the couch, forensics concluded that Ms. Hunter was killed on the couch facing downwards. The lividity on the body (discolouration of skin where blood pools on account of the pull of gravity post-mortem) was also consistent with her body having been laying face down on the couch for the first 8 to 12 hours following death, rather than in a seating position on the floor. The crime scene also appeared to be rearranged. The couch cushions, and other items, had been moved to hide dried blood stains. Police were sure that it was only the murderer who would have moved the body and rearranged the scene.

94 It did not appear that a stranger could have committed the murder. There was no sign of a break-in. No money or other valuables were stolen from Ms. Hunter’s apartment. Aside from the arranging of Ms. Hunter’s nightgown, there was no evidence of sexual assault. Police believed that the killer intentionally tried to make it look as if the murder had been sexually motivated. Ms. Hunter’s friends testified that she had been a very security-conscious person and would not have opened her door to a stranger in the middle of the night. As well, a stranger would not have a motive to rearrange the scene or make the murder look sexually motivated. Nor would a stranger take the risk of staying at the scene for several hours or later returning to the scene in order to do so.

95 Gity Haghnegahdar, Ms. Hunter’s neighbour, who was up late studying, testified to hearing someone banging on Ms. Hunter’s apartment door between 1:00 a.m. and 2:00 a.m. of Wednesday, October 14. (I note that Ms. Haghnegahdar’s memories on this point were not subject to hypnosis.) She described hearing someone banging very hard on the door and a man asking to be let in and Donna Hunter yelling at him that she would not open the door. This went on for about 5 to 10 minutes, until Ms. Haghnegahdar heard the door open, a conversation take place, the pair enter the apartment and close the door behind them. From this evidence, the estimated time of her death, and the evidence supporting that the murderer was not a stranger, police deduced that the person banging was someone Ms. Hunter knew and that this person was the killer.

96 The Crown’s investigation revealed that no one Ms. Hunter knew had a motive to kill her, except for the appellant. His motive was her attempt to break up with him on the evening of October 13, 1992. Mr. Trochym and Ms. Hunter met at a bar on December 31, 1991 and began dating soon after. In April 1992, Mr. Trochym moved into Ms. Hunter’s apartment. There was a lot of evidence adduced at trial to show that Mr. Trochym had very strong feelings for Ms. Hunter right up until her murder. For example, he gave her love notes and cards, an “eternity” ring, which symbolizes life-long commitment, and had expressed his intention to marry Ms. Hunter to a co-worker. This was contradictory to Mr. Trochym’s evidence that their relationship had petered out by the spring of 1992 and that their relationship was more like one of roommates that occasionally had sex.

97 There were also many witnesses, including Ms. Hunter’s friends and the employees and patrons of the bars the couple frequented, who testified that Mr. Trochym was both possessive and controlling of Ms. Hunter and got extremely jealous when she spoke with other men. A few witnesses testified to seeing Mr. Trochym become physically and verbally abusive with Ms. Hunter.

98 Most importantly in this respect, there was evidence of Ms. Hunter’s friends attesting to her growing resolve to end the relationship during the fall of 1992. Specifically, there was evidence that she had decided to break up with him the evening of October 13, 1992. The testimony of bar patrons and employees who saw Mr. Trochym and Ms. Hunter together that evening, first at Bert & Ernie’s bar, then later at Shakey’s bar, support that she was attempting to ignore him and that Mr. Trochym was not receptive to this. For example, a bar patron at Bert & Ernie’s testified to seeing Mr. Trochym trying to “suck up” to Ms. Hunter, trying to put his arm around her and kiss her, and Ms. Hunter pulling away and telling him to go away. This witness, as well as the bar manager and the doorman, testified to seeing Ms. Hunter run out of the bar at one point on the evening of October 13, and Mr. Trochym going after her, bringing her back in after an argument outside, Mr. Trochym then trying to be “lovey dovey” and Ms. Hunter not buying it. Later at Shakey’s bar, Mr. Trochym was seen arguing with Ms. Hunter and one of her friends and at one point grabbing her by the arms and pulling her aside. This evidence contradicted Mr. Trochym’s testimony that the reason Ms. Hunter was upset that evening related to money and problems with her children.

99 The Crown was able to show that not only did Mr. Trochym have a motive to kill Ms. Hunter, he also had the opportunity to do so. At some point, Mr. Trochym left Shakey’s without Ms. Hunter and returned to Bert & Ernie’s where he was refused service. The bartender at Bert & Ernie’s testified that this was around 12:30 a.m. The distance of the drive between Bert & Ernie’s bar and Ms. Hunter’s apartment would have placed him at the apartment around 1:00 a.m. His arrival would have been concurrent with the time Ms. Haghnegahdar testified to hearing the banging on Ms. Hunter’s door. The Crown’s theory was that, in a rage and locked out, Mr. Trochym banged on the door, convinced Ms. Hunter to let him in, and then killed her.

100 Mr. Trochym’s version of events was that after being refused service at the bar, he returned back to the apartment shortly after 11:30 p.m. and Ms. Hunter came home 10 to 15 minutes later. They argued over money, and having wanted to separate from her for many months, Mr. Trochym decided to move back to his parent’s house permanently. He took a taxi back to his parents’ house, as he had locked the keys to the underground parking lot in his car. He arrived there around 12:30 a.m., went to sleep, woke up at 5:30 a.m. the next morning and arrived at work, travelling via subway, at about 7:20 a.m. However, Mr. Trochym’s father did not recall seeing his son at the house that morning. Contrary to his claim that he arrived at work on time that day, two of Mr. Trochym’s co-workers testified to him being two hours late. As well, contrary to Mr. Trochym’s claim that he left his car in the apartment parking garage, the security guard at Canada Post testified to seeing Mr. Trochym’s car in its designated parking space that day when he arrived at 11:00 a.m.

101 In addition to this evidence surrounding the time of the actual murder, the Crown produced extensive evidence of Mr. Trochym’s conduct in the days following the murder that firmly supported that he murdered Donna Hunter.

102 Most importantly, there was the sighting of Mr. Trochym at the apartment building, and specifically the sighting of him coming out of her apartment at a time when forensics determined she would have already been dead, but before her body was discovered by authorities. Whether one accepts the pre-hypnotically refreshed memories of Ms. Haghnegahdar seeing Mr. Trochym around 3:00 p.m. on Thursday or her hypnotically refreshed memories of seeing him around 3:00 p.m. on Wednesday, her eye-witness sighting of him places him at the crime scene at a time when he would have known Ms. Hunter’s murdered body was inside the apartment. The Crown argued that this is when Mr. Trochym returned to the apartment to move the body to make the murder look sexually motivated.

103 There was the evidence of Gordon Raymer, Ms. Hunter’s building superintendent, and Phyllis Humenick, the superintendent’s babysitter. Both placed Mr. Trochym, wearing a dark hip-length coat and dark pants, at the apartment building, looking to be let into the parking garage, between 1:55 p.m. and 2:30 p.m. on Wednesday. This corroborated Ms. Haghnegahdar’s evidence of seeing Mr. Trochym on the Wednesday. Second, Ms. Humenick’s and Mr. Raymer’s evidence contradicted Mr. Trochym’s evidence that he had been at work all afternoon and had only gone to the apartment building after work that day.

104 The Crown adduced evidence that despite his claim to being at work all afternoon on Wednesday, October 14, and having computer records showing him logged on to Canada Post computers that afternoon, there would have been an opportunity for him to sneak out of his work area, unnoticed by co-workers. There was also evidence from Mr. Trochym’s supervisor that it was possible that someone else could have logged into the computer network using Mr. Trochym’s password. This supervisor recounted one documented incident in March 1993 when someone else logged onto Mr. Trochym’s computer station using his password. As well, no witness could confirm his absence or presence at work that afternoon. There was, however, evidence from a Canada Post security guard that he had seen Mr. Trochym hanging around after his shift ended at 4:00 p.m., which was unusual for him, and acting as if trying to be noticed by others.

105 The Crown argued that Mr. Trochym planned to “find” the body, under the pretense of going to the apartment for his belongings a few days after the murder. He went to the apartment on the afternoon of Saturday, October 17, wearing clothes unsuitable for moving furniture (dress pants and a tie) and accompanied by his old and ailing father, who would not have been strong enough to carry anything. He was met by a police officer guarding the door and was not permitted entry. He did not inquire into what was going on or Ms. Hunter’s well-being. When left a message later that day by the same police officer, who wanted to provide him with further information, Mr. Trochym did not return the call.

106 There was also the evidence of Detectives Clarke and McCulla, who interviewed Mr. Trochym on Sunday, October 18. During this interview Mr. Trochym was asked about his relationship with Ms. Hunter, his whereabouts around the time of her murder, and how he had come to discover that she had been murdered. On this last question, Mr. Trochym indicated that after returning from a restaurant on Saturday evening with his brothers, Michelle McKinnon, the girlfriend of one of Mr. Trochym’s brothers, after hearing rumours about Ms. Hunter’s death, phoned the police for information. Mr. Trochym recounted that after getting off the phone, she turned to Mr. Trochym and his brothers and made a horizontal motion across her neck as if to indicate that Ms. Hunter’s throat had been cut. Ms. McKinnon testified at trial that she had only been informed of Donna’s death by police, not that she was murdered or had her throat cut, and she denied ever making such a gesture across her neck. The police corroborated her account by testifying that they did not release any information about the means of Ms. Hunter’s death to the public. This demonstrated that Mr. Trochym knew of Ms. Hunter’s means of death before anyone else could have.

107 The Crown also relied on the police interview of October 18, 1992, to argue that Mr. Trochym deliberately omitted relevant information from his statement (such as returning to Bert & Ernie’s bar and being refused service on the evening of October 13), downplayed his feelings for Ms. Hunter and lied about aspects of their relationship.

108 The Crown also argued that the excuses Mr. Trochym gave to the police as the reason for not attending a second interview (that he had “darts and haircut” commitments) constituted proof that Mr. Trochym’s earlier unsolicited commitment to helping their investigation was only made in order to avoid suspicion. Further, there was evidence adduced regarding the appellant’s failure to attend Ms. Hunter’s visitations, funeral or benefit dinner, his failure to contact her friends or family to express his condolences, his failure to tell any of his co-workers about Ms. Hunter’s death or request bereavement leave. The admission of this evidence was challenged on appeal as problematic. The majority finds it unnecessary to comment on this evidence; I will deal with these issues and conclude that such evidence properly met the standards for admission of post-offence conduct set out in R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72.

109 Finally, there was the evidence of Darlene Oliphant, a former girlfriend of Mr. Trochym, who testified that after breaking up with him, Mr. Trochym came to her apartment in the early morning hours and banged on her door and windows. I will discuss this evidence further in the body of my analysis.

2. Judicial History

110 The rulings of the trial judge and the Court of Appeal ((2004), 2004 CanLII 1262 (ON CA), 71 O.R. (3d) 611) are summarized in my colleague’s reasons. Any disagreement with her characterization of the judgments below is noted in the body of my analysis.

3. Analysis

111 A general principle of criminal evidence law is that a just result in criminal trials is best achieved when the decision maker has all relevant and probative information before him or her: see R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at pp. 454-55. When weighing probative value against prejudicial effect, this must be kept in mind. It must be recalled that “prejudicial effect” is the likelihood that the jury, even if properly instructed, will use the evidence for an improper purpose; it is not created merely by evidence that is unfavourable to a party’s case: H. Stewart, Evidence: A Canadian Casebook (2002), at p. 128.

112 Second, it must be recalled that our criminal justice system is an adversarial one. It is parties, not the trial judge, who hold the primary obligation of objecting to prejudicial evidence or conduct: see Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, at para. 68, per LeBel J. Certainly, the trial judge has an important gate-keeping function, but we cannot superimpose the role of defence counsel onto the trial judge.

113 Third, the trial judge’s exercise of discretion in whether to admit evidence, to intervene, or permit certain conduct by the parties, deserves deference by appellate courts unless substantial wrong can be demonstrated: see H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25.

114 Fourth, and finally, appellate courts must have faith in the intelligence and common sense of juries and in the ability of trial judges to properly charge juries: see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 697, and R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at p. 996, per Lamer C.J.

3.1 Hypnotically Refreshed Evidence

115 My concerns with the approach to hypnotically refreshed evidence that Deschamps J. advocates relate not only to her views on the admissibility of such evidence, but on the implications her decision will have on the admissibility of scientific evidence in future cases. In my view, the precedent set by permitting the appellant to succeed on this ground without his having adduced a sufficient evidentiary foundation for this challenge is, to say the least, troubling.

116 It is important for the purpose of the legal analysis to follow, that I first set out in detail the facts surrounding Ms. Haghnegahdar’s hypnosis and the voir dire held to admit her hypnotically refreshed memories.

3.1.1 Facts of the Hypnosis and Voir Dire

117 Ms. Haghnegahdar was first interviewed by Constable Pike on October 17, 1992, the day following the discovery of Ms. Hunter’s body. She told him, among other things, that she had seen Mr. Trochym come out of Ms. Hunter’s apartment on Thursday, October 15, 1992, at 3:00 p.m. as she was getting home from school. At this time, the police were conducting routine interviews of all Ms. Hunter’s neighbours to determine whether any of them had any relevant information that would assist the investigation.

118 The next afternoon, Detectives Clarke and McCulla did a follow-up interview with Ms. Haghnegahdar. The meeting was audio-taped and heard at the voir dire. During the meeting, she expressed confusion over whether she saw the appellant leaving the apartment on Wednesday or Thursday. At this early point in the investigation, the police had not conclusively placed the time of death in the early morning hours of Wednesday, October 14, as most of the evidence that led to this conclusion had yet to be investigated. Nor did they know there were other witnesses placing Mr. Trochym at the apartment building on the afternoon of Wednesday, October 14. Mr. Raymer, the building superintendent, and his babysitter, Ms. Humenick, gave statements to seeing Mr. Trochym on the Wednesday only after this second interview with Ms. Haghnegahdar.

119 Only after receiving these statements from Mr. Raymer and Ms. Humenick did the police contemplate Ms. Haghnegahdar undergoing hypnosis in order to clear up the day of the sighting. The session was arranged for November 8, to be carried out by Dr. Matheson. In arranging the session, police made sure to convey as little information as possible about the investigation to either Dr. Matheson or Ms. Haghnegahdar, so to avoid any potential influence leading up to the session.

120 On the day of the session, Ms. Haghnegahdar was driven to Dr. Matheson’s office by Detective McCulla. The officer testified to being careful not to impart any information concerning the case or making suggestions regarding the information sought from her during their contact. At Dr. Matheson’s office, Ms. Haghnegahdar and Dr. Matheson were introduced in the waiting room and then Detective McCulla and Dr. Matheson met privately so that he could be given a brief overview of the case. This conversation was videotaped, and heard at the voir dire. Detective McCulla gave Dr. Matheson the basic facts of the case and told him that Ms. Haghnegahdar saw Mr. Trochym leaving the apartment and was confused in her second interview about whether she saw him on Wednesday or Thursday. Detective McCulla told the doctor that the police would like to have the day and time of the sighting cleared up, but did not indicate or suggest to Dr. Matheson which day they would prefer the sighting to have been.

121 Next, Detective McCulla left and the session between Dr. Matheson and Ms. Haghnegahdar began. The entire hypnosis session between Dr. Matheson and Ms. Haghnegahdar was videotaped and heard at the voir dire. The hypnosis consisted of Dr. Matheson putting Ms. Haghnegahdar into a very relaxed state. Once in this state, he asked her to describe the event of seeing Mr. Trochym coming out of Ms. Hunter’s apartment on her way home from school. At this point, she recalled more details than before, such as the colour of his clothing being “dark” and a “scary” look he gave her. After describing this, Dr. Matheson asked her to describe what happened afterwards, specifically what she did once she arrived at her own apartment and for the rest of the day. Through this she recalled that she had a snack, then took a nap, was woken up by her alarm clock and had wanted to go back to sleep but did not because she was worried she would be late to pick up her daughter who was at piano class until 5:00 p.m. She then described going to pick up her daughter. At one point, Dr. Matheson asked: “Just notice what day is it?”, to which Ms. Haghnegahdar responded: “Oh every Wednesday, every Wednesday she has to practice, piano practice . . .” (A.R., at p. 4023). It was by associating having to pick up her daughter from piano lessons, which were always on Wednesdays, with seeing Mr. Trochym coming out of the apartment that same day, that Ms. Haghnegahdar was able to determine that she saw him on Wednesday as opposed to Thursday.

122 In the post-hypnosis interview with Detective McCulla immediately following the session, Ms. Haghnegahdar confirmed that her memory of seeing Mr. Trochym on Wednesday was directly associated with having to pick up her daughter from her piano lesson that day. As well, Ms. Haghnegahdar reiterated those details she recalled in the session concerning his attire when she saw him, “We’ - I - I saw him ah with the dark a dark jacket and dark pants and before I didn’t remember but after I had been hypnotized I remember his jacket was ah zipped up to under his ah cheek”, as well as his “scary eyes”. I note that she did not say during this interview that Mr. Trochym was wearing a leather coat or windbreaker. The interview between Detective McCulla and Ms. Haghnegahdar was videotaped and heard at the voir dire.

123 There was one more interview between the police and Ms. Haghnegahdar that took place on November 10, 1992. The sole purpose of this interview was to show her a picture of the appellant to see if this was the same man she claimed to have seen leaving Ms. Hunter’s around 3:00 p.m. on Wednesday, October 14.

124 During the voir dire, the trial judge heard five days worth of evidence. The Crown called Detectives McCulla and Clarke and Dr. Matheson to testify to their interaction with Ms. Haghnegahdar and each other. The defence called two expert witnesses, Dr. Pollock, a clinical psychologist, working in the therapeutic application of hypnosis, and Dr. Yarmey, an expert on memory.

125 The defence experts were able to raise a couple of concerns about adherence to the Clark guidelines (R. v. Clark (1984), 1984 CanLII 1177 (AB KB), 13 C.C.C. (3d) 117 (Alta. Q.B.)), though these were fairly trivial. First, Dr. Pollock noted that the information concerning the case given to Dr. Matheson was not in writing as required by guideline 3, but instead was oral and was videotaped. However, he admitted on cross-examination that they still fulfilled the purpose intended by the guidelines, that is, to monitor and minimize the risk of inadvertently conveying information to the hypnotist. Second, both Dr. Pollock and Dr. Yarmey suggested that Dr. Matheson may have unintentionally assumed that Ms. Haghnegahdar was recovering memory by linking events together when it was possible that she was not, and this may have influenced her. The trial judge found, however, in the context of the session as a whole that Dr. Matheson’s assumption did not seem unreasonable or suggestive (see A.R., at pp. 775-79; see also, Ruling re Hypnosis, April 5, 1995, at p. 6).

126 Dr. Pollock also talked about confabulation and the difficulty, even for the hypnotist, of determining which refreshed memories might be real and which might be imagined. The potential for a subject to be overly confident in their new memories and for “memory hardening” to occur were also identified. As well, both Dr. Pollock and Dr. Yarmey raised concerns about the possibility of pre- and post-hypnosis suggestion.

127 On cross-examination, the Crown was able to demonstrate that none of these concerns were live concerns with regards to Ms. Haghnegahdar’s evidence. Both defence experts conceded that independent corroboration of hypnotically refreshed memories was one way to assess its reliability. Dr. Pollock also clarified this for the trial judge:

THE COURT: And one of the mechanisms whereby a recovered memory can be evaluated is by making that memory referable to other known facts?

WITNESS: Yes, that’s true. If there is external, independent corroboration of the recollection.

THE COURT: So one should approach memories that have been “recovered” through hypnosis with some measure of scepticism, and one should look for other evidence capable of confirming the reliability of those recovered memories?

WITNESS: Yes, very definitely. . . .

(A.R., at pp. 735-36)

Both experts were aware that the hypnotically refreshed memories of Ms. Haghnegahdar seeing Mr. Trochym at the apartment building on Wednesday afternoon wearing dark clothing were corroborated by the evidence of Mr. Raymer and Ms. Humenick.

128 As well, Dr. Pollock admitted on cross-examination that evidence of the subject being able to exercise critical judgment during the hypnosis session and in the post-hypnosis interview were reliable indicators that suggestion and confabulation were not occurring. The Crown went through great portions of the transcript of the hypnosis session with Dr. Pollock, pointing out multiple places where Dr. Matheson would ask Ms. Haghnegahdar a question and she would answer “No” or “I don’t know”. From this process the Crown was able to draw admissions from Dr. Pollock that Ms. Haghnegahdar was not guessing, not trying to fill in gaps, nor being compliant or confabulating. The Crown employed a similar cross-examination technique on Dr. Yarmey, who also agreed that Ms. Haghnegahdar was not being compliant, nor confabulating to please Dr. Matheson and was trying to do her best to recall. The Crown was also able to demonstrate that Ms. Haghnegahdar was not filling in gaps or open to suggestion when answering questions to which she did not know the answer during the post-hypnosis interview with Detective McCulla.

129 The Crown also demonstrated on cross-examination that Ms. Haghnegahdar was able to distinguish between pre- and post-hypnosis memories, a factor that Dr. Pollock admitted was an important one to look at when assessing the reliability of memories that have been hypnotically refreshed. Dr. Yarmey made a similar admission in cross-examination, as well. Dr. Yarmey, the memory expert, also agreed that the linking or association of memories in a context is an indication of greater reliability of recovered memories.

130 The only potential external tainting of Ms. Haghnegahdar’s evidence raised by the experts was the suggestion made by Detectives Clarke and McCulla in their October 18 interview. Dr. Pollock opined that Detective Clarke’s questions, “Are there any possibilities that it was Wednesday? Is there any possibility it was Wednesday? Right now – can you remember what you did on Wednesday?” might have suggested to Ms. Haghnegahdar that Wednesday was somehow important to the police. In cross-examination, Crown counsel tested Dr. Pollock’s opinion by suggesting that, when the entire passage surrounding this line of questioning is read as a whole, it is clear that Detective Clarke was only trying to clarify the day and that, in fact, it was Ms. Haghnegahdar who first raised the possibility that the sighting may have been on Wednesday. The trial judge agreed that, taken in context, the questions were not leading or suggestive.

3.1.2 Hypnosis Is Not “Novel Science”

131 Characterizing hypnosis as “novel science” by applying R. v. J.-L.J., [2000] 2 S.C.R. 600, 2000 SCC 51, my colleague finds that hypnotically refreshed memories are, at least for now, presumptively inadmissible (para. 61).

132 This ignores the fact that the technique has been used in Canada for almost 30 years, and has been employed in Canadian criminal investigations to assist in memory retrieval of both Crown and defence witnesses for a similar amount of time. The earliest Canadian cases where this technique is reported are R. v. Pitt, 1967 CanLII 548 (BC SC), [1968] 3 C.C.C. 342 (B.C.S.C.), and R. v. K., 1979 CanLII 3061 (MB PROVJCT), [1979] 5 W.W.R. 105 (Man. Prov. Ct.). Many more cases emerged in the 1980s and 1990s. As well, as early as 1979, this Court specifically acknowledged the use of forensic hypnosis by police forces and by defence counsel: see Horvath v. The Queen, 1979 CanLII 16 (SCC), [1979] 2 S.C.R. 376, at pp. 433-34, per Beetz J. These cases stand for the proposition that hypnosis is in no way a novel science.

133 A scientific technique or knowledge will be considered “novel” in two situations: when it is new, or when the application of recognized scientific knowledge or technique is new (see J.-L.J., at para. 35). In J.-L.J., the expert in issue was characterized as a “pioneer in Canada” in trying to use a generally recognized therapeutic tool, penile plethysmograph, as a forensic tool in order to determine common traits or characteristics of sexual deviants (para. 35). This is what made the science in that case “novel”. Hypnosis is not new science, nor is its use in forensic investigation new.

134 Deschamps J. maintains that the use of hypnosis in criminal investigation is not frozen in time and subject to judicial scrutiny when questioned. I agree. The question is how this process is to be undertaken and what is its object. One important question is the determination of the basis for the new query. As always, context is important. It is important to note, with regard to this, that very few Canadian courts have admitted hypnosis evidence without a voir dire as to its admissibility. This is contrary to some U.S. states that have adopted a per se admissibility rule (i.e., admission without a voir dire): see State v. Brown, 337 N.W.2d 138 (N.D. 1983); State v. Jorgensen, 492 P.2d 312 (Or. Ct. App. 1971); State v. Glebock, 616 S.W.2d 897 (Tenn. Crim. App. 1981); and Prime v. State, 767 P.2d 149 (Wyo. 1989). This illustrates the difficulty in applying foreign precedents without paying attention to differences in approaches. In Canada, the trend has always been to hold a voir dire examining the entire factual context surrounding the hypnosis evidence, with experts called to discuss the science of hypnosis and give their opinion as to whether the evidence in issue is sufficiently reliable to be admitted. See, for example: R. v. Zubot (1981), 47 A.R. 389 (Q.B.); Clark; R. v. Hart, [1990] O.J. No. 2678 (QL) (H.C.J.); R. v. Sanchez-Flores, [1993] O.J. No. 4161 (QL) (Gen. Div.); R. v. Gauld, [1994] O.J. No. 1477 (QL) (Gen. Div.); R. v. Taillefer (1995), 1995 CanLII 4592 (QC CA), 100 C.C.C. (3d) 1 (Que. C.A.), at p. 22; R. v. Savoy, [1997] B.C.J. No. 2747 (QL) (S.C.); R. v. Terceira (1998), 1998 CanLII 2174 (ON CA), 38 O.R. (3d) 175 (C.A.), aff’d 1999 CanLII 645 (SCC), [1999] 3 S.C.R. 866; R. v. B. (A.) (2004), 2004 CanLII 41327 (QC CQ), 27 C.R. (6th) 283 (C.Q.); and R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.). I fail to see how this is not “judicial assessment” of forensic hypnosis evidence. Clearly, the use of hypnosis evidence has been put to judicial scrutiny.

3.1.3 J.-L.J. Does Not Apply in This Case

135 Aside from one of the earliest cases on the subject (R. v. K.), none of the Canadian cases that have considered hypnotically refreshed evidence have countenanced a rule of categorical exclusion. As well, other common law jurisdictions like the United Kingdom, New Zealand and Australia have found hypnosis evidence admissible and have not opted for categorical exclusion. While a number of American states have opted to exclude such evidence, this is quite recent and does not represent a unanimous or even dominant approach. It is also important to consider the context in which American law operates, as discussed later.

136 While the use of forensic hypnosis has not been assessed under the framework set out in J.-L.J., this does not mean that evidence derived from this technique has been admitted into trials without sufficient scrutiny into its reliability. Compliance with the Clark guidelines has been seen as an important, though not the exclusive, condition of admissibility. The standard of proof on the voir dire, as well as the onus of proof, was correctly set out by Corbett J. in Sanchez-Flores, at para. 26:

I am treating this application as one where the Crown must establish on a balance of probabilities that the witness’s hypnotically-aided memory has achieved an acceptable level of reliability by considering the R. v. Clark safeguards. Implicit in this approach is that there should be some evidence to establish that the subject has in fact been hypnotized, and that the subject’s memory has been retrieved through hypnosis. The R. v. Clark criteria themselves only address the manner of hypnosis and to these safeguards must be added the requirement that investigating officers and others involved with the subject should not intentionally or inadvertently provide the subject with information.

137 The trial judge in the case at bar relied on Sanchez-Flores as an authority on the standard of reliability that hypnotically refreshed memories should meet (see Ruling re Hypnosis, A.R., at pp. 24-27). He saw his role as ensuring that Ms. Haghnegahdar’s hypnotically enhanced memories met an acceptable level of reliability, and not simply assuring that the Clark guidelines were followed, as my colleague suggests:

. . . It seems to me I have to determine whether, having regard to all of the circumstances surrounding the contact with Gity Haghnegahdar there is any reason, any risk, any serious risk that her recollection has been contaminated in the sense that suggestions have been put to her and have assisted her recollection that make her evidence so manifestly unreliable that it is of no probative value, or very little probative value.

[A]s I see it, what I want to find out is whether or not there is evidence here that taints the reliability of this evidence in the sense, did somebody put words in her mouth, did she hear things which make it likely she is simply responding to what others told her about times and dates, or did she simply begin to recall more things after the hypnosis session.

If it is true, as the evidence suggests, it was the latter, then to me the evidence prima facie would be admissible subject to weight. [Emphasis added.]

(A.R., at pp. 549-51; see also, A.R., at p. 744, where he reiterates that his inquiry is into whether the evidence is “too unreliable to be heard”.)

Thus, even at the time of the trial, well before J.-L.J., the common law required that the trial judge be satisfied that the evidence sought to be admitted was sufficiently reliable to be put to the jury. After hearing five days worth of evidence and argument during the voir dire, the trial judge so concluded. There was no burden on the Crown at the time to “revers[e] the presumption” of inadmissibility for hypnotically refreshed memories, as my colleague suggests at para. 61 of her reasons. There was no such presumption forming part of our law at the time of trial.

138 The test for assessing the reliability of scientific evidence set out in J.-L.J. is not “new law” requiring that scientific methods, previously accepted as legitimate by our courts, must now be resubmitted for scrutiny under the J.-L.J. test. Many earlier cases cautioned for scrutiny of evidence based on new scientific methods and set out factors upon which trial judges may rely upon when assessing the reliability of such evidence: see R. v. Medvedew (1978), 1978 CanLII 2101 (MB CA), 43 C.C.C. (2d) 434 (Man. C.A.), at pp. 447-48, per O’Sullivan J.A., dissenting; R. v. Nielsen (1984), 1984 CanLII 40 (MB CA), 16 C.C.C. (3d) 39 (Man. C.A.), at pp. 68-69; R. v. Melaragni (1992), 1992 CanLII 12764 (ON SC), 73 C.C.C. (3d) 348 (Ont. Ct. (Gen. Div.)), at p. 353; R. v. Johnston (1992), 1992 CanLII 12790 (ON SC), 69 C.C.C. (3d) 395 (Ont. Ct. (Gen. Div.)), at p. 415; R. v. Dieffenbaugh (1993), 1993 CanLII 6878 (BC CA), 80 C.C.C. (3d) 97 (B.C.C.A.); R. v. J.E.T., [1994] O.J. No. 3067 (QL) (Gen. Div.), at para. 75; and R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 117 C.C.C. (3d) 385 (Ont. C.A.), at p. 394. Thus, neither R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, nor J.-L.J. introduced the concept of probing scientific evidence. In fact, it was specifically rejected in Terceira (Ont. C.A.), that Mohan introduced a new standard for the assessment of novel science: “the rules laid down by Sopinka J. in R. v. Mohan, supra, do not signify a departure from the common law rules relating to the admission of opinion evidence in a criminal trial, nor do they purport to do so” (p. 185).

139 The point of both Mohan and J.-L.J. was to emphasize the need for courts to give special scrutiny to novel science or the new application of a recognized science, through a case-by-case evaluation, in light of the changing nature of our scientific knowledge (see J.-L.J., at para. 34). See also S. C. Hill et al., McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), vol. 1, at p. 12-34:

Although the suggestion has been made that opinion testimony involving a novel field of expertise requires “a higher threshold of reliability” than attaches to other expert opinion testimony, this is not the prescription of Mohan. Closer scrutiny means a more searching investigation or examination than normal into the reliability and validity of the science but not raising the bar of reliability to a higher standard than the admission entry point for non-novel science. [Emphasis added.]

J.-L.J. was not intended, as my colleague appears to suggest, to set down a rigid formula where the results must be proved beyond a reasonable doubt before scientific evidence can be admitted. The factors from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), adopted in J.-L.J. were designed to be flexible and non-exclusive. As noted above, similar factors to assist courts in assessing the reliability of scientific evidence have existed at common law long before J.-L.J. was decided. Well-established scientific methods accepted by our courts do not need to be systematically reassessed under J.-L.J. While my colleague suggests that not all previously accepted scientific techniques will have to be reassessed under J.-L.J., her guidance that science which is “so well established” (at para. 31) need not be reassessed is so vague that it opens the door to most if not all previously accepted techniques being subject to challenge under J.-L.J., without establishing a serious basis for the inquiry.

140 A further concern I have about Deschamps J.’s approach to J.-L.J. is that although she states that the standard it requires is “sufficient reliability” (para. 33), her reasoning really reflects a standard of total consensus by members of the scientific community. She acknowledges that hypnosis has been the subject of significant study and peer review, as well as testing, yet, because there is not unanimity in the scientific community on the reliability of hypnotically refreshed memories, she would find this evidence inadmissible. In my view, this standard is more akin to the “general acceptance” test that this Court specifically rejected in Mohan in favour of the Daubert “reliable foundation” test, as stated in J.-L.J., at para. 33:

Mohan kept the door open to novel science, rejecting the “general acceptance” test formulated in the United States in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and moving in parallel with its replacement, the “reliable foundation” test more recently laid down by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

In the test set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), demonstrating “general acceptance” of a theory or technique within a scientific community was the requirement to be met, while under the Daubert test adopted in J.-L.J., “general acceptance” is weighed as only one of several factors to be considered. The problem with the mandatory “general acceptance” standard in Frye has been summarized as follows:

The test does not specify what proportion of experts constitute general acceptance. Courts have never required unanimity, and anything less than full consensus in science can quickly resemble substantial disagreement. In fact, the most rigorous fields with the healthiest scientific discourse might fail the Frye test with the greatest frequency.

(D. L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony (2005), vol. 1, at p. 9)

As this passage demonstrates, total unanimity is impossible to obtain and therefore completely unrealistic to expect. I fear that the high standard of reliability my colleague champions will result in the exclusion of far too much relevant and probative evidence.

141 Finally, I add that in order to come to the conclusion that hypnosis evidence does not meet the criteria of general acceptance, my colleague relies almost exclusively on the position of experts discussed in American cases. This is not a sufficient evidentiary foundation upon which to arrive at such a conclusion. However, this was the sole evidence the appellant advanced before this Court in support of his argument that it should adopt a general exclusionary rule towards hypnosis evidence. Ironically, I note that even in the U.S. case the appellant relies upon most, State v. Moore, 852 A.2d 1073 (2004), the New Jersey Supreme Court determined that the record was inadequate to reconsider its position on hypnotically refreshed memories and remanded the matter to the trial court for rehearing.

142 In effect, Deschamps J. is acceding to the appellant’s invitation to take judicial notice of what some experts have testified to in these American cases. In R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32, at paras. 48-49, this Court specifically rejected the possibility of courts ever taking judicial notice of expert evidence:

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross‑examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.

The scientific and statistical nature of much of the information relied upon by the appellant further complicates this case. Expert evidence is by definition neither notorious nor capable of immediate and accurate demonstration. This is why it must be proved through an expert whose qualifications are accepted by the court and who is available for cross‑examination. . . . [Emphasis added.]

143 It is especially problematic for courts to rely on expert evidence heard in other cases. This ignores the danger that experts are often chosen to support the position of the party presenting them. T. M. Bubela comments on the phenomenon of partisan experts in “Expert Evidence: The Ethical Responsibility of the Legal Profession” (2003-2004), 41 Alta. L. Rev. 853, at p. 854:

There are many problems for the administration of justice associated with the selection of experts and the use of expert testimony by opposing counsel in an adversarial setting. The problems may be grouped into two categories: substantive issues of justice and fairness, and procedural issues related to cost and efficiency. In the former category, the main concern is that a potential litigant will search far and wide for an expert prepared to express an opinion consonant with the case contended for by the client’s lawyers. Trials thus become a “battle of the experts” with a technically untrained judge selecting between competing theories.

While the risk of expert partisanship exists in every case, it becomes even more pronounced when this evidence is introduced through external cases, where the expert’s comments originate in a different factual context (see, on this point, R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 13-14, per McLachlin C.J.), and where the parties to the current proceeding do not have an opportunity to test this evidence through leading contrary evidence or through cross-examination. I would reiterate here my comments on the use of extrinsic evidence in R. v. Sappier, [2006] 2 S.C.R. 686, 2006 SCC 54, at para. 71: “I would agree that it is generally wise not to incorporate evidence submitted in other cases without disclosing it to the parties and allowing them the possibility of challenging it or presenting contrary evidence.”

144 Deschamps J. would allow this ground of the appeal without a proper evidentiary foundation, thereby depriving the Crown of the right to present contrary evidence or to cross-examine the experts who maintain such a position.

3.1.4 The Long-Standing Admissibility Rule for Hypnotically Refreshed Memories

145 For the near 30 years that Canadian courts have considered hypnosis evidence, the admissibility rules applied to such evidence have been those applied to refreshed memories: the evidence is admissible, with potential frailties created by the means of refreshing the memory going to weight. We find an articulation of this choice of approach in Clark, at pp. 122-23:

In principle there would appear to be nothing to distinguish hypnotically‑refreshed testimony from testimony refreshed by other means. Witnesses daily appear in our courts and give testimony after having reviewed, prior to testifying, reports or notes which were made at the time of their original observations. Indeed, we go so far as to permit witnesses to refer to such notes during the actual process of testifying, where we are satisfied that the notes were made sufficiently contemporaneous with the witness’s original observation. As in the case of hypnosis, there is always a danger that a witness's testimony may have been tainted by information supplied by another individual. An over‑zealous policeman may allow an eye‑witness to review a police report containing a full description of the accused. In the case of such a witness our approach would not be to exclude his evidence; rather, the evidence would be considered unreliable and afforded little weight. . . .

146 To be more precise, the approach to admissibility has been closer to the process for admitting past recollections recorded than present memory refreshed (our courts have not always distinguished between the two — see Stewart, at p. 78). For refreshed memories to be admissible, the stimulus for recovering the memory itself need not be admissible: this was recently reaffirmed in R. v. Fliss, [2002] 1 S.C.R. 535, 2002 SCC 16, at para. 45. However, for past recollection recorded evidence to be admissible, conditions are imposed upon the past record used to refresh memory to ensure that it meets certain circumstantial guarantees of reliability: see R. v. Meddoui (1990), 1990 CanLII 2592 (AB CA), 61 C.C.C. (3d) 345 (Alta. C.A.), at p. 352, per Kerans J.A., and Fliss, at paras. 63-64. Similarly, Canadian courts have rarely found hypnotically refreshed memories admissible per se, but instead have held voir dires to assess whether such evidence is sufficiently reliable. As earlier noted, compliance with the Clark guidelines has been seen as an important, though not the exclusive, condition of admissibility.

3.1.5 Insufficient Evidentiary Record to Challenge the Rule

147 I note that the appellant did not challenge the admissibility rule at the time of the trial, but rather tried to show that Ms. Haghnegahdar’s evidence was not sufficiently reliable to be admitted by calling experts to testify as to potential problems with adhering to the Clark guidelines and other issues, such as pre- and post-hypnotic suggestion, confabulation, etc. It is only before this Court and the Court of Appeal that Mr. Trochym sought to challenge the long-standing admissibility rule. In order to properly challenge such a rule, however, he was required to present direct expert evidence on why the rule should no longer be accepted, not just some academic commentary supporting this position. No such evidence was presented. I have serious reservations about courts conducting personal research — and forming conclusions on the basis of such research — in areas that require expertise, like the sciences.

148 The sole evidence the appellant advanced before this Court on the hypnosis issue was a handful of American cases in which the courts have opted for categorical exclusion. This is not a sufficient evidentiary foundation upon which this Court should overturn a long-standing Canadian common law rule.

3.1.6 Concerns Raised Regarding Hypnosis Are Not New Nor Insurmountable

149 The concerns my colleague raises are not new and have been taken into account by trial judges in virtually every voir dire held to determine the admissibility of hypnotically refreshed memories.

150 A review of Canadian hypnotically refreshed evidence cases reveals that when trial judges consider the admissibility of hypnosis evidence, they hear about the divergent opinions on the use of forensic hypnosis in the scientific community, including concerns regarding the dangers associated with hypnosis, such as suggestibility, confabulation and memory hardening, and they take these into consideration when deciding whether to admit the specific evidence. See, for example: Clark, at pp. 120-21; Sanchez‑Flores, at paras. 24‑25; Gauld, at paras. 16‑23; Savoy, at paras. 16‑18; and Baltovich, at para. 55. At paragraph 60 of Baltovich, the Ontario Court of Appeal noted:

The dangers referred to . . . are well documented. As previously mentioned, these dangers have been identified as confabulation, susceptibility to suggestion and memory hardening. Expert testimony on the voir dire alerted the trial judge to those dangers and he considered them in arriving at his decision to admit [the witness’s] post‑hypnosis evidence.

151 In the case at bar, the trial judge was similarly alerted to these potential dangers by Drs. Pollock and Yarmey. He was empowered to exclude the evidence if he found hypnosis rendered the evidence of Ms. Haghnegahdar insufficiently reliable to go to the jury. However, having found substantial compliance with the Clark guidelines, as well as having been shown, through the Crown’s cross‑examination, that the concerns raised by the defence experts were not live ones with respect to Ms. Haghnegahdar’s evidence, the trial judge ruled the evidence admissible.

152 The standard for admissibility applied by the trial judge was sufficient reliability and not reliability beyond a reasonable doubt. McCombs J. was under no illusion that hypnosis would guarantee the truth of Ms. Haghnegahdar’s evidence. He recognized that if done properly and without suggestion, hypnotically refreshed memories could only be as reliable as regular memory (A.R., at p. 30). In my view, it would be unreasonable to expect hypnotically refreshed memories to be more reliable than regular memories. My colleague has concerns about the reliability of hypnotically refreshed memories because they are not immune to external sources of suggestion and because there is no guarantee that such memories are likely to be either accurate or inaccurate (para. 55). However, the same is true of all memory. A witness who testifies from ordinary memory a year and a half after seeing a crime, may inadvertently incorporate facts he gleaned from the media or others into their recall. There is no guarantee with respect to the accuracy of such ordinary memories either. Judges know these risks, yet we do not deem such evidence inadmissible. These sorts of potential frailties with memory, whether ordinary or hypnotically refreshed, are those that we have always assumed juries are quite capable of weighing. As mentioned in para. 114, appellate courts must have faith in the intelligence and common sense of juries and in the ability of trial judges to properly charge them.

153 Furthermore, I note that the one source of potential suggestion my colleague flags in the instant case was raised and considered at the voir dire. Looking at the transcript of Ms. Haghnegahdar’s second interview with police as a whole, the trial judge did not see any influence exerted by police in their questioning. As well, the assumption that police wanted Ms. Haghnegahdar to choose Wednesday over Thursday at such an early point in their investigation, when neither the time of the murder had been established conclusively, nor had Mr. Raymer and Ms. Humenick given their statements regarding the Wednesday, is not a reasonable one, in my view. The trial judge also doubted the likelihood of influence on this point because the sighting itself, not the day on which it occurred, was what was crucial to police (see Ruling re Hypnosis, A.R., at p. 19).

154 Finally, the problem my colleague raises with regard to cross-examining a witness whose memory has been refreshed through hypnosis — the impossibility of challenging the veracity of their memory — also arises in the context of a witness whose evidence is presented through past recollections recorded (see R. v. Holmes (1989), 1989 CanLII 3450 (AB KB), 99 A.R. 106 (Q.B.)). However, this has not provoked courts to categorically exclude such evidence. Courts have been satisfied by the fact that witnesses can be cross-examined about how their memories were recalled, the circumstances surrounding the recall and prior inconsistent statements (P. M. Perell, “Proof of an Event of which a Witness Has No Memory” (2003), 26 Advocates’ Q. 95, at pp. 100-101). I see no reason why the situation should be any different for hypnotically refreshed memories.

3.1.7 Problems With Excluding Testimony on Subjects Covered by Hypnosis

155 Though it may not be necessary to deal here with the constitutionality of prohibiting an accused from testifying freely at his or her own trial, which would be the result of the approach taken by Deschamps J., and constitutes a matter discussed in Rock v. Arkansas, 483 U.S. 44 (1987), by the Supreme Court of the United States, it is obvious that this issue is very serious; the decision to prohibit all testimony that has been the subject of hypnotic enhancement is a matter that cannot be resolved without consideration of the dangers posed. Without even considering the constitutional issue, I am of the view that limiting Ms. Haghnegahdar’s right to testify is not a satisfactory solution in this case, because this means that she will be unable to testify at retrial about seeing the accused coming out of Ms. Hunter’s apartment at a time when forensics determined Ms. Hunter would have already been dead, but before her body was discovered by authorities. This is highly probative evidence for the Crown’s case as it supports the “staging” argument, contradicts the appellant’s testimony that he never went back to the apartment and, at the very least, signifies that he knew she had been brutally murdered and yet took no action.

156 The only aspect of this testimony that was refreshed through hypnosis was the day the sighting occurred. However, as noted by the trial judge (A.R., at pp. 18-19), whether the sighting occurred on the Wednesday or Thursday does not change the significance of the evidence. Therefore, to exclude all of the evidence when only this point was clarified through hypnosis, strikes me as an inflexible and disproportionate solution. The goal of the court process is truth seeking, and a just result is best achieved when all relevant and probative evidence is put before the jury: L. (D.O.), at pp. 454-55.

3.1.8 The Agreement Between Counsel Was Proper

157 I cannot agree that it was inappropriate for the trial judge to permit this agreement. It is argued that the impetus for the agreement between the defence and the Crown not to put the issue of Ms. Haghnegahdar’s hypnosis before the jury was a concern by defence counsel that members of the jury might view hypnotically enhanced memories as infallible. As framed, this suggests that defence counsel’s concern was that the jury would have heard that Ms. Haghnegahdar’s memories had been refreshed by hypnosis and would have automatically and uncritically accepted these as true.

158 As I read the record of the discussions between defence and Crown counsel and the trial judge on this issue, there were two concerns motivating the defence to strike this deal, and these were strictly tactical and not born out of some fear that the jury would uncritically accept the hypnosis evidence. The first appears to have been about the time it would take to put such evidence before the jury. Second, and relatedly, was a realization that the hypnosis evidence was quite credible and, if the jury were told that it was hypnosis evidence, they would be even more likely to believe Ms. Haghnegahdar. This can be seen in the following exchange between defence counsel and the trial judge:

THE COURT: I concluded, after viewing it all, that it was credible evidence and should be heard by the jury. The jury may disagree with me, but, frankly, if you want my own opinion of how the jury will react to it, it’s my opinion that it’s only going to strengthen the Crown’s case if they hear all about the hypnosis.

[DEFENCE]: Well, quite frankly, you know, sir, that was part of my consideration when considering the matter from our end. . . .

(A.R., at p. 1464)

In the face of this admission by defence counsel that it would be more beneficial to its case to withhold all of the expert evidence about hypnosis from the jury rather than having the jury hear and critically assess it, the argument that this agreement may have caused significant prejudice to the accused, and even jeopardized his rights under s. 7 of the Canadian Charter of Rights and Freedoms, is gratuitously expedient. Courts should not readily permit an appellant to reverse tactical decisions on appeal: see Terceira (Ont. C.A.), at pp. 207-8.

159 Furthermore, there was precedent presented to the trial judge of similar agreements having been reached in other criminal cases. In fact, defence counsel informed the trial judge that he had formed a similar agreement with Crown in a previous case. Thus, at the time counsel proposed this agreement, there was nothing in the law to suggest to the trial judge that such an agreement was inappropriate. Generally, I am of the view that juries should be informed of efforts to enhance memory, as they are quite capable of assessing this evidence and giving it proper weight. However, there is no absolute rule on this point, and agreements between counsel should be respected where no prejudice is shown to have been caused to a party.

3.1.9 Conclusion on Hypnotically Refreshed Evidence

160 Perhaps a better evidentiary foundation in a future case may demonstrate that it is time for Canadian courts to reconsider the long-standing admissibility rule for hypnotically refreshed memories. That decision cannot be made in this case. For now, I would simply caution our courts not to encourage the practice of forensic hypnosis until better evidence is available regarding its value. However, I have not been persuaded at this point, on this record, that a complete exclusion of such evidence in all cases is appropriate, as this could deprive the trier of fact from hearing relevant, probative, and even sometimes critical evidence, to either the Crown’s or defence’s case in some instances. In my view, the admissibility of such evidence should always be made on a case-by-case basis. Here, the evidence was highly relevant to the Crown’s case and shown to be quite credible. In my view, the trial judge made no legal error in admitting it.

3.2 Post-Offence Conduct

161 Post-offence conduct is one type of circumstantial evidence. It is not fundamentally different from other kinds of circumstantial evidence: White, at para. 21. It can take various forms: what the accused said to others or the police; what the accused did not say to others or the police; what the accused did; what the accused did not do; and how the accused seemed to others (i.e., demeanor evidence). It can also be used for various purposes: to support inferences of consciousness of guilt or even to support inferences of innocence (see R. v. B. (S.C.) (1997), 1997 CanLII 6319 (ON CA), 36 O.R. (3d) 516 (C.A.)); to connect the accused to the scene of the crime or to a piece of physical evidence; or to undermine the credibility of the accused in general (White, at para. 26).

162 When used to support inferences of consciousness of guilt, no special rules of admissibility apply apart from the rules that apply to all evidence generally. The evidence is admissible as long as its probative value outweighs its prejudicial effect; there is no special exclusionary rule applicable: R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.). There is no separate burden of proof for such evidence: White and R. v. Ménard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109, at para. 23.

163 This Court has recognized, however, that evidence of post-offence conduct introduced to support an inference of consciousness of guilt can be highly ambiguous and susceptible to jury error: White, at para. 22. The danger exists that a jury may erroneously leap from such evidence to a conclusion of guilt: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129. The solution to this potential problem chosen by this Court has been to require the trial judge to properly instruct the jury as to the use of this evidence: White, at para. 23. The choice of this solution is grounded in respect for the role of the jury in criminal trials:

As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post‑offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact‑finding role. [Emphasis added.]

(White, at para. 27)

164 That said, there has been growing concern with respect to the use of demeanor evidence to support inferences of consciousness of guilt because of the highly subjective nature of such evidence: see R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.); R. v.