COURT FILE NO.: 11-0298
DATE: 2013-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Applicant
– and –
John Craig Cameron
Respondent
Jason Nicol, for the Crown
Lawrence Greenspon, for the Respondent
HEARD: February 4, 2013 (Pembroke)
REASONS FOR decision on Mohan Application
PARFETT J.
[1] The Crown is seeking to have Dr. Derek Pallandi qualified as an expert to give opinion evidence in the field of forensic psychiatry and, in particular, on the subject-matter of automatism.
Background
[2] The Respondent is charged with first-degree murder contrary to s. 235(1) of the Criminal Code of Canada in relation to the shooting death of Michelle Cameron on March 15, 2011. Michelle Cameron was the Respondent’s daughter-in-law, and at the time of the shooting, she was separated from the Respondent’s son.
[3] The Respondent is alleged to have driven from his home in Parry Sound, Ontario to Ms. Cameron’s home in Deep River, where he shot her three times. He then drove back to Parry Sound and told people at his workplace that this was his last day of work. Immediately after, he attended at the West Parry Sound OPP detachment where he turned himself in and provided a full confession to the police.
[4] The Respondent is prepared to admit the entirety of the Crown’s case, with the exception of his mental state at the time of the shooting. The Respondent contends that he was not criminally responsible for this crime.
[5] Defence counsel has retained a psychiatrist, Dr. Kunjukrishnan who will testify that, in his opinion, the Respondent was in a state of insane automatism at the time of committing the offence and therefore was not criminally responsible. Consequently, the Crown has also retained a psychiatrist, Dr. Derek Pallani. Dr. Pallandi has prepared a report in which he contests Dr. Kunjukrishnan’s conclusion.
Analysis
[6] The starting point for any analysis regarding expert evidence is that it is presumptively inadmissible because it involves the provision of opinion evidence.
[7] However, the Supreme Court of Canada in R. v. Mohan[2] has developed four criteria that must be met before opinion evidence offered by an expert ought to be received by the court. Those criteria are:
• Relevance;
• Necessity in assisting the trier of fact;
• Absence of an exclusionary rule; and
• A properly qualified expert.
[8] Where the issue of expert evidence is raised, the onus is on the party attempting to elicit the evidence to establish on a balance of probabilities that these four criteria have been met.[3]
Relevance and necessity
[9] Relevance in this context refers to legal relevance. At the outset, the basic principle is that all relevant evidence is admissible if it is not excluded by a particular rule.[4] As noted in R. v. Luciano[5], an item of evidence is relevant “if it renders the fact it seeks to establish slightly more or less probable than it (the fact) would be without the evidence.”[6] The Court of Appeal goes on to say in the same case that the evidence need not prove conclusively the proposition of fact for which it is offered, or even make that proposition of fact more probable than not. What is essential is that the item of evidence must reasonably show, by the application of everyday experience and common sense that the fact is slightly more probable with the evidence than it would be without it.[7]
[10] However, where the evidence in question is expert evidence, a further inquiry must be made. Expert evidence that is otherwise relevant may {be} excluded if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value, or if it has the potential to mislead the jury and thereby distort the fact-finding process.[8]
[11] Necessity in this context does not refer to necessary{necessity} to the Crown’s case, but instead refers to necessity because it is required to assist the trier of fact. The evidence must be more than merely helpful, but the court must avoid too strict a standard.[9] In R. v. Abbey[10], the Supreme Court of Canada described an expert’s function as follows:
[T]o provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. “An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusion without help, then the opinion of the expert is unnecessary”.[11]
[12] As with relevance, the evidence must be assessed for its potential to distort the fact‑finding process. On the other hand, proper jury instructions can often reduce or eliminate the potential that the jury will be overwhelmed by the expert evidence.[12]
[13] Defence argues that Dr. Pallandi’s evidence cannot meet a basic threshold of reliability and therefore its prejudicial value outweighs its probative effect. He contends that in order for expert evidence to have some reliability, it must be based on recognized standards or approaches. In R. v. A.K[13]., the court noted that:
In other cases, the theory or the technique should to be advanced may form part of a recognized field of expertise such as psychiatry or psychology and, for that reason, it may be more difficult to readily recognize that the theory or technique is novel within its field.[14]
[14] In R. v. Mohan, the court was dealing with a novel technique – psychosexual profiles – within the field of psychiatry. The court indicated as follows:
The trial judge should consider the opinion of the expert and whether the expert is merely expressing a personal opinion or whether the behavioural profile which the expert is putting forward is in common use as a reliable indicator of membership in a distinctive group. Put another way: Has the scientific community developed a standard profile for the offender who commits this type of crime? An affirmative finding on this basis will satisfy the criteria of relevance and necessity. Not only will the expert evidence tend to prove a fact in issue but it will also provide the trier of fact with assistance that is needed. Such evidence will have passed the threshold test of reliability which will generally ensure that the trier of fact does not give it more weight than it deserves.
[15] Defence states that Dr. Pallandi conceded that there is no generally accepted profile of an offender who acted in an automatic state. Despite this, Dr. Pallandi used a list of indicia that he indicated tended to demonstrate that Mr. Cameron was not acting in an automatic state. In short, Defence argues that Dr. Pallandi diagnosed Mr. Cameron using a profile when such a profile does not yet exist in the profession. As such, it is Defence’s view that Dr. Pallandi’s opinion does not meet the threshold test of reliability.
[16] Crown counsel states that Dr. Pallandi has not used a methodology that is novel or subject to criticism. It is apparent from his report that Dr. Pallandi used a generally accepted diagnostic approach, but could not find any evidence that Mr. Cameron either had a history of dissociation, memory gaps or fugue states or was in a dissociative state at the time of committing the offence. Dr. Pallandi testified that the existence of a dissociative state is the primary foundation for a defence of automatism. In his report, Dr. Pallandi does make reference to the facts of the case and he does conclude that “[Mr. Cameron’s] behaviour stands in opposition to the typically reflexive, brief and purposeless behaviour that is more typical of automatism.”[15] It is this statement that Defence takes issue with and argues shows that Dr. Pallandi is using a profile that does not exist for automatism.
[17] It is unfortunate that Dr. Pallandi chose to phrase his findings in this fashion given the fact that psychiatry has yet to determine whether there is a profile for automatism. However, I cannot find that Dr. Pallandi was using a novel or unsupported methodology. Both in the report and in his testimony, Dr. Pallandi made it clear that the issue was whether there was evidence that Mr. Cameron had suffered from a dissociative state. In my view, this evidence does meet the threshold test for reliability.
A properly qualified expert
[18] The third criterion is conceded by Defence, so the only remaining criterion is that of a properly qualified expert. The starting point for the analysis of whether a particular witness who is being proffered as an expert is, in fact, an expert in the area in which it is proposed s/he will give evidence is that the witness “possess special knowledge and experience going beyond that of the trier of fact.”[16] Furthermore, it has been held that deficiencies in the expertise go to weight, not admissibility.[17] Finally, it is accepted that:
The admissibility of [expert] evidence does not depend upon the means by which that skill was acquired. As long as the court is satisfied that the witness is sufficiently experienced in the subject-matter at issue, the court will not be concerned with whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence.[18]
[19] Defence initially argued that while Dr. Pallandi is eminently qualified as a forensic psychiatrist, that he is not adequately qualified to offer an opinion in the specific area of automatism. Defence based its argument on the fact that Dr. Pallandi has never identified automatism as an explanation for a patient’s behaviour. Subsequently, Defence changed its position and argued that Dr. Pallandi should not be qualified as an expert at all. This latter position was based on several decisions that considered evidence offered by Dr. Pallandi and rejected it.
[20] The four cases that Defence relied on are as follows:
R. v. Jacobson[19]
R. v. Burlacoff[20]
R. v. Singh[21]
R. v. Krivicic[22]
[21] In the Jacobson case there was a co-accused and his defence counsel was seeking to call Dr. Pallandi as a witness essentially to impugn Jacobson’s credibility as Dr. Pallandi had written a report suggesting that Jacobson was faking a mental illness. The trial judge decided not to permit counsel to call Dr. Pallandi on the basis that it “would create a distracting issue for the jury which in [his] view [was] not worth it in terms of any probative value”.[23]
[22] R. v. Burlacoff is a case involving a doctor charged with OHIP fraud. The defence presented evidence that Burlacoff was non‑criminally responsible. The Crown called Dr. Pallandi to refute that position. Ultimately, the court rejected his evidence[24]. This rejection was based on a number of factors.
[23] Firstly, the court found that Dr. Pallandi’s reasons for determining that Burlacoff was not delusional was based on a number of incorrect assumptions and on evidence not proven at trial.[25]
[24] Secondly, the court noted that the Crown did not give Dr. Pallandi all the available evidence and therefore, he did not carry out the scrutiny that he himself said was necessary in order to determine whether the account he was given by the accused was a delusion or a falsehood.[26]
[25] Thirdly, Dr. Pallandi failed to understand and apply the distinction between an accused knowing that an act is wrong in theory and knowing that what they did was wrong.[27] As a result, he failed to follow the direction of the Supreme Court of Canada in R. v. Oommen.[28] Finally, when Dr. Pallandi saw Burlacoff, she had been taking mood stabilizing and anti-psychotic medication for a lengthy period of time. Dr. Pallandi failed to take this into consideration in his assessment. Furthermore, he ignored the results of the Rorschach testing, which was uncontested at trial and in which he has no expertise. In addition, the court made the following observation of Dr. Pallandi’s testimony: “Dr. Pallandi became argumentative and resisted admitting the obvious”.[29] The court then cited testimony where Dr. Pallandi did not concede that he had made incorrect factual assumptions.[30]
[26] In the Singh case, the court rejected Dr. Pallandi’s report because the factual basis for his report was information received from Singh that the court later determined was false.[31]
[27] In Krivicic, the issue on appeal was whether there was reason to believe that the accused had been unfit to stand trial. Two reports were prepared shortly before the accused was found guilty and they indicated that Krivicic was fit to stand trial.[32] Four years later, Dr. Pallandi prepared a report for the appeal court in which he suggested that Krivicic might not have been fit to stand trial. In rejecting Dr. Pallandi’s evidence, the court noted that Dr. Pallandi never met with the appellant, and that the reports prepared closer in time to the trial were more reliable.[33]
[28] Defence contends that these cases demonstrate that Dr. Pallandi is sloppy in his methodology and in the preparation of his reports. Consequently, Defence argues the court should be cautious before admitting Dr. Pallandi’s evidence in trial because there is too much risk that the jury will not be able to properly assess his evidence.
[29] The Crown states that in none of these four cases was Dr. Pallandi’s expertise questioned. Furthermore, in Jacobson and Singh, the factual foundation for Dr. Pallandi’s opinion was rejected. As noted by the Supreme Court of Canada in R. v. Lavallee[34], “the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion.” The Crown argues, therefore, that the rejection of Dr. Pallandi’s opinion in these cases cannot be seen as a reflection on his expertise.
[30] In addition, the Crown contends that the reasons given for rejecting Dr. Pallandi’s evidence in the Burlacoff and Krivicic cases had less to do with Dr. Pallandi’s expertise than it did with other factors such as the timing of the opinion in Krivicic and a failure by the Crown to provide Dr. Pallandi with relevant information in Burlacoff.
[31] I agree with Defence that the fact that Dr. Pallandi’s qualifications have never previously been challenged is not a reason not to give them careful scrutiny now. Moreover, I am concerned by the reasons for the rejection of Dr. Pallandi’s opinions in Krivicic and Burlacoff. Both those cases suggest that Dr. Pallandi may sometimes be somewhat lax in his application of proper methodology. The issue for this Court, however, is – does that laxness impact the reliability of his present opinion to the extent that it should not be admitted into evidence? I am not convinced that it does. I find myself in much the same position that the Ontario Court of Appeal found themselves in, in R. v. B.M.[35] While I have some reservations about the quality of Dr. Pallandi’s report and his conclusions, I am of the view that he is capable of giving expert opinion evidence in the field of forensic psychiatry.
[32] This finding does not end the matter. Even if Dr. Pallandi can give expert evidence in the field of forensic psychiatry, that does not necessarily mean that he has sufficient expertise in the specific area of automatism.
[33] Dr. Pallandi testified that automatism is a comparatively rare occurrence. He also noted that it is not a psychiatric diagnosis; it is a legal construct. Dr. Pallandi pointed out that automatism is not found in DSM-IV-TR and that there have been times when the Canadian Psychiatric Association has asked Parliament to remove that defence from the Criminal Code.[36] He agreed with Defence that there is no checklist for automatism as there is for psychiatric diagnoses, nor any list of factors or criteria that the profession is in agreement should be present before a finding of automatism can be made. On the other hand, there is a textbook being published shortly that may provide a more consistent view of what the criteria are for automatism. It is a textbook that is designed to assist in the study for the sub-specialty of forensic psychiatry that is soon to become an available certification through the College of Physicians and Surgeons. He also indicated that as far as he is aware, there is no forensic psychiatrist in Canada who specializes in cases of automatism.
[34] Dr. Pallandi’s evidence that automatism is a legal concept and not a psychiatric one is supported in R. v. Luedecke, 2008 ONCA 716. In that case, the court noted that “automatism is the legal term used to describe one specific kind of involuntary action.” The court goes on to state:
Automatism refers to involuntary conduct that is the product of a mental state in which the conscious mind is disassociated from the part of the mind that controls action. A person in a state of automatism may perform acts, sometimes complicated and apparently purposeful acts, but have no control over those actions.
[35] Despite the lack of a consistent view in the profession of what automatism is from a psychiatric perspective, Dr. Pallandi indicated that the legal concept of automatism resembles in part a dissociative state. A dissociative state is a psychiatric concept that does have certain features accepted in the psychiatric profession and that can be commented on in a given case. The Luedecke case again supports Dr. Pallandi’s view. The court noted as follows:
The disassociative state that is the hallmark of automatism can be caused by many things including disease, mental illness, concussion, drugs, and parasomnia. Each of these conditions can produce a condition in which an accused, while capable of complex, apparently goal-oriented conduct, is incapable of exercising any control over those actions.
[36] Consequently, I find as follows: first, automatism is a comparatively rare psychiatric finding; second, there is no forensic psychiatrist in Canada who would call him/herself an expert in automatism; third automatism is a legal term that describes in essence a type of dissociative state; and finally, there is little training or literature on the subject of automatism and much debate in the psychiatric profession concerning automatism. It is against this backdrop that Dr. Pallandi’s expertise in automatism must be assessed.
[37] Dr. Pallandi indicated that he has never written on the subject of automatism. He has never done a presentation on automatism to his peers, lawyers, police or judges. He has attended conferences where automatism may have been the subject-matter of a session, but he cannot recall any specifics of such a session. They are not common. In the course of his work as an investigating coroner in Toronto, he has never dealt with a case of automatism. During the time period that he was doing front-end assessments at CAMH, automatism was an area of inquiry, but he never concluded that a patient suffered from that problem.
[38] He has only once testified in a case where automatism was raised. Of some importance is the fact that Dr. Pallandi initially indicated that automatism was an issue in the case in question. After cross-examination by Defence, he conceded that while automatism was discussed in that case, it was never an issue at trial. On the other hand, Dr. Pallandi stated that voluntary and conscious behaviour was at issue in that case and that these states are similar to automatism. As a result, I find that Dr. Pallandi has never testified in court on the issue of automatism per se although he has testified on similar issues.
[39] In these circumstances, I find that Dr. Pallandi has some knowledge of automatism and he has significant training and expertise in forensic psychiatry – the only field where automatism is studied or considered. Consequently, Dr. Pallandi can be qualified as an expert in forensic psychiatry and may give opinion evidence on the issue of automatism.
Madam Justice Julianne A. Parfett
Released: February 25th, 2013