ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-30325
DATE: 2012/10/30

PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE

BETWEEN:

HER MAJESTY THE QUEEN Crown – and – TOBY LITTLE OTTER LAND Accused

David Elhadad and Carl Lem, for the Crown
Anne London Weinstein and Neil Weinstein, for the Accused

HEARD: October 24 , 2012

MID-TRIAL RULING #4 REGARDING SIMILAR FACT EVIDENCE

AITKEN j.

Nature of the Application

[ 1 ] The Crown, three days after it had closed its case, and on the eve of the Defence opening its case, brought an application for leave to tender evidence of discreditable conduct on the part of the Accused, Toby Land. The following morning I provided counsel with my ruling, as set out below, and I undertook to provide written reasons subsequently. These are those reasons.

[ 2 ] The Crown sought to tender evidence of Mr. Land’s violent behaviour on other occasions towards individuals he perceived to be paedophiles. The specific evidence sought to be tendered was the following:

• Statements made by Mr. Land to Dr. Julian Gojer, a forensic psychiatrist retained by the Defence to provide expert opinion evidence as to psychological factors that may have impacted on Mr. Land’s mental state on the night of May 4, 2009. In either Dr. Gojer’s notes or report, it is suggested that Mr. Land admitted to:

o Assaulting an accused child molester in jail while incarcerated awaiting this trial;

o Intervening physically in the past when he perceived that individuals were going to molest children or women;

o Assaulting his brother, Randy, when Randy told him that he had sexually assaulted their sister; and

o Hitting up to 50 different men for assaulting adult females.

• Independent evidence of a March 31, 2011 assault by Mr. Land on another inmate at the Regional Detention Centre whom Mr. Land identified as a paedophile. The evidence consists of the testimony of correctional staff and a security video that captured the assault.

[ 3 ] The Crown argued that this evidence was admissible on two bases:

• It is relevant to the following critical issues in this trial:

o Who was wielding the sword on the night in question;

o Whether Mr. Land had the requisite mens rea for murder; and

o Whether Mr. Land was provoked by Mr. Doyon.

• It is necessary in order to permit adequate cross-examination of Dr. Gojer.

[ 4 ] In regard to all of these issues, the Crown argued that the probative value of the evidence outweighed its prejudicial effect.

[ 5 ] In regard to the first ground for admission of the evidence, the Defence did not object to the cross-examination of Mr. Land and Dr. Gojer in regard to Mr. Land’s statements that he had intervened physically when he perceived individuals were going to molest women or children, that he had hit up to 50 different men for assaulting adult females, or that he assaulted his brother Randy when his brother told him that he had sexually assaulted Mr. Land’s sister. The Defence did object to the cross-examination of Mr. Land and Dr. Gojer in regard to the assault at the Regional Detention Centre. The Defence also objected to any independent evidence being tendered in regard to that incident.

[ 6 ] In regard to the second ground for admission of the evidence, the Defence proposed that a voir dire be conducted prior to Dr. Gojer testifying to determine whether and, if so, to what extent, Dr. Gojer considered and relied upon Mr. Land’s statement about the alleged assault at the Regional Detention Centre in arriving at his opinion regarding factors influencing Mr. Land’s mental state when he killed Mr. Doyon.

Timing of this Application

[ 7 ] As I indicated to counsel when this application was argued, I was troubled by the timing of the application. From the time of Mr. Land’s arrest, the Crown has been aware that the central issue in this case is whether Mr. Land had the requisite mental state for murder. From the very first interview that Detective Gordon had with Mr. Land within hours of his arrest, the Crown learned that Mr. Land disapproved of Mr. Doyon’s relationship with a 14 or 15 year old girl. From the interview with Detective McIntosh on May 7, 2009, the Crown learned that Mr. Land had a strong hostility toward individuals whom he considered child molesters or paedophiles, and Mr. Land admitted that he had assaulted people in the past whom he suspected of abusing children. From the description of events that Mr. Land gave Detective Gordon in the first interview, it was clear that provocation would be on the Defence radar. Therefore, the Crown cannot argue that it was only during the trial that it realized the significance of these issues. In fact, during its own case, the Crown adduced evidence from a number of witnesses about the negative animus Mr. Land felt toward Mr. Doyon.

[ 8 ] The incident at the Regional Detention Centre happened on March 31, 2011. The resulting charge against Mr. Land of assault causing bodily harm was laid in January 2012. It is being handled by Crown counsel who work from the same office as the Crown counsel prosecuting this case. Therefore, the Crown had knowledge, or had the ability to gain knowledge, of this occurrence well before the pre-trial motions in this trial were heard at different times during June, July, and August, 2012, and well before the trial started on October 1, 2012.

[ 9 ] Under rules 30.01 and 30.02 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) , SI/2012-7, when a party to a criminal proceeding in this court seeks to have evidence admitted that a common law rule or other rule of admissibility renders presumptively inadmissible, such as evidence of disreputable conduct by an accused or evidence of similar acts, an application to admit such evidence must be made to the judge scheduled to preside at the trial. Rule 30.04(1) states:

Any party who seeks to have evidence admitted under this rule shall give the notice required by rule 30.03 not less than thirty (30) days before the day first scheduled for the hearing of the pre-trial motions or trial, as the case may be, unless otherwise ordered by a judge under these rules.

[ 10 ] No reason has been advanced as to why the similar fact evidence application regarding the incident at the Regional Detention Centre could not have been brought at the same time as the other pre-trial motions. This was not a situation where the Crown was seeking to introduce bad character evidence to counteract good character evidence advanced by an accused during the course of his evidence-in-chief. Obviously, that can only be dealt with during the trial. Instead, this was a situation where the Crown wanted bad character or propensity evidence of which it had been aware for months to be admissible in regard to issues of which it had been aware from the beginning of the case.

[ 11 ] The situation is different in regard to the other statements referred to above in Dr. Gojer’s report or notes. The Crown cannot be faulted for not bringing the similar fact application in regard to the other items in Dr. Gojer’s report and notes prior to October 19, 2012 since Crown counsel only received the report on October 16 th and the notes on October 18 th . Due to issues with Legal Aid, Dr. Gojer was retained only on the eve of trial and could not complete his report any earlier than October 16 th . However, the proper course of action would have been for Crown counsel at the earliest opportunity to advise Defence counsel that it would seek an admissibility ruling on the new similar fact evidence in Dr. Gojer’s report, to inquire if Defence counsel objected and, if necessary, to bring their application prior to the Defence opening its case. In that Defence counsel did not object to the entries referenced in Dr. Gojer’s notes, aside from the assault at the Regional Detention Centre, no similar fact application would have been required during the trial to handle the matters which had only just come to the attention of Crown counsel.

[ 12 ] Both before and after delivery of Dr. Gojer’s report to Crown counsel, Defence counsel asked Crown counsel if they were contemplating bringing any similar fact application and, if so, when they were going to do so. This matter was discussed on the record on the morning of October 19 th , at which time I raised the issue of when such an application should be brought. Defence counsel stated that the application should have been brought at the pre-trial stage and certainly no later than the close of the Crown’s case. Crown counsel simply stated that they were thinking about when they would bring it, but did not feel compelled to bring it before Mr. Land testified. I questioned that approach.

[ 13 ] The Crown proceeded to close its case on Friday morning, October 19 th . The jury was sent away until Tuesday, October 23 rd . On Monday, October 22 nd , I heard three Defence applications: a Corbett application, a Scopelliti application, and an application for permission to cross-examine Carl St-Cyr. Defence counsel could not have brought these applications earlier. It was an exceedingly long day, and the jurors were contacted and told to return only on Wednesday, thus giving me a day to consider and rule on the three applications. The trial could not resume on Wednesday due to the illness of a juror. When court was opened on Wednesday to remand Mr. Land to the following day, Defence counsel again raised the issue of whether the Crown was planning to bring a similar fact application, as Defence counsel was concerned about putting Mr. Land on the stand not knowing what he could face upon cross-examination in regard to the assault at the Regional Detention Centre. Crown counsel maintained its position that it wished to wait and see how Mr. Land’s examination-in-chief went before bringing its similar fact application. I instructed Crown counsel to bring that application that afternoon if they wished to pursue it, as I had no intention of sending the jury away for another day and, in order to assure trial fairness for Mr. Land, the matter needed to be dealt with prior to the Defence opening their case. It was only shortly before 2 p.m. that Defence counsel received Crown counsel’s notice of application, factum, and book of authorities. Arguments on the application took all afternoon.

[ 14 ] Crown counsel did not seem to appreciate how disruptive it is in a jury trial to have mid-trial applications. The jury has to be sent away until the applications are dealt with, counsel may not have adequate time to prepare or respond to applications due to other trial preparations, and the trial judge is placed under inordinate pressure to digest all of the materials and provide a ruling at the earliest opportunity, while at the same time summarizing evidence, preparing the charge, crafting mid-trial instructions, and generally managing the trial. Obviously, some mid-trial applications are necessary and form part of most jury trials. But any applications that properly can be brought prior to trial, should be brought prior to trial.

[ 15 ] The Crown’s application regarding evidence of the assault at the Regional Detention Centre could properly be denied for failure to follow the mandated procedure in advancing it. In any event, I will go on to consider the merits of the Crown’s application and explain why, on a substantive basis, it also fails.

Legal Framework Regarding Similar Fact Evidence

[ 16 ] In R. v. Handy , 2002 SCC 56 () , [2002] SCC 56, 2 S.C.R. 908, Binnie J. set out the analytical framework in which similar fact applications are to be considered.

[ 17 ] As a starting point, evidence of general propensity or disposition is inadmissible because those accused of a crime are to be tried on the basis of their conduct, not their character. Thus, similar fact evidence relating to the discreditable conduct of the accused on another occasion is presumptively inadmissible to support the inference that, because the accused did something similar on an earlier occasion, he must be guilty of the crime before the court ( Handy , at paras. 31-36 ).

[ 18 ] This rule is subject to a narrow exception in circumstances where evidence of previous misconduct may be so highly relevant that its probative value outweighs any potential for misuse ( Handy , at para. 41 ). In R. v. B. (C.R.) , 1990 142 (SCC) , [1990] 1 S.C.R. 717 at 732, McLachlin, J. (as she then was) formulated the test for admissibility of disposition or propensity evidence as follows:

... evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.

[ 19 ] The onus is on the Crown to satisfy the trial judge on a balance of probabilities that, in the context of the particular case at hand, the probative value of the similar fact evidence in relation to a particular issue outweighs its potential prejudice and therefore should be admitted ( Handy , at para. 55 ).

Analysis Regarding Admissibility of Evidence to Prove Motive, Animus, Intention

Is the alleged discreditable conduct that of the accused?

[ 20 ] There is no issue that the similar acts the Crown wishes to tender in evidence are those of Mr. Land.

Is the proposed evidence relevant and material?

[ 21 ] Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence” (David M. Paciocco & Lee Stuesser, The Law of Evidence , 6 th ed. (Toronto: Irwin Law Inc., 2011) at 27). It is material if it is directed at a matter in issue in the case.

[ 22 ] The Crown argues that the similar fact evidence sought to be introduced is relevant to motive, animus, and intention. Mr. Land’s mental state at the time of Mr. Doyon’s death is the central issue in this case. The Crown wants the jury to appreciate just how much hostility Mr. Land harboured about paedophiles at the time he attacked Mr. Doyon. This, in turn, will assist the jury when considering the issues of whether Mr. Land acted without first being provoked, whether Mr. Doyon threatened Mr. Land with the sword, whether Mr. Land used the sword, and what mental state Mr. Land was in at the time Mr. Doyon was killed. The inference that the Crown seeks to have drawn through introduction of the similar fact evidence listed above is that Mr. Land assaulted Mr. Doyon, whom he considered a paedophile, without provocation, as a result of his hatred for Mr. Doyon – just as he had assaulted other individuals that he considered paedophiles or child molesters, without provocation, on other occasions both before and after May 4, 2009.

[ 23 ] The similar fact evidence sought to be adduced has some relevance and materiality to Mr. Land’s mental state when Mr. Doyon was killed in that it tends to support the proposition that Mr. Land has had a long and strongly held hostility toward paedophiles.

Is the proposed evidence discreditable to the accused?

[ 24 ] The proposed evidence is discreditable to Mr. Land in that it relates to assaults Mr. Land has committed on others.

Does the probative value of the evidence outweigh its prejudicial effect?

[ 25 ] The Crown wants the jury to conclude that the overriding factor that led Mr. Land to kill Mr. Doyon was Mr. Land’s hatred of paedophiles or child molesters. That hatred led to his having the necessary mental state for murder. In achieving this goal, the Crown wants to undermine any suggestion arising from the evidence of Mr. Land, Dr. Gojer, or otherwise, that Mr. Land’s actions were influenced by a pre-existing post-traumatic stress disorder, an underlying brain injury from childhood, or intoxication to the point that he was unable “[to weigh] the options available to him, weigh the pros and cons of his intended actions, ... plan or deliberate, or ... foresee or measure the consequences of his actions” (Dr. Gojer’s Report, p. 33).

[ 26 ] The Crown also wants to undermine the credibility of Mr. Land in regard to the statements he made to Detective Gordon and Dr. Gojer that Mr. Doyon went for his sword before Mr. Land started to hit him with the hammer.

[ 27 ] The evidence relating to the assault at the Regional Detention Centre is very reliable. It is also very powerful. The assault was captured on videotape. It appeared to be unprovoked. It was violent. Mr. Land delivered several blows with his hands and his feet. There is evidence that the victim suffered bodily harm.

[ 28 ] There is already evidence before the court that Mr. Doyon, who was in his thirties at the time, was sexually involved with J.G-M., who was 14 or 15 years old, and Mr. Land knew about this relationship. There is already evidence before the court that Mr. Land disapproved of this relationship. This evidence comes from the statements Mr. Land gave to Detectives Gordon and McIntosh and from the evidence of Ms. G-M. and Ms. Thérèse Germain. Mr. Land went into quite a bit of detail in his statement to Detective McIntosh about how he had been sexually abused by his father when he was a child, how he has tried to prevent the sexual abuse of children, how he has strong feelings about this issue, and how he confronted Mr. Doyon about his being a paedophile on the night of his death. It can be anticipated that Mr. Land will provide viva voce evidence of his hostility to paedophiles, and no objection is made to his being questioned about admissions he made concerning physical altercations in the past with numerous men whom he believed had or were abusing women or children. In short, it is hard to imagine that the jury has not already been left with the impression that Mr. Land hated paedophiles and will have this impression fortified by the statements Mr. Land made to Dr. Gojer, if not by Mr. Land’s evidence itself.

[ 29 ] In this context, the probative value of the evidence of the assault of a suspected paedophile at the Regional Detention Centre, to the issue of motive and negative animus, is significantly diminished. At this point in the trial, Mr. Land’s motive to hurt Mr. Doyon and his negative animus toward Mr. Doyon are not truly live issues that require more evidence to establish through the similar fact evidence of the event at the Regional Detention Centre which, in the normal course, would be inadmissible.

[ 30 ] It is arguable that what Mr. Land was prepared to do, as a result of his negative animus toward Mr. Doyon, is a live issue. Evidence regarding an unprovoked attack by him on another suspected paedophile carries greater probative value to the issue of provocation than it does to the more generic issue of motive or negative animus. However, in my view, that probative value is reduced from what it might otherwise be as a result of a number of factors.

[ 31 ] First, the alleged attack at the Regional Detention Centre occurred approximately two years after Mr. Doyon’s death. There is very little case law that deals directly with the question of whether bad conduct occurring after the offence in question can be admitted to prove the propensity of the accused at the time of the offence. This issue was raised in R. v. Close (1982), 1982 1914 (ON CA) , 38 O.R. (2d) 453, 68 C.C.C. (2d) 105 (C.A.) in the context of s. 666 (formerly s. 593) of the Criminal Code , R.S.C. 1985, c. C-46, which permits the Crown to adduce evidence of previous convictions of the accused in circumstances where the accused has adduced evidence of his good character. In response to the argument that previous convictions in this context must be referring to convictions registered prior to the offence for which the accused was being tried, Brooke J.A. stated at para. 17:

... in determining the scope of the evidence that can be adduced under this section, while one must have regard to its precise wording, one must also regard the issue to which the evidence is said to be relevant. That issue is the character or disposition of the accused at the time of the commission of the offence for which he is being tried. To establish his good character or disposition, the accused may lead evidence of his general reputation at that time. If the fact of conviction of any offence is evidence to answer the accused’s case as to his disposition, then no doubt the section refers only to convictions previous to the time of the commission of the offence for which he is being tried. However, it seems logical to me that, if the purpose of leading evidence of a previous conviction is to establish the fact of specific criminal conduct at or near to the time of the commission of the offence for which he is being tried, then such previous convictions may include a conviction no matter when registered provided it relates to an offence which is so closely related in time to the offence for which he is being tried as to show his disposition at that time.

Applying similar principles to the circumstances of this case, in my view, an assault that occurred in March 2011 cannot be said to be so closely related in time to the assault on Mr. Doyon in May 2009 to show Mr. Land’s disposition at that time.

[ 32 ] Second, during the two-year period between the two events, Mr. Land has been incarcerated at the Regional Detention Centre. The living conditions at the Centre have been the subject of judicial commentary. Overcrowding, violence, and other dehumanizing conditions have been present at that institution and, one would assume, may have had a psychological impact on Mr. Land.

[ 33 ] Third, Mr. Land knows that, regardless of the outcome of this trial, he will be facing a significant sentence – either for second degree murder or for manslaughter. It is possible that one’s assessment of the jeopardy one is facing as a result of one’s actions, when one is already incarcerated for a lengthy period, could be quite different from how one would reason if living in the community.

[ 34 ] Fourth, according to Mr. Land, the man he attacked in the Regional Detention Centre had been talking about his abuse of four children. Mr. Land had warned him to get moved to another range. The attack occurred when that did not happen. All of this is to say that the two events, although ostensibly similar, have significant differences when considered more closely.

[ 35 ] As well, and in any event, the assault at the Regional Detention Centre does not really help to parse out what factors may have been paramount in leading Mr. Land to do what he did to Mr. Doyon. The underlying facts that led Dr. Gojer to postulate that post-traumatic stress disorder and underlying brain damage may have played a role in Mr. Land’s assault on Mr. Doyon would also have been present at the time of the assault at the Regional Detention Centre, since both diagnoses are based on events that occurred when Mr. Land was a child. So again, the probative value of the assault at the institution is not as high as may be thought at first blush. The only other factor identified by Dr. Gojer that may not have been present at the time of the Regional Detention Centre assault was intoxication.

[ 36 ] I consider the moral prejudice inherent in the introduction of evidence relating to the assault at the Regional Detention Centre to be high and the reasoning prejudice to be moderate.

[ 37 ] There is no question that the videotape of the assault at the Regional Detention Centre is highly inflammatory and prejudicial to Mr. Land. The risk is extremely high that, after seeing this video, the jury would conclude that Mr. Land is a bad and dangerous man who must be guilty of murdering Mr. Doyon since he seemed to act in the video in a calculating and unprovoked fashion. The prejudicial effect of this video is far greater than its true probative value in assisting the jury to assess Mr. Land’s mental state two years earlier when Mr. Doyon was killed, and to decide whether the Crown has proven that Mr. Land was not provoked at that time. The jury will have to consider the specific circumstances surrounding the killing of Mr. Doyon to determine whether it is satisfied beyond a reasonable doubt that provocation did not occur. It would be very easy for the jury to fall into the mistake of simply concluding that, since on another occasion Mr. Land viciously assaulted someone he understood was a paedophile, without provocation, he must have done the same thing when he assaulted Mr. Doyon, when, in fact, what the jury must do is analyze carefully the evidence regarding provocation relating specifically to the incident on May 4, 2009.

[ 38 ] Other methods of proving the incident at the Regional Detention Centre, such as through the evidence of correctional officers, through cross-examination of Mr. Land, or through cross-examination of Dr. Gojer would reduce the risk of the jury being inflamed through evidence of this incident. However, a significant risk still exists that this evidence will divert the jury’s attention away from the evidence relating to the events of May 4, 2009 and make the jurors less careful in their assessment of it. This risk is heightened because of the amount of evidence the jury has already heard, and will hear, concerning past incidences of violence on the part of Mr. Land, because of the significant differences in the circumstances in which the two assaults occurred, and because the assault at the institution is the most recent one. One cannot forget that the jury has already poured over all of the crime scene photographs with Mr. Doyon’s body, blood spatter on the walls, and a pool of blood on the floor. They have studied the autopsy photographs and have been walked through each of the 83 injuries and 4 stab wounds. The forensic evidence was that the majority of the injuries were likely caused by the hammer. It is not in dispute that Mr. Land wielded the hammer. The danger already exists that the sheer violence of the attack on Mr. Doyon may result in jurors having difficulty seeing beyond that and critically assessing all of the evidence that might raise a reasonable doubt about Mr. Land’s mental state at the time and whether he had been provoked.

[ 39 ] There is the further consideration of how Mr. Land could respond to evidence regarding the assault at the Regional Detention Centre without there being a mini-trial within the larger trial. Not only would this distract the jury from the charge at hand, but it also raises questions about the impact this could ultimately have on Mr. Land’s ability to defend the pending charges arising out of the incident at the institution.

[ 40 ] In conclusion, the Crown has not persuaded me on a balance of probabilities that the probative value of this evidence in regard to the issue of Mr. Land’s mental state at the time of Mr. Doyon’s killing and the issue of provocation outweighs its prejudicial effect.

Analysis Regarding Admissibility of Evidence for Purpose of Cross-examining Dr. Gojer

[ 41 ] In his report, Dr. Gojer lists information he received from Mr. Land which, if accurate, would be relevant to Mr. Land’s mental state at the time Mr. Doyon was killed. In that list, he does not specifically mention his assault of a man he considered a paedophile at the Regional Detention Centre. However, in Dr. Gojer’s notes from his interviews with Mr. Land, there is the following reference to this incident:

I get very angry when I hear of men abusing children and this brings back my abuse. In the last year talking about my abuse has made it come back more often. I try not to think about it but it comes back once a week. In the past when incarcerated with sex offenders I get very angry and have had fights with them. On this incarceration there was a man on my range who had sexually abused 4 children. He was talking about it. It made me very angry. I told him to leave the range. He could have told the guards to put him on another range. The guards put him back on the range and I said no one cares. I went up to him and hit him several times. All over his body, about 15 times. I was charged for that. I was beaten by the guards. At no time did I think I was going to kill him. I have stopped others from sexually abusing children. If there are family friends or relatives going to a female’s child’s room, I would run at them and swing at them to get them away from the kids. I was a kid then. As an adult I have seen people do things to females in the park, I would run at them swinging. For the guy on the range, I must have felt that I had to punish him. Can’t say for sure.

[ 42 ] Dr. Gojer provided the following opinion based on his interviews with Mr. Land, information he received from third parties, the police synopsis, transcripts of all police interviews with Mr. Land and some other witnesses (not Carl St-Cyr), Mr. Land’s records at the Children’s Aid Society, and the psychological testing done on Mr. Land:

From the above information it appears that at the time of the alleged offense, Mr. Land reacted to a threatening action on the part of the alleged victim and attacked him believing his life was in danger. His attack went beyond what was needed to prevent the alleged victim from harming him. His actions were likely influenced by preexisting post-traumatic stress disorder symptoms, anger towards child molesters, the presence of alcohol that can have an effect in impairing judgment, act as a disinhibitor to impulse control and emotional regulation and again disinhibited behavior secondary to underlying brain damage.

All the above factors alone or in concert can rob an individual of weighing the options available to him, weigh the pros and cons of his intended actions, to plan or deliberate, or to foresee or measure the consequences of his actions.

[ 43 ] The Crown wants to explore what weight Dr. Gojer assigned to the unprovoked assault at the Regional Detection Centre in an effort to get him to acknowledge that likely Mr. Land’s anger towards child molesters was the key factor leading to his killing of Mr. Doyon.

[ 44 ] The Crown points to the case of R. v. Kerr , 2000 BCCA 209 , 32 C.R. (5th) 359 which bears a canny resemblance to this case. Kerr appealed his conviction for second degree murder of a man whom he believed had made sexual overtones to Kerr’s son. At trial, Kerr relied on the defence of provocation and offered a guilty plea of manslaughter, which the Crown refused. A psychiatrist, who had interviewed Kerr and had considered both his criminal record and other discreditable conduct, such as assaults on paedophiles during an earlier period of incarceration, provided an opinion as to Kerr’s mental state at the time of the killing. The trial judge had ruled that Kerr, himself, could not be cross-examined on the same aspects of his criminal history because the evidence would have been highly prejudicial. One ground of appeal was that the trial judge erred in allowing cross-examination of the psychiatrist on Kerr’s complete criminal history and the other incidents of discreditable conduct.

[ 45 ] In the Kerr case, it was noted that, at several points during his testimony, the psychiatrist had said that he relied to some extent upon the criminal record of Mr. Kerr in forming his opinion. The psychiatrist’s opinion was that, at the time of the killing, Mr. Kerr was in a dissociative state and that such persons do not usually appreciate the moral consequences of their actions. The psychiatrist acknowledged that his opinion depended on the truthfulness of the account given to him by Mr. Kerr.

[ 46 ] The British Columbia Court of Appeal dismissed the appeal and, at para. 33, relied in part on the following excerpt from R. v. Abbey , 1982 25 (SCC) , [1982] 2 S.C.R. 24 at 46:

While it is not questioned that medical experts are entitled to take into consideration all possible information in forming their opinions, this in no way removes from the party tendering such evidence the obligation of establishing, through properly admissible evidence, the factual basis on which such opinions are based. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist.

[ 47 ] The Court of Appeal went on to state: “... it is equally important that the party challenging an expert’s opinion evidence must be free to refer the witness to proven or provable facts in order to ascertain if they alter the confidence the witness has in his opinion.” I accept this; however, it is not an absolute proposition. The evidence adduced through cross-examination of Dr. Gojer in this case must still be considered through the prism of the probative value/prejudicial effect comparison undertaken above.

[ 48 ] The starting point for the balancing act is a consideration of the actual evidence of Dr. Gojer and what the Crown wants to challenge in its regard. Unlike the psychiatrist in Kerr , Dr. Gojer did not provide an opinion as to what Mr. Land’s actual mental state was at the time of Mr. Doyon’s killing. Instead, he limited his opinion to saying that Mr. Land’s mental state at that time likely was influenced by a number of factors, without saying which, if any, factor or factors he considered likely the most significant. He did not say that those factors necessarily had a particular effect on Mr. Land on the night in question. He simply said that all of the factors he identified, either alone or in concert, could rob an individual of the ability to exercise judgment and measure the consequences of his actions. Included in those factors is Mr. Land’s anger towards child molesters. Crown counsel indicated that he wished to refer Dr. Gojer to the assault at the Regional Detention Centre to suggest to him that Mr. Land’s anger towards child molesters was likely the critical factor leading to his attack on Mr. Doyon.

[ 49 ] First, as I have already indicated, it is not in dispute that Mr. Land felt a strong hostility towards child molesters, and this hostility was the motive for his confronting Mr. Doyon on May 4, 2009, just as he had confronted others he knew or suspected of molesting children in the past. Second, to the extent that post-traumatic stress disorder or an underlying brain injury or damage due to alcohol abuse over many years were factors impacting on his mental state, they could have been factors at play both in May 2009 and March 2011. Third, it is hard to imagine how Dr. Gojer could offer an opinion as to which factor played the most significant role either on the night of May 4, 2009 or at the time of the assault on March 31, 2011. Fourth, in regard to the issue of provocation, all Dr. Gojer stated was, based on Mr. Land’s account of the chain of events , it appears that Mr. Land reacted to what he perceived was a threatening action of Mr. Doyon. Dr. Gojer offered no independent opinion on that.

[ 50 ] For these reasons, the probative value of evidence of the assault on March 31, 2011 to challenge Dr. Gojer’s opinion or adduce further evidence helpful to the Crown’s case is minimal. For the reasons provided above, any reference to this event would carry significant prejudice to Mr. Land.

Disposition

[ 51 ] The ruling I provided on the morning of October 25, 2012, before the Defence elected to call evidence, was the following:

• The Crown will not be permitted to adduce evidence specifically in regard to Mr. Land’s assault on another inmate at the Regional Detention Centre on March 31, 2011 – either through the independent evidence of correctional staff at the institution, the surveillance video of the incident, cross-examination of Mr. Land, or cross-examination of Dr. Gojer.

• The Crown will be permitted to cross-examine Mr. Land and Dr. Gojer on statements Mr. Land made to Dr. Gojer regarding his intervening physically when he perceived that individuals were going to molest children or women, his assaulting his brother, Randy, when Randy told him that Randy had sexually assaulted their sister, and his hitting up to 50 different men for assaulting adult females.

• The Crown will also be permitted to cross-examine Mr. Land in a general way as to whether any of the incidents in which he physically assaulted other individuals for molesting children or for being paedophiles had been unprovoked.

• The Crown will also be permitted to cross-examine Dr. Gojer as to whether he realized or understood that Mr. Land has assaulted individuals he perceived to be paedophiles, without provocation.

• Should the situation arise where Mr. Land puts his character in issue, for example, by saying that he has never assaulted someone he thought was a paedophile without first having been provoked by that person, then the Crown can renew its application in regard to the incident at the Regional Detention Centre.

Aitken J.

Released: October 30, 2012

ONTARIO SUPERIOR COURT OF JUSTICE PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE BETWEEN: HER MAJESTY THE QUEEN Crown – and – TOBY LITTLE OTTER LAND Accused MID-trial ruling #4 regarding SIMILAR FACT EVIDENCE Aitken J.

Released: October 30, 2012