ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-557
DATE: 20131128
B E T W E E N:
HER MAJESTY THE QUEEN
N.J. Bridge, for the Crown
- and -
J. H.
K. Scott, for the Accused
HEARD: November 25 and 26, 2013
Ruling on Admissibility of Expert Evidence
Justice Thomas A. Bielby
[1] The accused, J. H. is before the Court on three charges involving sexual assault and sexual touching.
[2] This judge alone trial commenced in March, 2013 and resumed on November 25, 2013 at which time the Court entered into a voir dire concerning the admissibility of expert evidence in the area of child abuse.
BACKGROUND
[3] The accused is the great uncle of the complainant, S. H., who was born in 1994. In 2009, she gave a statement dated August 17, 2009, to the Peel Police in relation to an incident of alleged sexual abuse earlier that summer, perpetrated by the accused. As a result of the statement, charges were laid.
[4] The complainant only told the police of this one incident and told the police that the incident did not include vaginal penile penetration.
[5] At some point subsequent to the preliminary hearing, held August 23, 2010, the complainant read a book entitled, Courage to Heal. As a result she wrote down multiple incidents of sexual abuse allegedly perpetrated by the accused. I believe there were an additional 18 incidents revealed. In addition and in regards to the incident first reported, the complainant changed her statement to say that, in fact, vaginal penile penetration occurred.
[6] As a result, the complainant gave a further statement to the police on March 19, 2012.
[7] It is alleged by the complainant that these incidents occurred in the five years ending in July, 2009 and commenced when the complainant was eight or nine years of age
[8] I have included this factual overview to give some context to the evidence of the expert witness given at the voir dire.
THE EXPERT WITNESS
[9] The Crown who seeks the admission of the expert evidence, called one witness, the proposed expert witness, Dr. Louise Sas, who is a clinical psychologist.
[10] The accused did not challenge the credentials of the witness and it was conceded that Dr. Sas is an expert in child abuse. Accordingly Dr. Sas was so qualified. Her curriculum vita was entered as Exhibit A.
[11] Dr. Sas did not interview the complainant and was not asked to comment on the facts of this case or the testimony of the complainant. She was not provided with a hypothetical fact scenario and asked to provide an opinion. She testified generally to issues surrounding disclosure and disclosure patterns in regards to child victims of abuse.
[12] It was the evidence of the Doctor that a child, in order to disclose abuse, must first understand that what occurred was wrong. A very young child victim may not identify it as such, until he or she is much older.
[13] Dr. Sas testified with respect to the inhibitors that may delay or prevent disclosure of the abuse. Loyalty was described as an inhibitor. An alleged abuser may be perceived as a father figure and/or someone for whom the child cares.
[14] The closer the relationship between child and abuser, the greater the likelihood of late disclosure.
[15] Other inhibitors include the fear of disclosure and its aftermath. What will happen? Will the child lose a relationship? A child may not want the abuser punished but just wants the abuse to stop.
[16] Dr. Sas offered the opinion that if the victim does not disclose the first incident, there will likely be other incidents of abuse.
[17] If the child comes from a dysfunctional family, he or she may have no one to whom they can disclose.
[18] Shame and embarrassment are also inhibitors, especially for older children who have a better sexual understanding. Guilt is also an inhibitor if a child believes he or she was in some way responsible for the abuse, especially if the abuser is highly regarded by others, including the child victim, or who may have accepted a reward after an abusive episode.
[19] Dr. Sas testified that some child victims try to forget about what happened and do not want to deal with what occurred. A child may only talk about the abuse in general terms and not be willing to provide detail because they will only disclose what they can tolerate to reveal.
[20] Dr. Sas described disclosure as a process that can be ongoing over time. One cannot expect full disclosure in one interview. The child must trust the person to whom they disclose.
[21] Dr. Sas testified in regards to psychological entrapment which explains, for example, why a child victim would repeatedly return to his or her abuser.
[22] Dr. Sas was asked about the book, Courage to Heal and noted the book was written to help adult survivors of sexual abuse to deal with the abuse. The Doctor noted she read the book a long time ago. She was asked about the chapter, ‘Using the Writing Exercise’, and testified that it referenced a technique involving a victim of sexual abuse writing down his or her memories. Dr. Sas testified that she does not use the technique with everybody, but does with some patients to assist them with recollecting what occurred.
[23] Dr. Sas was also asked to comment on ‘Grooming’. She described it as behaviour of an abuser to get a child comfortable with physical contact on a graduated basis. She described it as very insidious. Grooming may start with an “accidental” touching which is non-sexual. At some point the behaviour becomes sexual in nature.
[24] The Doctor testified in regards to disclosure ‘triggers’. One example is the inability to tolerate the activity anymore. It may be a result from the manner of the abuse getting worse or when a child comes to the conclusion that the abuse will never end unless he or she discloses it.
[25] Dr. Sas noted that a child confronted with evidence of abuse may still not admit it or disclose it. They will continue to deny it notwithstanding a picture depicting the child being abused or in the face of a third party who witnessed the abuse.
[26] On cross examination, Dr. Sas would not agree that the indicators are also consistent with non-abuse. The doctor would not agree that indicia of grooming could also be consistent with non-abuse. She testified that grooming by definition leads to child sexual abuse.
[27] It was suggested to Dr. Sas that the book, Courage to Heal has been criticized for creating false memories in readers. In response the Doctor said that such criticism was not relevant to people who knew they were abused but did not disclose it.
[28] Dr. Sas agreed that incremental disclosure involving multiple interviews runs the risk of implanting ideas in a child’s mind, of creating false memories. The younger the child the larger the concern in this regard. This phenomenon can occur inadvertently. Repeated interviews can also result in less accurate disclosure.
ARGUMENT
The Crown
[29] The Crown submits the evidence of Dr. Sas is relevant and necessary. The Crown attorney is anticipating defence counsel will argue that the complainant lacks credibility because she did not disclose all incidents in the first instance and that with respect to the first disclosed incident, the allegation of what actually occurred changed.
[30] The Crown submits that in order to evaluate the complainant’s evidence, the evidence of Dr. Sas is necessary.
[31] Crown counsel acknowledged the test as set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. In that regard there is no issue as to the qualifications of Dr. Sas nor are there any applicable exclusionary rules.
[32] Reference was then made to R. v. Abbey, 2009 ONCA 624, [2009] O.J. No. 3534, a decision of the Ontario Court of Appeal and its application of the Mohan decision using a two-step approach.
[33] The Crown attorney submits that not only did the evidence of Dr. Sas deal with the concept of delayed disclosure, but also deals with the disclosure patterns of child victims. Research continues with respect to disclosure patterns, and there is no consensus in regards to disclosure patterns.
[34] The Crown relies on the Ontario Court of Appeal decision in R. v. G.T. [2002] O.J. No. 82 which was decided after the Supreme Court of Canada decision in R. v. D. D. [2002] 2 S.C.R. 275. The Crown also relies on R. v. M.C. 2012 ONSC 868, [2012] O. J. No. 1132
[35] The Crown attorney submits that expert evidence is admissible where the evidence is likely outside the experience or knowledge of a judge or jury. In order for expert evidence to be admissible it must be determined that ordinary people are unlikely to form a correct judgment without the assistance of a person with special knowledge.
[36] Finally, the Crown addressed the issue of risk, and submits that in a judge alone trial the risk of the expert opinion usurping the duty of the trier of fact is much less of a factor. Further, Dr. Sas did not offer an opinion as to the credibility of the complainant, S.H.
THE DEFENCE
[37] Defence counsel relies on the decision in R. v. D.D. 2000 SCC 43, [2000] S.C.J. No.44 and drew my attention to paragraph 59 therein. In reference to the expert, Dr. Marshall’s evidence, the Court states, “Distilling the probative elements of Dr. Marshall’s testimony from its superfluous and prejudicial elements, one bald statement of principle emerges. In diagnosing cases of child sexual abuse, the timing of the disclosure, standing alone, signifies nothing.”
[38] It was submitted by defence counsel that the evidence of Dr. Sas was neither necessary nor reliable. With respect to necessity, an ordinary person using their experiences can tell there is another side of the story.
[39] It is submitted that it is common sense that people lie and common sense can be used to make such a determination.
[40] It is submitted by counsel for the accused that Dr. Sas was argumentative and would not admit that all the points she made with respect to delay are consistent with both abuse occurring and not occurring.
[41] Defence counsel pointed out that Dr. Sas would not admit the criteria of grooming are also consistent with the lack of abuse. Dr. Sas testified that such conduct only becomes grooming when and if abuse occurs.
[42] Defence counsel makes the point that recantations and inconsistencies are not necessarily incremental disclosure. From that I take the meaning that recantations and inconsistencies are matters of credibility.
[43] It is submitted by defence counsel that Dr. Sas’ evidence is meant to bolster the credibility of the complainant, S.H.
[44] Reference was also made by counsel for the accused to the G.T. decision, paragraph 45, wherein it was noted that the expert in that case testified that neither late or inconsistent disclosure nor recantation prove that sexual abuse has occurred.
[45] Defence counsel asks me to have regard to R. v. R.M.G., [1998] O.J. No. 5976 as well as the Abbey decision.
[46] Defence counsel submits that the evidence of Dr. Sas is not admissible.
ANALYSIS
[47] Given the able arguments of both counsels, there are two issues to decide. One is in regards to whether the evidence of Dr. Sas is necessary and the second is in regards to the prejudicial effect of such evidence. As to the issue of reliability, that issue goes to weight of Dr. Sas’ evidence and not to its admissibility.
[48] In the D. D. decision, the expert evidence in issue related to a child victim’s delay in disclosure and lead to the conclusion that such delay does not give rise to an inference of fabrication. The evidence was admitted at trial, but on appeal the Ontario Court of Appeal ruled that such evidence was inadmissible.
[49] At the Supreme Court of Canada the appeal was dismissed. The Court agreed that the evidence of the expert was inadmissible. The Court held that the evidence was not necessary and that the subject could easily be dealt with by an appropriate instruction to the jury to the effect that delayed disclosure does not give rise to an inference of fabrication.
[50] It was the opinion of the Court that expert evidence is admissible if exceptional issues require special knowledge outside the experience of the trier of fact. The Court also noted that the admission of expert evidence runs the risk of usurping the role of the jury to make findings of credibility and fact.
[51] It was also noted by the Court that some deference is owed to the trial judge’s discretionary determination of the criteria for admissibility.
[52] R. v. G.T. [2002] O.J. No. 82, is a decision of the Ontario Court of Appeal The judgment of the Court was delivered by Laskin J. who noted at paragraph 40 that the D. D. decision dealt with the issue of delayed disclosure, standing alone. It was acknowledged that delay in disclosure will never on its own give rise to an adverse inference against the credibility of a complainant.
[53] Justice Laskin went on to say that the issues in G. T. not only dealt with delay but also dealt with the issues of inconsistencies and recantations. At paragraph 40, the learned appeal judge stated, “Patterns of disclosure among sexual abuse victims do not form a part of the ordinary experience and knowledge of jurors. Expert evidence may well be necessary to help jurors draw the proper inferences, and I conclude that it was necessary in this case.”
[54] At paragraph 43, Justice Laskin notes, “Dr. Chamberlan’s evidence dealt with patterns of disclosure among sexual abuse victims; delays in disclosure form an integral part of those patterns.
[55] In the matter before me the evidence of Dr. Sas went beyond that of delayed disclosure. She testified that incremental disclosure was consistent with child abuse. One interview is never enough. She also had regard of too many interviews and the risk of false memories.
[56] Dr. Sas testified to the triggers for disclosure and the inhibitors of disclosure. She also referenced the reluctance to give details by the victim when asked about the abuse suffered.
[57] As noted previously the complainant’s two statements give rise to a significant inconsistency and recantation with respect to the details of an incident of sexual abuse which allegedly occurred in the summer of 2009, and which resulted in the initial disclosure.
[58] I conclude therefore that the evidence of Dr. Sas and the issues arising from the evidence are comparable to those which arose in the G. T. case. Dr. Sas’ testified in regards to patterns of disclosure which do not form part of the ordinary experience.
[59] R. v. L. K., 2011 ONSC 2562, [2011] O.J. No. 2553, is a decision of Trotter J. of this Court. The learned judge ruled that incremental disclosure is the same as delayed disclosure and that it can be dealt with in the same manner by way of a proper jury instruction. As noted by the Crown, the facts of that case were somewhat different from this matter and dealt with the issue of bias where the expert witness was also a treating physician.
[60] However, and with the greatest respect, I do not agree that incremental disclosure is the same as delayed disclosure. Incremental disclosure may mean the disclosure of more incidents or the disclosure of more details in regards to the incidents already disclosed. It may mean the combination of both. It may include inconsistencies and recantations.
[61] I agree with the Crown attorney that disclosure is a progressive exercise and some of its concepts may not be understood by an ordinary person.
[62] R. v. M. C., 2012 ONSC 868, [2012] O.J. No. 1132, is a decision of Thorburn J. of this court. He was required to determine the admissibility of expert evidence. From paragraph 56 I quote,
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 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 interest in all cases where inconsistent testimony was given by the complainant would make it difficult, if not impossible, to question the complainant’s credibility.
[63] The inconsistencies or recantations of a witness can be serious and may have a considerable impact on credibility. The evidence of Dr. Sas provides a different option with respect to inconsistencies and recantations, and perhaps even context to the evidence of the complainant. It does not prevent me from concluding, if I choose to do so, that the inconsistencies adversely impact on the credibility of the complainant.
[64] Dr. Sas testified in a case decided by Seppi J. of this court in R. v. Stea, [2007] O.J. No. 2219. From paragraph 340 I quote,
The testimony of Dr. Sas is only relevant as needed to explain the conduct of a complainant that may be counter to how a person inexperienced in such matter might expect a victim of sexual abuse to act. The evidence is not used to increase or attack a witnesses’ credibility, not to demonstrate an offence was committed. Where appropriate, it may be used to explain behaviours that may be relevant to the overall assessment of a witness’ evidence.
[65] I agree with and adopt the comments of Justice Seppi.
[66] Defence counsel in my matter of course relies on the D.D. decision which stands for the proposition that the timing of the disclosure, standing alone, signifies nothing. (para. 59). I accept this statement but, as I noted above, the evidence of Dr. Sas goes beyond the timing of disclosure.
[67] Inconsistencies and recantations may or may not be part of incremental disclosure. They may be indicators of untruthful testimony or they may be factors in incremental disclosure.
[68] I conclude that the evidence of Dr. Sas is necessary.
[69] With respect to relevance and risk, counsel for the accused had referenced paragraph 39 of the D.D. decision which reads,
The second prejudicial effect merits closer consideration. Low value expert testimony can distort the fact-finding process by taking a relatively simple issue, dressing it up in scientific language and presenting the trier of fact with a ready-made decision. The jury may be tempted to avoid engaging in serious consideration of the actual facts and instead rely on the apparent expertise of the scientist. In effect, the expert may usurp the domain of the jury. Trial judges must take this possibility into account in determining whether the prejudicial effect of expert evidence outweighs its probative value.
[70] This concern was considered in the Mohan case in which, at paragraph 18, the Court noted that relevant evidence may be excluded if it probative value is overborne by its prejudicial effect and should not be admitted if it will distort the facts.
[71] In the Abbey decision this concern was referred to as legal relevance and distinct from logical relevance (para. 82).
[72] I have considered this argument and have concluded that in regards to the risk, the probative value is not overborne by it prejudicial effect.
[73] In this matter I am the trier of the facts. I recognize the purpose of the expert evidence and the manner in which it is to be used. The admission of such evidence will not usurp my duty.
[74] Further, Dr. Sas did not testify as to the credibility of the complainant S.H. nor was she asked to comment on any of the facts in this case. Her evidence is of assistance to me as a tool in considering behaviour and is relevant as such.
[75] R. v. R.M.G., [1998] O.J. No. 5976 is a decision provided to me by counsel for the accused. Within that decision, at paragraph 11 the Court refers to the decision of Langdon J. in R. v. S.W., [1996] O.J. No. 1410. In S.W. the Crown sought to introduce the evidence of a psychologist about the general behaviour of people who have been sexually abused. The evidence was tendered for the purpose of explaining the witness, unfortunate character traits and attributing them to past sexual abuse. Justice Langdon stated,
It is illogical to reason that the past history of sexual abuse explains away the lack of credibility; it does not. Whatever the cause, the witness remains trouble and his or her credibility must be assessed accordingly. Even assuming there was some relevance to the proposed evidence, it admission would lead to great prejudice in the sense that it would almost certainly be misused by the jury.
[76] The facts in S. W. can be distinguished. The expert’s evidence in that case not only dealt with general behaviour of child victims but also commented on the behaviour of the complainant before the court. In the matter before me, that is not the case.
[77] Further, in this matter the risk is less as there is no jury.
[78] I find that the evidence of Dr. Sas is relevant.
DECISION
[79] As noted in the case law, I have discretion in regards to the admissibility of expert opinion evidence. In exercising that discretion I accept that the evidence of Dr. Sas is necessary and relevant. The evidence of Dr. Sas is admissible. As agreed to by both counsel the doctor’s evidence at the voir dire will now be deemed to be evidence in this trial.
Justice Thomas A. Bielby
Released: November 28, 2013
COURT FILE NO.: CR-10-557
DATE: 20131128
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
J. H.
REASONS FOR RULING ON ADMISSABILITY OF EXPERT EVIDENCE
Justice Thomas A. Bielby
Released: November 28, 2013