ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20120926
BETWEEN:
HER MAJESTY THE QUEEN Respondent - and - D.F.F Applicant
Patricia Garcia , for the Respondent/Crown
Harry Doan , for the Applicant
HEARD: September 25, 2012
Kelly j.
REASONS FOR DECISION
Re: Admissibility of Expert Opinion
[ 1 ] Mr. D.F.F. has been charged with one count of sexual interference and one count of sexual assault on his niece. It is alleged that this occurred when Mr. D.F.F. was 24 years of age and the complainant was 7 years of age.
[ 2 ] Mr. D.F.F. was arrested on April 24, 2009. He was given his rights to Counsel, had an opportunity to speak to Duty Counsel and then spoke to police. In his statement, he admits to touching the complainant as she alleges.
[ 3 ] A voir dire was commenced as Mr. D.F.F. contests the voluntariness of the statement. He says that he was severely depressed at the time he gave his statement to police and accordingly, he did not have an operating mind. As part of this voir dire , Mr. D.F.F. sought to tender expert evidence: the opinion of Dr. James Alan Long. Dr. Long submits that Mr. D.F.F. was in fact depressed at the time he gave his statement and accordingly, did not have an operating mind.
[ 4 ] Crown Counsel contested the admission of Dr. Long as an expert witness. She submitted that he is not an expert in clinical depression. Further, she submitted that the opinion was not relevant or necessary to decide matters in this case. I agree that the expert opinion of Dr. Long is not necessary.
[ 5 ] During the hearing, I advised Mr. D.F.F. that I would not admit the evidence of Dr. Long because it does not meet the requirement of necessity as outlined in the case of R. v. Mohan . [1] As such, it is not necessary for me to make a finding with respect to either Dr. Long’s expertise or the relevance of such evidence.
[ 6 ] Mohan sets out the four criteria regarding the admission of expert evidence, one of which is “necessity in assisting the trier of fact”. The necessity requirement is not met where the proposed evidence is “merely helpful” or “might reasonably assist the jury”. To meet the standard of being necessary, the evidence must be such that it allows the fact finder:
a. To appreciate the facts due to their technical nature; or
b. To form a correct judgment on a matter where ordinary persons are unlikely to do so without the help of those with special knowledge. [2]
[ 7 ] Dr. Long has a lengthy resume. He has obtained a Master’s Degree and a Doctorate in Clinical Psychology. He has practiced as a Clinical Psychologist for over 45 years and he has testified as an expert witness on several occasions. Despite his resume, the evidence proposed to be elicited by Dr. Long is not necessary. This became obvious during the voir dire regarding his qualifications.
[ 8 ] When asked why it would be necessary for the Court to hear from Dr. Long, I was advised of the following:
a. Dr. Long’s evidence would corroborate the evidence of Mr. D.F.F. who has already testified that he was depressed at the time of the statement.
b. Dr. Long found that Mr. D.F.F. was “extremely fatigued” and in a “confused state” when giving the statement and after having reviewed the video of it. Mr. D.F.F. was “feeling that he had no hope” and “abandoned by family members”. He was in a state of despair and anxiety: all of which was conveyed to me during Mr. D.F.F.’s testimony.
c. Dr. Long could not provide a diagnosis in a “formal sense”. He did not conclude that Mr. D.F.F. was suffering from any psychiatric illness.
d. Dr. Long has no specific training in depression, despair or anxiety but he has had tremendous experience with patients suffering depression. He concluded that Mr. D.F.F. was suffering as a result of various stressors as reported to him by Mr. D.F.F..
[ 9 ] While I appreciate that the party tendering the evidence must establish the admissibility of the opinion on a balance of probabilities and while I appreciate that the standard of necessity should not be too strict when it is defence evidence [3] , it is my view that this opinion evidence still does not meet the threshold for admissibility. The evidence of Dr. Long cannot offer any diagnosis, but simply parrots how Mr. D.F.F. says that he was feeling at the time of giving the statement.
[ 10 ] It is my view that the evidence proposed to be tendered by Dr. Long is not necessary for me as the trier of fact. I do not find the purported expert opinion proffered to be outside of my experience and that such an opinion will assist me in reaching the correct conclusion about the matter. Based upon the evidence to date and received from Mr. D.F.F. himself, I am satisfied that I am able to reach a conclusion regarding the voluntariness of the statement without admitting the evidence of Dr. Long.
Kelly J.
Released: September 26, 2012
DATE: 20120926
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:
HER MAJESTY THE QUEEN Respondent - and - D.F.F. Applicant
REASONS FOR DECISION Re: Admissibility of Expert Opinion Kelly J.
Released: September 26, 2012
[1] 1994 80 (SCC) , [1994] 2 S.C.R. 9 (S.C.C.)
[2] See: R. v. D.D. , 2000 SCC 43 , [2000] 2 S.C.R. 275 (S.C.C.)
[3] See: R. v. Abbey (2009), 2009 ONCA 624 , 68 C.R. (6 th ) 201 (Ont.C.A.)