COURT FILE NO.: 10-10000739-0000

DATE: 20120123

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.C.

N. Golwalla, for the Crown

M. Czuma, for Mr. M.C.

HEARD: January 16-20, 2012

THORBURN J.

Crown AND DEFENCE ApplicationS TO INTRODUCE Expert TESTIMONY

1. THE NATURE OF THE REQUEST

THE CROWN’S REQUEST TO INTRODUCE EXPERT TESTIMONY

[1] The accused, M.C., is charged with sexual assault, unlawful confinement, sexual touching of a person under fourteen years of age, and two counts of uttering death threats to the Complainant and his family. The accused elected to be tried by judge alone.

[2] The Crown seeks leave to permit Dr. Wolfe to present expert evidence at trial about (1) delayed, incremental and inconsistent disclosure by victims of child sexual abuse; and (2) symptoms of non epileptic seizures (NES), Post Traumatic Stress Disorder (PTSD) and how to explain or understand the seizure-like episode suffered by the child Complainant on April 25, 2009.

[3] Counsel for Mr. M.C. opposes the Crown’s request for the following reasons:

(a) the proposed expert testimony about delayed, incremental and inconsistent disclosure by child victims of sexual abuse is not necessary because there is no expertise required to address this issue;

(b) Dr. Wolfe is not an expert on the issue of NES. Moreover, his evidence concerning NES and their significance is not reliable as there has been very little written in this area and the authors of the study analyzed by Dr. Wolfe acknowledge that it is “premature to posit a causal relationship” between sexual abuse and NES; and

(c) Dr. Wolfe is biased and therefore all of his evidence ought to be excluded.

THE ACCUSED’S REQUEST TO INTRODUCE EXPERT TESTIMONY

[4] Mr. M.C. seeks to introduce testimony from his own expert cognitive psychologist, Dr. Timothy Moore, to give evidence on the following topics:

(a) the effect of delayed or incremental disclosure in sexually abused children,

(b) the effect of suggestion, manipulation, coercion and social pressure on evidence given by children,

(c) the importance of alerting an interviewee of the importance of telling the truth and obtaining an agreement to tell the truth,

(d) whether there is a “constellation of symptoms” found in victims of sexual abuse, and

(e) whether there is a causal relationship between sexual abuse and NES.

[5] Mr. M.C.’s counsel seeks to introduce the evidence of Dr. Moore only if the evidence of Dr. Wolfe is introduced.

[6] The Crown says the evidence of Dr. Moore corroborates the evidence of Dr. Wolfe on the issue of the effect of delayed or incremental disclosure in sexually abused children and the fact that there is no constellation of facts from which one can conclude a person was sexually abused. Thus, while the Crown claims this evidence is not necessary, the Crown does not object to the admission of this testimony.

[7] The Crown objects to Dr. Moore’s testimony about the effect of the type of questions presented to a child witness on the evidence that is given and the importance of telling a child to tell the truth. The Crown submits that the courts have held that assessing credibility and reviewing credibility by examining the context of the discussion is the area of expertise of the courts, and therefore expert testimony is unnecessary.

[8] Finally, the Crown claims that Dr. Moore’s evidence regarding suggestibility as it applies to this Complainant is flawed as he failed to look at the 911 tape, the DVD or the transcripts of the Complainant’s statements to police, and his evidence is therefore highly unreliable.

2. THE LAW

[9] A party who seeks to introduce expert evidence must establish that the evidence should be admitted on a balance of probabilities. If the court determines that an expert should be permitted to testify, the court must also determine the nature and scope of the expert evidence to be admitted. The trial judge may admit part of the testimony, modify the nature or scope of the proposed opinion or edit the language used to frame an opinion. (See R. v. Abbey, 2009 ONCA 624, at para 63.)

[10] The test for the admission of expert opinion evidence is set out by the Supreme Court of Canada in R. v Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 and more recently articulated in R. v. Abbey, supra. When deciding whether to permit an expert to give evidence at trial the court should consider a two-step process. At the first stage, the court should determine whether:

(a) the proposed opinion is relevant to a material issue in the case;

(b) the proposed opinion is relevant to a subject matter that is properly the subject matter of expert opinion;

(c) there are exclusionary rules that preclude the introduction of this evidence; and

(d) the witness is properly qualified to give the opinion evidence.

If this first threshold is met, the court should engage in further analysis to determine whether the probative value of introducing this evidence outweighs its prejudicial effect.

THE FIRST STAGE

I. Is the Opinion Evidence Relevant to a Material Issue?

[11] Evidence is relevant when it tends to increase the likelihood of the existence of a material fact at issue in the proceedings. (See R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 30 O.R. (3d) 161 (C.A.).)

[12] An expert may give testimony to explain that certain kinds of behaviour have been commonly observed in situations similar to that of the witness. That kind of expert evidence may provide a more complete picture when assessing the entirety of the evidence and, in particular, when deciding what inferences or conclusions should be drawn from a witness’ statements. (See R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), at para. 71; R. v. Bernardo (1995), 1995 CanLII 18837 (ON SC), 42 C.R. (4th) 96 (Ont. Ct. (Gen. Div.)); R. v. F. (D.S.) (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at paras. 50-52.)

[13] Evidence concerning the behaviour of a child is admissible even though it indirectly enhances the credibility of the child’s evidence. Moreover, expert evidence may be admitted even if it bears on a factual issue to be decided by the trier of fact. (See Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 CanLII 2784 (ON CA), 9 O.R. (3d) 641 (C.A.).)

[14] The following are some of the factors that should be taken into account in assessing relevance:

(a) To what extent is the opinion founded on proven facts?

(b) Has the theory been tested and generally accepted by the expert community (for example, has the theory been subjected to peer review and publication within the expert community)?

(c) To what extent does the proposed expert opinion evidence support the inference sought to be drawn? And

(d) To what extent does the proposed evidence tend to prove an issue in the proceedings?

(See K.(A.), per Charron J.A., as she then was, at p. 673.)

[15] The theory or technique used by the expert must be reliable and so must the use of that theory or technique by the expert. (D. Paciocco: Taking a “Goudge” out of Bluster and Blarney: an “Evidence-Based Approach” to Expert Testimony, (2009) 13 Can. Crim. L. R., at p.138.)

II. Is the Opinion Evidence Necessary?

[16] To be necessary, expert evidence should provide information "which is likely to be outside the experience and knowledge of a judge or jury” (Dickson J. in R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24). The evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature.

[17] The court must determine whether the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle. (Khan, supra.)

III. Does the Expert Evidence Conflict with a Rule of Evidence that Would Exclude the Proposed Testimony?

[18] The expert evidence must not run afoul of an exclusionary rule of evidence apart from the opinion rule itself. For example, where the sole purpose of the proposed opinion evidence was to put in question the character of the accused, it was excluded as the accused had not put his character in issue and there is a rule of evidence that prevents the Crown from presenting evidence of the accused's character unless he has placed his character in issue. (See R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345.)

IV. Does the Expert have the Required Expertise in the Field?

[19] The court must be satisfied that the subject-matter of the expert’s expertise is a branch of study concerned with a connected body of demonstrated truths or observed facts systematically classified and more or less connected together by a common hypothesis operating under general laws. (R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 103, per Finlayson J.A.)

[20] Thereafter, the court must determine whether the complexity of the proposed expert evidence creates a danger that it will be misused, will distort the fact-finding process, or will confuse the trier of fact.

[21] Where the court is satisfied that the witness has expertise in the subject matter at issue, the admissibility of expert evidence does not depend on how the expertise was acquired, although that may affect the weight to be given to the evidence. (R. v. N.O., 2009 ABCA 75, citing Sopinka, Lederman and Bryant, The Law of Evidence of Canada 2nd Ed. (Markham, Ont., LexisNexis: 1999), at pp. 536-537.)

[22] Some have argued that bias should be addressed under the rubric of whether a witness possesses the necessary qualifications to give opinion evidence based on impartiality, independence and lack of bias. (R. v. L.K., 2011 ONSC 2562, at para. 10.)

[23] Bias has been defined as "a leaning, inclination, bent or predisposition towards one side or another or a particular result" and "a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction". (R. v. Bertram, [1989] O.J. No. 2123 (H. Ct. J.), per Watt J.).

[24] Even where there is no dispute as to the expertise of a witness, a perceived bias on the part of a proposed expert witness may require the court to exclude the witness’ evidence. (R. v. Docherty, 2010 ONSC 3628). Bias or partiality is not explicitly identified as a pre-condition for qualification as an expert witness. Some have held that the decision whether to exclude expert testimony on the basis of bias is a matter of “residual discretion” to be determined at the second stage of the analysis. (R. v. L.K., supra, at paragraph 9.)

THE SECOND STAGE

[25] In order to admit relevant evidence, the court must determine that the probative value of the expert opinion outweighs its prejudicial effect.

[26] This involves a consideration of undue consumption of time, prejudice and confusion to the trier of fact which may unduly protract and complicate proceedings. (See R. v. J.J., (2000) SCC 51, at para. 47; R. v. Abbey, supra, at para. 90.) The most important risk is the danger that a jury will be unable to make an effective and critical assessment of the evidence. There is a risk that a jury faced with a well-presented, firm opinion may abdicate its fact-finding role on the understandable assumption that a person labelled an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury. (R. v. J. J., supra, at paras. 25 and 47.)

[27] There is also a risk that inordinate time may be spent dealing with issues that do little to assist the jury in their review and assessment of the facts (See R. v. J.J., supra, at para. 47; R. v. Abbey, 2009 ONCA 624, at para. 90).

3. THE FACTS IN THIS CASE

[28] The voir dire to determine whether either or both of these experts could testify at trial was heard at the commencement of trial. Two lay witnesses, Karen Clarke (a Children’s Aid Society worker) and Officer Li (a police officer), testified on the voir dire followed by the two experts. Both experts were cross-examined at length. The parties requested that all of the testimony on the voir dire be considered evidence at trial to the extent it is determined to be admissible.

[29] The Complainant lived with his mother and had periodic visits with his father.

[30] On February 14, 2008, when the Complainant was eight years old, he told his mother that the accused, M.C. had tried to fondle him the previous summer. The accused is the Complainant’s uncle. The Complainant also claimed he had been physically assaulted by his father.

[31] On March 3, 2008, at the request of the Complainant’s mother, Karen Clarke, a Children’s Aid Society worker came to the Complainant’s home. The Complainant told her that his uncle came into the bathroom at his grandparents’ house while he was in the bathroom, touched his penis and “balls”, and started squeezing them.

[32] On March 6, 2008, the Complainant gave a statement to Officer Li in the presence of Karen Clarke. During that interview the Complainant said his uncle had done bad things and again said that his uncle had tried to grab his genitals while he was using the bathroom at his paternal grandparents’ home.

[33] In December 2008, the Complainant began a course of psychotherapy with a social worker, Christina Domingues. On March 25, 2009, the Complainant told Ms. Domingues that there had been anal penetration by his uncle during the same event where he had previously described genital touching occurring. On April 8, 2009, the Complainant told Ms. Domingues that he had not disclosed the anal penetration earlier because he was worried that his mother would be angry with him.

[34] The Complainant was interviewed by the police on April 24, 2009, as a result of this new information. He told Officer Andrea Martin that his uncle had penetrated his anus with his penis.

[35] On April 26, 2009, the Complainant had an attack during which he cried inconsolably and began writhing on the floor. He held his penis and cried that “it hurts” and referred to his uncle. Police and EMS attended the home and witnessed the attack. The Complainant was unaware of what had happened during the attack.

[36] On April 27, 2009, the Complainant boarded a bus with his maternal grandmother. Some paternal relatives boarded the bus and sat near him. The Complainant ran ahead of his grandmother when they left the bus and said he was afraid when he saw his paternal relatives.

4. THE EXPERTS’ QUALIFICATIONS AND INFORMATION PROVIDED TO THE EXPERTS

THE CROWN’S PROPOSED EXPERT

[37] Dr. Wolfe is a doctor of clinical psychology. He holds a Chair in children’s mental health at the Centre for Addiction & Mental Health (CAMH), he is a professor of psychology at the University of Toronto, and he is the Editor-in-Chief of Child Abuse and Neglect: The International Journal. He has taught in the areas of child psychopathology and family violence. His research and clinical interests include a focus on abuse, violence, and child sexual abuse. He was Chief Psychologist for the London Children’s Aid Society from 1981 to 1995. He has testified in 38 trials on the issue of child abuse, child welfare and the effects of family violence on children and was asked by the United Nations and the International Society for Traumatic Stress Studies to Chair an international committee on Child Abuse in Peacetime. He has written on the subject of child sexual abuse and has testified for both the Crown and defence in cases involving child sexual abuse.

[38] Dr. Wolfe was provided with a DVD and transcripts of the Complainant’s two statements to police, a CD of a 911 call from the Complainant’s mother on the night of April 26, 2009, notes of the accompanying officer at the scene, Detective Constable Li’s notes about the incident on April 27, 2009, when the Complainant boarded a bus with his grandmother, and a synopsis of the allegations prepared by police.

[39] He was asked to assume facts set out in the Crown’s letter to him, that the Complainant was about seven at the time of the alleged sexual abuse by his uncle, eight years old when he was first interviewed, nine years old at the time of a second interview and suffered a “seizure-like event” the same year.

THE ACCUSED’S PROPOSED EXPERT

[40] Dr. Moore is Chair of the Department of Psychology at Glendon College, York University. He is a doctor of cognitive psychology. He has authored or co-authored a number of publications on the subject of cognition and learning, language, family violence and police interrogations. Dr. Moore has testified in approximately 30 trials.

[41] Dr. Moore was provided with Dr. Wolfe’s opinion, the social worker, Christina Domingues’ letter of August 11, 20011, notes of Constable Martin, hospital records for the Complainant, transcripts of the Complainant’s statements to police on March 6, 2008 and April 24, 2009, extracts from the Preliminary hearing transcripts as provided by counsel for Mr. M.C. and notes of Ms. Clarke dated March 3, 2008. He was not provided with any audio or audio visual statements made by the Complainant or the 911 call to police.

5. THE EXPERT OPINIONS

DR. WOLFE’S OPINION

[42] In his report, Dr. Wolfe stated that, in his opinion,

There can be very many variations, combinations, and changes in situations involving the disclosure status of child victims.... The current literature suggests that children are highly avoidant of discussing their abuse experiences in forensic settings and may deny that sexual acts have occurred.... In a recent study ... involving 27 sexually abused children’s reports, the second and third interviews generated twice as many (new) sexual details as the first interview. Children also produced more denials and avoidances at the first interview compared to subsequent interviews. Thus ... two or three interviews may be needed to enable these children to give complete and informative reports.

[43] In commenting on the seizure-like event, Dr. Wolfe expressed the opinion that,

There have been reports in the clinical and scientific literature of a connection between child sexual abuse and non-epileptic seizures for over 30 years. Most of the research in this area involves adults....

[44] In quoting a 2006 article by two authors who referred to 34 studies, Dr. Wolfe stated that,

The meta-analysis ... determined that the odds of having a history of child sexual abuse are almost 3 times greater among adults with NES. The authors caution that definitive conclusions regarding this relationship cannot be made due to research limitations....

On the basis of this literature and the description of the Complainant’s behaviour, it is likely that his symptoms match that of a non-epileptic seizure. Moreover, his NES behaviour is likely a function of the severe trauma that he experienced in the course of the abuse (as described in the materials presented to me.).... There is also the possibility that his behaviour would meet the diagnostic criteria for post traumatic stress disorder. That is, his emotional arousal and intrusive thoughts could be symptoms of PTSD. This diagnosis would need to be carefully considered prior to any therapeutic intervention.

[45] In his testimony, Dr. Wolfe opined that there are no specific symptoms of sexual abuse. However, sexual abuse is often accompanied by anxiety, fear and avoidance. Post traumatic stress is a condition often accompanied by the following symptoms: emotional numbness, arousal, and impairment in day to day functions. It is possible that the Complainant suffers from post traumatic stress disorder, and a seizure can be a symptom of post traumatic stress disorder. A NES is a traumatic reaction to an event. The event could be physical abuse, sexual abuse or something else. Finally Dr. Wolfe testified that he erred when he stated in his report that the Complainant’s behaviour was likely a function of severe trauma experienced in the course of the abuse (as described in the materials presented to him). Instead, he stated that the behaviour was consistent with severe trauma experienced in the course of abuse.

DR. MOORE’S OPINION

[46] Dr. Moore stated in his report that children are “vulnerable to suggestion, manipulation, coercion and social pressure”. They are more likely to tell the truth when they are reminded of the importance of telling the truth. He stated that there is no package or constellation of symptoms of sexual abuse.

[47] He agreed with Dr. Wolfe that delayed and or incremental disclosure is not unusual in sexually abused children. He stated that the incremental disclosure given by the Complainant “is consistent with delayed disclosure that has been documented in the literature for some children for whom abuse was independently substantiated, however it is also consistent with unreliable statements that can sometimes be elicited from non-abused children through the use of repeated and suggestive questioning.”

[48] Finally, Dr. Moore stated that sexual abuse has no unique status in the etiology of NES, compared to any other type of trauma. NES can occur in the absence of sexual abuse, and it is premature to posit a causal relationship between sexual abuse and NES.

6. ANALYSIS OF THE ISSUES AND CONCLUSION

[49] The parties agree that the information is logically relevant and that Dr. Wolfe is qualified to give opinion evidence on the subject of delayed, incremental or inconsistent disclosure.

[50] The issues I must determine are as follows:

(a) Did Dr. Wolfe exhibit bias such that he is unqualified to provide opinion evidence in this proceeding?

(b) Is expert opinion necessary to understand the effect of delayed, incremental and inconsistent disclosure on child victims of trauma, including child abuse?

(c) Does Dr. Wolfe have the qualifications to opine on the scientific or psychological basis for the seizure-like event that took place on April 25 to 26, 2009?

(d) Was Dr. Moore biased in the opinion that he gave?

(e) Is Dr. Moore’s testimony regarding the effect of different techniques of questioning the proper subject of expert testimony or is this evidence within the expertise of the court itself? and

(f) Is Dr. Moore qualified to proffer an opinion regarding the effect of delayed, incremental and or inconsistent testimony given by children and or the relationship if any between NES or other trauma and sexual abuse in children?

ANALYSIS OF ISSUES CONCERNING DR. WOLFE

Bias

[51] Mr. Czuma bases his allegation of bias on Dr. Wolfe’s written comment that the Complainant’s “NES behaviour is likely a function of the severe trauma that he experienced in the course of the abuse (as described in the materials presented to me.).” Dr. Wolfe corrected himself during the course of his testimony to say that he should have used the words “consistent with a severe trauma” instead of “is likely a function of the severe trauma that he experienced in the course of the abuse”. I note that Dr. Wolfe was asked to “assume the facts” as set out in the Crown letter of February 23rd.

[52] I do not believe Dr. Wolfe’s testimony was biased. He gave a balanced articulation of the literature on the subjects he was asked to opine on. In applying the facts he was given to the symptoms of NES, he gave a conclusory statement in his report about the likely cause of the Complainant’s behaviour. In the voir dire, Dr. Wolfe conceded that his conclusion was overstated, and that he meant that the Complainant’s symptoms were consistent with the trauma of sexual abuse. This does not demonstrate bias.

[53] If an expert makes conclusory statements, those statements may be excluded where the expert is able to express the opinion in less conclusory terms without detracting from its accuracy. (Khan, supra.)

[54] The conclusory statement in Dr. Wolfe’s report that the Complainant’s “NES behaviour is likely a function of the severe trauma that he experienced in the course of the abuse (as described in the materials presented to me)” will therefore be excluded from the evidence to be admitted at trial.

Necessity

[55] The parties agree that the evidence, if admissible, is logically relevant to the issue raised in this trial.

[56] I accept the Crown’s submission that expert opinion is necessary to understand the research on delayed, incremental and inconsistent disclosure as it relates to child victims of sexual abuse. I do not accept Defence counsel’s submission that no adverse inference can be drawn from delayed, incremental and inconsistent disclosure by child victims of abuse. To preclude the court from drawing an adverse inference in all cases where inconsistent testimony was given by the Complainant would make it difficult, if not impossible, to question the Complainant’s credibility.

[57] Dr. Wolfe is therefore permitted to discuss the literature regarding the many variations, combinations and changes involving disclosure by child victims of sexual abuse and the current literature regarding the behaviour patterns.

[58] Finally, Dr. Wolfe is permitted to articulate the symptoms he was told were exhibited by the Complainant on the evening of his seizure-like event, and compare them to the symptoms of those who suffer non-epileptic seizures and the symptoms associated with post traumatic stress. He is also permitted to discuss the research regarding the alleged statistical correlation between child sexual abuse and non-epileptic seizures and post traumatic stress disorder.

[59] Moreover, the examination of the psychological data and case studies referred to in the article D. Sharpe & C. Faye, “Non-epileptic seizures and child sexual abuse: A critical review of the literature” (2006) 26 Clinical Psychology Review 1020.to explain the Complainant’s seizure-like episodes require expert understanding and an ability to analyze and fully understand the underlying data and methodology behind the 34 studies examined.

Expertise

[60] Defence counsel argued that Dr. Wolfe is not qualified to provide expert evidence, since his testimony was predicated upon one article and not upon clinical research conducted personally. This assumes that Dr. Wolfe must have personal experience in the field of child psychology in order to testify. He does not need personal experience. As stated above, where the court is satisfied that the witness has expertise in the subject matter at issue, the admissibility of expert evidence does not depend on how the expertise was acquired: R. v. N.O., supra. The fact that Dr. Wolfe does not have personal experience is relevant to the weight that I assign to his evidence. I note, however, that the Sharpe and Faye article referred to and relied upon by Dr. Wolfe is a peer reviewed article which enhances its reliability.

[61] Dr. Wolfe is a child psychologist with a specific expertise in trauma and child abuse and can therefore opine on the effect of delayed, incremental and inconsistent disclosure by child victims of trauma including child abuse, and analyze the findings in the key publications he reviewed and considered.

Cost Benefit Analysis

[62] Dr. Wolfe has already given all of the testimony that would be adduced at trial. Both parties have agreed that the admissible portions of both experts’ evidence will be imported into the trial. As such, there is no time lost. Mr. Czuma does not argue that this will render the proceeding unduly complex: he argues that there is no need for expert opinion at all in order to understand the report. I disagree. For these reasons, I find that the probative value of Dr. Wolfe’s evidence outweighs any prejudicial effect, and the Crown has satisfied me on a balance of probabilities that the expert evidence tendered by Dr. Wolfe should be admitted.

ANALYSIS OF ISSUES CONCERNING DR. MOORE

Bias

[63] I do not accept the Crown submission that Dr. Moore is biased. Although he did not review all of the materials available at the time his report was written, there is no suggestion he tailored his evidence or that he chose to be selective about materials he reviewed.

Necessity

[64] I find that Dr. Moore’s evidence on the effect of leading questions, refreshing a witness’s memory, and the need for the child to understand the duty to tell the truth is unnecessary. These are subject areas judges deal with regularly. Thus, this proposed evidence would be of no additional assistance to the court. (See R. v. T.C. (2004), 2004 CanLII 33007 (ON CA), 72 O.R. (3d) 623 (C.A.), at para 33.) For these reasons, Dr. Moore is not permitted to give expert testimony on the issue of the effect of the manner of questioning and the importance to tell the truth.

Expertise

[65] However, in view of his expertise as a doctor of psychology with expertise is assessing reliability and investigative interviews, Dr. Moore is permitted to provide his opinion on the effect of delayed or incremental disclosure in sexually abused children. He has reviewed the Sharpe and Faye articled analyzed by Dr. Wolfe. He may therefore also give evidence to respond to Dr. Wolfe’s testimony regarding the common symptoms, if any, of child sexual abuse, and the relationship if any, between child sexual abuse and trauma.

Cost Benefit Analysis

[66] Dr. Moore has already given all of the testimony that would be adduced at trial. The admissible portions of both experts’ evidence will be imported into the trial. As such, there is no time lost. I find that the probative value of Dr. Moore’s evidence on the issues I have allowed outweighs any prejudicial effect.

7. SUMMARY OF CONCLUSIONS

[67] For the above reasons, the following testimony is permitted to be introduced at trial:

[68] Dr. Wolfe may give his opinion on

• delayed, incremental and inconsistent disclosure as it relates to child victims of sexual abuse and the variations, combinations and changes involving disclosure by child victims of sexual abuse and the current literature regarding these behaviour patterns,

• the symptoms he was told were exhibited by the Complainant on the evening of his seizure-like event, and compare them to the symptoms of those who suffer non-epileptic seizures and the symptoms associated with post traumatic stress, and

• the research regarding the alleged statistical correlation between child sexual abuse and non-epileptic seizures and post traumatic stress disorder.

[69] Dr. Moore may provide his opinion on:

• delayed, incremental and inconsistent disclosure as it relates to child victims of sexual abuse and the variations, combinations and changes involving disclosure by child victims of sexual abuse and the current literature regarding these behaviour patterns,

• to respond to Dr. Wolfe’s testimony regarding the symptoms he was told were exhibited by the Complainant on the evening of his seizure-like event, and compare them to the symptoms of those who suffer non-epileptic seizures and the symptoms associated with post traumatic stress, and

• the research regarding the alleged statistical correlation between child sexual abuse and non-epileptic seizures and post traumatic stress disorder.

[70] He is not permitted to opine on the effect of leading questions, refreshing a witness’s memory, and the need for the child to understand the duty to tell the truth as this is not necessary in view of the court’s role and responsibility to assess credibility.

[71] I am deciding only that this evidence can be considered and weighed by me along with other evidence to be adduced at trial. I am not determining what weight if any, should be accorded this evidence.

Thorburn J.

Released: January 23, 2012