ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20130703

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GEORGE DOODNAUGHT

David Wright and Susan Kim, for the Crown

Brian H. Greenspan and Jill Makepeace, for George Doodnaught

RULING RE: ADMISSIBILITY AND SCOPE OF DEFENCE EXPERT OPINION EVIDENCE

J.D. McCOMBS J.

OVERVIEW

1. Dr. George Doodnaught is an anesthesiologist facing twenty-one charges of sexual assault. The assaults allegedly were committed in operating rooms at North York General Hospital while the complainants were undergoing surgery, and were under “conscious sedation” under Doodnaught’s care.

2. A core issue in the trial is the extent to which the reliability of the complainants’ recollections has been tainted by the fact that they were sedated when the assaults are said to have been committed.

3. On June 24, 2013, following a lengthy voir dire, I ruled that the evidence of the three defence experts is admissible, subject to some limitations, and I indicated that brief reasons for admitting the experts’ opinions, and describing the scope of admissibility would follow. These are those reasons.

The Crown Experts

4. The Crown’s case includes the testimony of two experts in the field of anesthesiology. Their written reports and testimony were received without objection by the defence.

5. The evidence of the Crown experts had several components, including:

• The level of awareness of patients under conscious sedation;

• The amnesic effects of the drugs administered to the complainants; and

• The incidence of sexual fantasy while under conscious sedation.

6. A core aspect of the Crown experts’ testimony was their opinions that it is exceedingly rare for patients under conscious sedation to experience fantasies or hallucinations involving acts like those alleged by the twenty-one complainants.

The Defence Experts

7. The defence case includes the evidence of three medical experts. Two of them, Dr. Alan Aitkenhead and Dr. Orlando Hung, are internationally recognized experts in the field of anesthesiology. The third, Dr. Joel Jeffries, is a psychiatrist with well-established clinical and academic expertise in the effects of psychotropic drugs on perception and memory. He has been a psychiatrist for over forty years and has for many years been an associate professor at the University of Toronto faculties of medicine and pharmacy. Dr. Jeffries also conducts a clinical practice, primarily focused on patients suffering from schizophrenia; and he has extensive experience and knowledge about the effects of psychotropic drugs on perception and memory. Dr. Jeffries is one of four editors of the “Clinical Handbook of Psychotropic Drugs”. The handbook is in its 19th edition and has sold over 200,000 copies since its inception in 1988.

The Voir Dire

8. At the request of the Crown, the evidence of the three defence experts was heard as a voir dire, to examine the extent of their expertise, its relevance to the issues in this case, to determine the admissibility of their evidence, and if admissible, to delineate the scope of their evidence in the context of this case.

9. Counsel have agreed that the evidence heard on the voir dire that is held to be admissible will apply to the trial proper.

The Threshold Admissibility Issue

10. The voir dire concerns only the threshold issues of admissibility of the defence expert evidence and its scope. My responsibility to determine the ultimate value of the evidence will come after final argument.

The Applicable Principles

11. Expert opinion evidence is presumptively inadmissible: its admissibility must be established on the balance of probabilities[^1]. Courts must be vigilant, both in determining whether the preconditions to admissibility have been met, and in ensuring that expert opinion evidence does not go beyond permissible bounds[^2].

12. R. v. Mohan[^3] outlines the test for admissibility of expert evidence, and identifies four factors for the court’s consideration:

i. relevance;
ii. necessity;
iii. the absence of an exclusionary rule; and
iv. a properly qualified expert.

13. A two-stage approach to the admissibility analysis has been mandated by the Court of Appeal for Ontario in R. v. Abbey[^4].

a. The first stage of the admissibility analysis

14. The first stage addresses the preconditions to admissibility[^5]:

i. Whether the evidence relates to a subject matter appropriate for expert testimony;

ii. Whether the expert is properly qualified;

iii. The absence of an exclusionary rule;

iv. Whether the evidence is logically relevant to a material issue.

b. The second stage of the admissibility analysis

15. The second stage involves a cost-benefit analysis of the evidence, taking into account its probative value, reliability, significance of the issues, and necessity; and weighing those factors against its consumption of time, and the potential for prejudice, including the likelihood that the evidence will confuse the trier of fact.

The Principles Applied

a) The first stage of the admissibility analysis

i. Is the subject matter appropriate for expert testimony?

16. The answer to this question is clearly “yes”. There is no dispute that the court requires assistance to understand the effects of the drugs administered to the complainants on their perceptions and memories. This is a core issue in the case and one that is beyond the expertise of the court.

ii. Are the experts properly qualified?

a) Drs. Hung and Aitkenhead

17. The Crown takes no issue with the qualifications of Drs. Hung and Aitkenhead as experts in the field of anesthesiology, but submits that their evidence must be circumscribed under the second stage of the admissibility analysis.

b) Dr. Jeffries

18. The Crown submits that Dr. Jeffries, who is neither an anesthesiologist nor a certified psychopharmacologist, lacks expertise concerning the effects of the specific drugs administered to the complainants, and is thus not in a position to assist the court in understanding their potential effects on the reliability of the complainants’ evidence of their perceptions and memories of the alleged sexual assaults upon them.

19. I do not accept this submission. Although Dr. Jeffries does not have direct experience with the drugs administered to the complainants, he possesses considerable general expertise in the effects of psychotropic drugs on perception and memory. The drugs administered to the complainants are psychotropic drugs; and in my view, the evidence of Dr. Jeffries is of potential assistance to the court in this area. I conclude that he meets the “properly qualified” criterion of the first stage of the admissibility analysis.

iii. The absence of an exclusionary rule

20. Apart from the rules governing the admissibility of expert opinion evidence itself, the proffered evidence is not subject to any other exclusionary rule.

iv. Logical relevance to a material issue

21. Logical relevance, as explained in Abbey[^6], means that the evidence must have “a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence”.

22. The core issue in this case is the reliability of the complainants’ evidence that they were sexually assaulted by the accused. Central to the evaluation of that issue is the extent to which the complainants’ perceptions and memories may have been affected by the drugs administered to them.

23. I conclude that the evidence of the three defence experts is logically relevant to this issue.

24. I therefore conclude that the proffered defence experts meet the first stage of the admissibility analysis, and turn now to the second stage.

b) The second stage of the admissibility analysis

25. In this cost-benefit stage of the analysis mandated by Mohan and Abbey, three contextual factors must be born in mind. The first is that because this is a judge-alone trial, the danger of misuse of the evidence is significantly reduced[^7]. The second is that courts should be extremely cautious in denying an accused the right to call evidence in his or her own defence. Before denying the defence the right to call relevant evidence, its prejudicial effect must substantially outweigh its value[^8]. Finally, in the circumstances of this case, where the Crown has called its own experts to express their opinions that patients under conscious sedation very rarely experience sexual fantasies or hallucinations such as those alleged in this case, fairness to the accused requires, in my view, that the defence not face undue roadblocks to calling evidence that potentially rebuts the assertions of the Crown experts.

The Admissibility of the Proffered Defence Expert Evidence

26. With respect to Drs. Aitkenhead and Hung, the Crown does not contest their expertise or the admissibility of their opinions, but instead submits that the scope of their evidence must be circumscribed.

27. With respect to Dr. Jeffries, the Crown position is that his expertise as a psychiatrist does not embrace the areas relevant to the issues concerning sexual fantasy, perception, and memory that are germane to this case. The Crown emphasizes the importance of the court’s gate-keeper function, and of ensuring that the integrity of the fact-finding process not be compromised by the admission of unreliable, speculative, and unscientific opinion evidence.

28. A few of the many examples of purportedly inadequate expertise relied upon by the Crown to resist the admissibility of Dr. Jeffries’ evidence are these:

• he has inadequate knowledge of the effects of the particular drugs administered to the complainants;

• his opinion concerning the synergistic or potentiating effects of the drugs is purely speculative, particularly in light of his failure to take into account the dosages administered to the complainants;

• his opinion that procedures such as insertion of an oral airway device, or reattachment of a dislodged heart lead could contribute to misperceptions of sexual assault is speculative and outside his expertise;

• his opinions concerning fragmented memory, dysmnesia, distorted perceptions, etc., have little or no application to the issues presented in this case.

Discussion and Conclusion re: Admissibility

29. The Crown has identified real limitations on the expertise of Dr. Jeffries in relation to the issues in this case. The question is whether those limitations should result in exclusion of his evidence or whether they should be factors to be considered in evaluating the weight to be given to it.

30. In determining admissibility, I place considerable importance on the fact that the Crown has tendered expert opinion evidence as part of its case. If accepted, it is powerful evidence for the Crown. In my opinion, refusal to permit the defence to counter the evidence of the Crown experts would deny the accused his right to make full answer and defence. There is good reason for the requirement that before depriving the defence the right to call its experts, the court must be satisfied that its prejudicial effect substantially outweighs its probative value[^9].

31. Dr. Jeffries’ opinions are based on many years of experience in the field of psychiatry, rather than rigorous scientific study or research. Opinions of this type are routinely received in evidence and “scientific validity is not a condition precedent to the admissibility of expert opinion evidence”[^10].

32. The issues surrounding the dynamics of human memory, perceptions, and dysmnesia, are subtle but important. In the circumstances, I conclude that the evidence of Dr. Jeffries survives the probative value/substantial prejudicial effect analysis.

33. Dr. Jeffries’ evidence is therefore admissible.

34. I turn now to a brief discussion of the scope of admissibility of the evidence of the three defence experts.

The Scope of the Defence Experts’ Testimony

35. I am mindful of a trial judge’s duty to delineate and circumscribe the evidence permitted to be given by expert witnesses[^11]. In jury cases, the risk that the integrity of the trial will be hijacked by experts is very real, and the duty of vigilance on the part of trial judges is at its highest. In a judge-alone trial, the risks are substantially reduced, but not erased.

36. I have given this issue careful and respectful consideration. I conclude that in the circumstances of this case, it is neither possible nor practical to delineate with precision the scope of admissibility of the defence experts’ opinions. In my view, a brief description of the guiding principles relating to the scope of the experts’ testimony is sufficient to ensure that their evidence remains within permissible limits.

37. Drs. Aitkenhead and Hung are anesthesiologists with clinical experience in operating rooms during surgery, but they lack specific knowledge of the practices in the operating rooms of North York General Hospital. Their evidence concerning general practices during surgery, including their understanding of the roles played by, and the movements of, the various medical personnel generally present during surgery is admissible, subject to the weight to be given to it in light of their lack of knowledge of practices specific to North York General Hospital, particularly during the time period covered by the indictment.

38. Dr. Jeffries, on the other hand, lacks sufficient expertise concerning general surgical practices, including the activities of the various medical personnel during surgery. To the extent that his opinions are informed by his understanding of practices and procedures during surgery, those elements of his opinion are inadmissible.

39. Moreover, the three defence experts lack expertise concerning what might motivate someone to commit the types of assaults alleged in this case. In the course of the voir dire, it became apparent that to some extent, the experts’ opinions may have been informed by their skepticism that a person in the position of the accused would be motivated to commit the crimes alleged against him. The defence concedes that such result-oriented thinking has no place in the trial and to the extent that it has informed their opinions, it is irrelevant and inadmissible.

40. The Crown has submitted that I should limit the scope of admissibility of the defence experts to preclude opinions concerning other specific areas, such as the content of dreams and fantasies, the possibility of surgical stimulus being interpreted as sexual assault, and the synergistic effects of drugs.

41. I appreciate that the weight of the experts’ opinions on these and other subjects is very much in issue in this trial, but particularly since this is a judge-alone trial, I conclude that the potential for prejudice is low and does not substantially outweigh its probative effect.

42. In the result, the evidence of the three defence experts is admissible, and the scope of their evidence is limited in accordance with the general guidelines I have outlined.

McCombs J.

Released: July 3, 2013

[^1]: R. v. Abbey, (2009) 2009 ONCA 624, 97 O.R. (3d) 330 (C.A.) at para. 71.
[^2]: See the observations of Commissioner Goudge in the report of the Inquiry into Pediatric Forensic Pathology in Ontario at pp. 499-500, cited at para: 64 of Abbey.
[^3]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9.
[^4]: Abbey, supra note 1, at para. 76.
[^5]: Abbey, supra, at para. 80.
[^6]: R. v. Abbey, supra, para. 82.
[^7]: See for example, R. v. Roks 2011 ONCA 526 at para. 94.
[^8]: R. v. Seaboyer (1991) 1991 76 (SCC), 66 C.C.C. (3d) 321 at 391e.
[^9]: R. v. Seaboyer, supra, note 5, at p. 391e.
[^10]: R. v. Abbey 2009 ONCA 624, [2009] O.J. No. 3534 (Ont. C.A.), para. 109.
[^11]: Abbey, supra, at paras. 62-64 & 72-74.