ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: M 104/13
DATE: 20131113
B E T W E E N:
N.S.
D. Butt, for the applicant
Applicant
- and -
HER MAJESTY THE QUEEN, M----I.S. and M----D.S.
Respondents
L. Hamilton, for the respondent, Her Majesty the Queen
E. Battigaglia, for the respondent, M----I.S.
M. Dineen, for the respondent, M----D.S.
HEARD: November 12, 2013
Nordheimer J.:
[1] M----I.S. and M----D.S. stand charged with sexual assault. N.S. is the complainant. N.S. wishes to wear her niqab, or facial veil, while giving evidence. The preliminary hearing in this matter began in 2008. The issue of the complainant’s wish to wear her niqab resulted in litigation that eventually lead to the Supreme Court of Canada.[^1] The Supreme Court sent the matter back to the preliminary hearing judge to reconsider the issue of whether the complainant should be permitted to wear her niqab. The Supreme Court outlined a four part test to be utilized in arriving at that decision.
[2] The matter continued before the preliminary hearing judge. N.S. sought to call an expert, Professor Jonathan Freedman, to give expert evidence. In particular, N.S. sought to qualify Professor Freedman as an expert in psychology as applied to the courtroom and asked that he be allowed to give expert evidence “on the social science state of knowledge around detecting honesty through facial demeanour”.
[3] As part of his evidence, Professor Freedman had prepared a report that reviewed the research literature on this topic from 1975 to the present. The thrust of the expert evidence that Professor Freedman was prepared to give was that studies have demonstrated that people are not very good at detecting whether people are lying and that facial clues do not increase the accuracy of people detecting lying. Indeed, the concluding sentence in Professor Freedman’s report for this case was:
Thus, being able to observe facial expressions is not helpful in judging whether the person is telling the truth.
I note that Professor Freedman’s opinion was based on a review of these studies and not on any research that he had undertaken personally.
[4] The preliminary hearing judge declined to allow Professor Freedman to give the proposed expert evidence. At the conclusion of the voir dire on this issue, he concluded, essentially, that Professor Freedman was not qualified to give expert evidence on the proposed subject because he had not undertaken any of his own research in this area. He found that Professor Freedman was in a position to express an opinion on the “state of the literature” but not on the central issue that he identified as confronting him. The preliminary hearing judge identified that issue in the following terms:
And I would clarify that topic by saying that what this court needs is expert opinion on the necessity of observing a witness’ face in order to assess his or her demeanour and credibility and the reliability of opinions formed on the witness’ credibility based on observation of the witness’ demeanour.
[5] The preliminary hearing judge then went on to consider the issue whether N.S. should be permitted to wear her niqab while giving her evidence. He concluded that she should not. While he found that the desire of N.S. to wear her niqab was based on a sincere religious belief, the preliminary hearing judge concluded that the interests of the accused in a fair trial required that she remove her niqab. The preliminary hearing judge noted that the evidence of N.S. was central to the charges and that her credibility was very much in issue in the proceedings. The preliminary hearing judge also concluded that there was no accommodation short of directing that N.S. remove her niqab that was possible in this case.
[6] In considering this issue, I cannot avoid the reality of where this case presently stands. It has been five years since the preliminary hearing began and it has still not progressed in any real sense. No clearer example could be found regarding the amount of time that this case has taken, and still be at the preliminary hearing stage, than to note that the original preliminary hearing judge has retired since his ruling. A new preliminary hearing judge has been appointed. Notwithstanding that development, the current issue remains to be decided because the new preliminary hearing judge has advised counsel that he intends to adopt the former preliminary hearing judge’s ruling that N.S. must remove her niqab when she gives her evidence. I will also note that there is some urgency to this matter as I am advised that the preliminary hearing is scheduled to continue on November 18, 2013.
[7] The sole issue before me is whether the preliminary hearing judge was correct in refusing to hear from the proposed expert. That said, if I conclude that he was not correct, it would at least be arguable that the ruling would have to be re-visited so that the expert could be heard from so, to some degree, the determination of this issue impacts on the ultimate ruling.
[8] I begin by saying that I do not agree with the submissions of some of the respondents, particularly the Crown, that certiorari does not lie at the hands of the applicant for the purpose of reviewing the preliminary hearing judge’s decision. This is not a situation like that of an accused person who must accept evidentiary rulings made at a preliminary hearing and content him/herself with addressing such matters at trial. N.S. is in an entirely different situation. She has no appeal rights arising from any trial. In addition, her Charter rights are directly affected by the preliminary hearing judge’s ruling. And the impact of that ruling is immediate to her. Telling N.S. that she must wait until some later date to review the correctness of the ruling after she has had to remove her niqab is an entirely unsatisfactory result. I conclude that N.S. has the same rights of review now, that lead to the ruling of the Supreme Court of Canada, as she did before that ruling. Indeed, this application essentially involves the second half of the same issue.
[9] This issue was addressed in this very case in the decision of the Court of Appeal[^2] where Doherty J.A. made it clear that a third party (i.e. a party other than the accused person or the Crown) had an expanded right to extraordinary remedies. He said, at para. 23:
However, where the moving party on the extraordinary remedy application is a “third party”, that is a party other than the accused or the Crown, and the challenged order finally decides the rights of the third party, extraordinary remedy relief will lie on the more traditional grounds of both jurisdictional error and error of law on the face of the record: [citations omitted]
[10] In terms of the admissibility of expert evidence, I repeat the test laid down by the Supreme Court of Canada in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 where Sopinka J. said, at para. 17:
Admission of expert evidence depends on the application of the following criteria:
(a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; (d) a properly qualified expert.
[11] The issue of expert evidence arose because of certain observations that the Supreme Court of Canada made during the course of their ruling in this case. Among those observations were the following by McLachlin C.J.C. writing for the majority:
We have no expert evidence in this case on the importance of seeing a witness’s face to effective cross-examination and accurate assessment of a witness’s credibility. (para. 17)
On the record before us, I conclude that there is a strong connection between the ability to see the face of a witness and a fair trial. Being able to see the face of a witness is not the only -- or indeed perhaps the most important -- factor in cross-examination or accurate credibility assessment. But its importance is too deeply rooted in our criminal justice system to be set aside absent compelling evidence. (para. 27)
Future cases will doubtless raise other factors, and scientific exploration of the importance of seeing a witness’s face to cross-examination and credibility assessment may enhance or diminish the force of the arguments made in this case. (para. 44)
[12] These observations were a clear invitation to N.S. to lead expert evidence, if she wished to do so, in an effort to dispel the notion that seeing a witness’s face was as important to cross-examination and credibility assessment as was assumed from its historic place in our trial process.
[13] That invitation from the Supreme Court of Canada did not, however, require the preliminary hearing judge to accept whatever expert was proffered for this purpose. The preliminary hearing judge, correctly in my view, had concerns regarding the nature of the opinion evidence that was being offered through Professor Freedman. Professor Freedman is eminently qualified in certain areas. It is not clear, though, that he is qualified to give an opinion on the central issue that the Supreme Court of Canada identified. In essence, all that Professor Freedman was offering was a review of studies done by others. Admittedly, Professor Freedman was in a position to offer his opinion on the methodology used in those studies but he was not in a position to offer an opinion on the central issue. These limitations on Professor Freedman’s knowledge would also mean that it would be difficult for defence counsel to effectively cross-examine Professor Freedman on the nuances of how facial expressions may impact on credibility and the progress of a cross-examination since he was not involved in any of these studies nor has he conducted any studies of his own.
[14] The concern about expert evidence that relies solely on a literature review was commented on in R. v. Pham, [2013] O.J. No. 3617 (S.C.J.) where Durno J. said, at para. 66:
As was the case in Mathison, that the witness with some knowledge in an area has read texts etc. does not make him or her an expert qualified to give opinion evidence in the areas in which he had read.
[15] The reference to R. v. Mathison, 2008 ONCA 747, [2008] O.J. No. 4382 (C.A.) is also helpful on this issue. In that case, Laskin J.A. made the following point regarding the qualification, as experts, of individuals who simply review literature on a subject. He said, at paras. 126-127:
Mr. Mathisen contends that Dr. Rosenbloom was qualified because he had extensively reviewed the medical literature on the effects of carbon monoxide poisoning. However, we agree with the trial judge that this alone did not qualify Dr. Rosenbloom to give an expert opinion outside the area of his field of expertise:
In my opinion, it is inappropriate to find a witness to be a properly qualified expert where the source of the proposed expertise comes from reviewing literature -- albeit with a facility that most of us would not have -- but in respect of a subject matter that is outside the field of that witnesses’ (sic) education and training. In particular, the bulk of the opinion letter deals with neuropsychiatric problems attributed to carbon monoxide and purports to qualify or bolster as being reasonable the reports made by Mr. Mathisen to this witness in respect of neurological or behavioural aspects, which in my opinion, are not within Dr. Rosenbloom's sphere of expertise in the ordinary sense.
Indeed, as the Crown points out, were it otherwise, courts would be obliged to qualify as experts persons who could not offer real opinions of their own on any given subject but could only point to what they had read.
[16] The last observation encapsulates what was being offered in this case through Professor Freedman. Professor Freedman was not in a position to offer his own opinions on the ultimate issue. He could only offer the conclusions of others based on what he had read. That would be very unsatisfactory to defence counsel who presumably would want to be able to cross-examine any such expert on different scenarios especially concerning the usefulness of non-verbal clues that witnesses may offer during the course of giving their evidence, especially while being cross-examined.
[17] On that latter point, it is important to remember that the issue here is not solely whether persons can better judge whether a witness is telling the truth or lying by being able to see their faces. The issue of being able to watch a witnesses reactions is much broader. It is not just credibility that is of concern. At least as important are the non-verbal clues that a witness may exhibit while being cross-examined. The preliminary hearing judge was alive to this issue. It was also referenced by McLachlin C.J.C. in the observations I have quoted above where she referred to “effective cross-examination and accurate assessment of a witness’s credibility”.
[18] Counsel examining a witness may be able to tell from the witness’s expressions whether they are comfortable or uncomfortable with a certain line of questioning. A witness may show, through their facial expressions, signs of concern or anger or resistance or other indicators that may prompt examining counsel to pursue a line of inquiry or to abandon it. Simply put, non-verbal clues may alert counsel to whether they have “touched a nerve” in any particular area.
[19] This point was also made in the Court of Appeal’s decision in this case where Doherty J.A. said, at para. 54:
Covering the face of a witness may impede cross-examination in two ways. First, it limits the trier of fact’s ability to assess the demeanour of the witness. Demeanour is relevant to the assessment of the witness’s credibility and the reliability of the evidence given by that witness. Second, witnesses do not respond to questions by words alone. Non-verbal communication can provide the cross-examiner with valuable insights. The same words may, depending on the facial expression of the witness, lead the questioner in different directions.
[20] I would also note that the issue before the preliminary hearing judge was not just the qualifications of Professor Freedman. The preliminary hearing judge was required to assess all four factors from Mohan in deciding whether to admit Professor Freedman’s evidence even if he was a properly qualified expert. In that regard, counsel for N.S. frequently submitted that Professsor Freedman’s evidence would be “helpful” to the issue that the preliminary hearing judge had to decide. It may well be that the review of the studies that Professor Freedman had undertaken would have been helpful to the preliminary hearing judge in terms of the ultimate decision that he was called upon to make. However, the fact that opinion evidence may be “helpful” is not the test. The test from Mohan is necessity. It was open to the preliminary hearing judge to conclude that Professor Freedman’s review was of such limited value that it did not meet the necessity test. I note on this point that, in making reference to the possibility that scientific exploration could direct a different approach to the importance of being able to see a witness’s facial expressions, McLachlin C.J.C. referred to the need for “compelling” evidence.
[21] The conclusion by the preliminary hearing judge that the expert evidence did not satisfy the Mohan criteria for admissibility is a fair one. The Supreme Court of Canada had made it clear that the right to see a witness was very firmly established as an integral part of our trial process and was necessary to trial fairness. If that “deeply rooted” concept was to be displaced, the preliminary hearing judge could fairly conclude that something more than a review of existing studies would be required. In reaching that conclusion, the preliminary hearing judge would be acting entirely within his authority as the “gatekeeper” for the ultimate determination of the admissibility of any piece of evidence, especially expert evidence. That ultimate determination is very much a discretionary one. It does not allow for just one answer whether affirmative or negative. It was described in R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330 (C.A.) by Doherty J.A., at para. 79:
The “gatekeeper” inquiry does not involve the application of bright line rules, but instead requires an exercise of judicial discretion. The trial judge must identify and weigh competing considerations to decide whether on balance those considerations favour the admissibility of the evidence. This cost-benefit analysis is case-specific and, unlike the first phase of the admissibility inquiry, often does not admit of a straightforward “yes” or “no” answer. Different trial judges, properly applying the relevant principles in the exercise of their discretion, could in some situations come to different conclusions on admissibility.
[22] In the end result, I cannot conclude that the preliminary hearing judge committed an error of law, or exceeded his jurisdiction, in arriving at his decision not to accept the opinion evidence offered through Professor Freedman.
[23] One final matter deserves mention. During the course of the hearing, counsel for N.S. offered a compromise solution. He advised that he had been instructed by his client that she would be prepared for the purposes of giving her evidence to remove her niqab if arrangements could be made so that only the court, counsel and court staff would see her face. Under these arrangements, the public, including the accused, would not be able to see her face when she gave her evidence. While I appreciate the offer of a compromise that might accommodate the competing rights of N.S. and the accused persons, in my view, whether that compromise is an appropriate one to adopt in this case is a matter that ought to be determined by the preliminary hearing judge. I do not consider it appropriate for me to impose on the preliminary hearing judge an alternative procedure. It is up to the preliminary hearing judge to determine how the hearing over which he is presiding should proceed. I am sure that he will give appropriate consideration as to whether this proffered compromise should be adopted.
[24] For these reasons, I have concluded that the application must be dismissed.
NORDHEIMER J.
Released: November 13, 2013
COURT FILE NO.: M 104/13
SUPERIOR COURT OF JUSTICE
B E T W E E N:
N.S.
Applicant
- and -
HER MAJESTY THE QUEEN, M----I.S. and M----D.S.
Respondents
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726
[^2]: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.)