ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.:CR-13-206
DATE: 2014-05-30
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEFFREY ALLEN DAKIN
Applicant
Judith MacDonald, for the Respondent
Jeffrey Manishen, for the Applicant
HEARD: May 26, 2014
herold, j.
REASONS FOR RULING ON OPINION EVIDENCE
[1] Jeffrey Allen Dakin was charged with a series of sexual offences involving mainly pubescent females and males. Sometime ago he pled guilty to 11 counts and was convicted on them, based on a statement of agreed fact which has been filed. The Crown sought and eventually obtained approval to commence long-term offender proceedings in connection with the sentencing hearing and that hearing commenced before me on Monday, May 26, 2014.
[2] The Crown had obtained on August 30, 2013 my order to a forensic psychiatrist Derek Pallandi, one who was satisfactory to both the Crown and the defence, to conduct a comprehensive evaluation including risk assessment, pursuant to section 752.1 of the Criminal Code, RSC 1985, c C-46, to assist in determining whether Mr. Dakin’s risk and manageability was such that he might be deemed to be either a long-term or dangerous offender. Dr. Pallandi delivered a very preliminary report on December 6, 2013 and a comprehensive report on December 24, 2013.
[3] The defence did not seek a full-scale similar assessment by a forensic psychiatrist or psychologist of their choice.
[4] Dr. Pallandi concluded as follows:
While all of the above suggests that Mr. Dakin has established a pattern of behaviour with associated moderate-high risk of recurrence of the same, I cannot reasonably conclude from my evaluation of Mr. Dakin, and from all of the information available to me, that this risk could not be reasonably managed without undue compromise of public safety, provided that there is gradual, structured and highly supervised re-integration into the community.
At the end of a very careful, thorough and effective cross-examination by Mr. Manishen, counsel for the defence, Dr. Pallandi agreed that he could live with (my words not his) a modification of his opinion, from moderate-high risk to moderate.
[5] Dr. Pallandi’s report, his evidence-in-chief dealing with the many and varied aspects of it and his responses in cross-examination were all extremely informative and helpful and, from my perspective at least, presented in the way that one would hope all experts would do, recognizing their role being to a assist the trier of fact and not to be an advocate.
[6] One of the interesting comments that I took from Dr. Pallandi’s assessment, which made a great deal of sense to me, was that a treating clinician should not find himself or herself in the position of having to give an opinion of assessment of risk based on tests administered by him or her to a patient or client he has been treating for any period of time. Dr. Pallandi gave examples of why that is not a particularly good idea and in any case indicated that one or more of the organizations and colleges with which he is associated and by whose rules of conduct and ethics he is bound, prohibit such conduct.
[7] The defence has filed two reports from one Alan Kaine one dated May 30, 2013 and the second dated May 23, 2014. These reports are found at exhibit 12, tab 6 and exhibit 16 respectively.
[8] The defence sought to have Mr. Kaine qualified to give opinion evidence in the field of psychotherapy with respect to the treatment and risk assessment of sex offenders. In order to try to make the process more efficient and to assist the defence, I indicated, based on the reports that we have already looked at, in cross-examination and other contexts prior to the ruling being sought, and also in view of the evidence of Dr. Pallandi that not only did he not oppose but rather even saw great merit in a treating clinician, making some use of a risk assessments for himself or herself in establishing a treatment plan and continuing or modifying it, that I had no difficulty in saying that it seemed that Mr. Kaine should be able to give his opinions with respect to treatment programs for sex offenders (and indeed as Mr. Kaine corrected us during the course of the voir dire, people with sexual problems who have in fact not offended against the Criminal Code). The issue in a nut shell then was whether or not Mr. Kaine would be qualified to give his opinion with respect to risk assessment, namely whether or not and to what extent Mr. Dakin was likely to re-offend in a sexual manner in the future.
[9] Alan Kaine’s curriculum vitae (CV) has been filed on the voir dire as exhibit 26. On his letterhead which his reports are prepared he refers to himself as Allen Kaine, BA, MA, RSW, Clinical Services, and on his CV as Alan Kaine, Clinical Services. His CV indicates a website of www.aksextherapy.com. Mr. Kaine, graduated from Waterloo Lutheran University in 1970 with a Bachelor of Arts degree in Sociology and Psychology and in 1972 from the University of Ottawa with a Masters of Arts Degree in Criminology. His education concluded with a program at Spokane Community College, in 1982 for Polygraph Training and Certification. He refers to his business as “Psychotherapy: Assessment & Treatment Services”. Mr. Kaine’s early employment was as a parole officer with the National Parole Services and later Correctional Services of Canada. He also worked as a social work supervisor with the Provincial Ministry of Community Safety and Correctional Services.
[10] In 1983 he was certified as a Polygraph examiner and according to his CV then was involved with a series of collaborations with some psychiatrists, first Dr. Mersereau then Dr. Hucker, then Dr. Epelbaum and also with a psychologist Dr. Bradley. It was difficult if not impossible to pin down exactly what the nature of Mr. Kaine’s role was in those collaborative efforts and I am not at all certain that the collaborative relationship was not simply to permit him to have someone with the necessary qualifications to give an opinion based on the reports that he had prepared, based on tests that he had administered. This is not meant as a criticism – it may have been a very practical business decision – but it does not assist me in knowing the extent to which if at all he himself made the determination of the assessment of risk, where that was in fact what they were doing or whether it was the psychiatrist or psychologist.
[11] Mr. Kaine has to his credit three publications, each with Dr. Mersereau, the first in 1986, a second in 1986 and a third in 1988. His professional affiliations include the Ontario College of Social Workers from 2001, the Association for the Treatment of Sexual Abusers from 1997, the Canadian Association of Police Polygraphists from 1983 and the Ontario Associations of Consultants, Counsellors, Psychometrists, and Psychotherapists from 1999 to the present. As I understood his evidence he retains his association with the Ontario College of Social Worker’s although he does not have a degree at any level in social work in order to permit him to use the description, “Psychotherapist”; he advised that the Association for Consultants, Counsellors and Psychometrists and Psychotherapists, is presently seeking to be qualified as a College, in which case his association with the College of Social Workers will no longer be required, to permit him to use that term Psychotherapist.
[12] With respect to any training he has received in areas which would be related to risk assessment namely phallometric testing which he does and administering risk assessment tools, which he does as well, the absence of training of any consequence is almost staggering. His CV refers to only one of the training programs, namely his time at Spokane Community College in 1982. In his evidence on the voir dire he told us that the purpose in attending at the Spokane College for a period I believe of approximately 14 weeks was to learn all about the use of polygraph equipment, which has enabled him to be qualified as an expert in its use. During the course of his evidence, he said words to the effect of “and there I got exposed to certain phallometric issues – phallometric and polygraph tests are very similar”. The extent to which the last comment with respect to the similarities is an accurate one was not pursued. It is however the sum and substance of his training in the field of phallometric testing other than one or two days spent with a person doing those tests at the predecessor to CAMH, one or two days with a similar person in Penetang and telephone conversation with a similar person in Ottawa. With respect to his specific training in the use of the risk assessment tools on which he would be asked to opine as to Mr. Dakin’s risk of recidivism, he told us that sometime in the early 2000’s he attended at a conference held by one of his associations, the Association for the Treatment of Sexual Abusers and they had a workshop, perhaps as long as a full day dealing with those test tools. Those tools have been revised many times since then.
[13] That would appear to be the sum and substance of his training with respect to phallometric testing and the use of risk assessment tools. Counsel and I had a debate about the extent to which if at all a person needs degrees or diplomas or lengthy time spent in classrooms to be qualified as an expert, and I made it clear (hopefully) that I do not see that as a pre-requisite although at times it may at least be informative. On the other hand when we do know about the absolute minimum amount of training that was done but nothing about the nature of the training “program” itself, and know very little about the extent to which if at all Mr. Kaine was responsible at the end of the day for making assessments or only doing the tests (I used the analogy during the course of submission of a psychologist and his or her psychometrist) I am simply left with the inescapable conclusion that while Mr. Kaine may be an excellent therapist dealing with clients who have been involved with sex abuse issues either as an offender or as one who has concerns about his or her behaviour that there is nothing to suggest to me that he has developed any level of expertise at all in the area of assessing risk (as opposed to for example, perhaps administrating tests to enable him to continue to modify a treatment plan).
[14] The well-known litmus test for the admissibility of expert opinion evidence was set out by the Supreme Court of Canada in R. v. Mohan 1994 80 (SCC), [1994] 2 SCR 9, as follows:
i. The evidence is relevant to some issue in the case;
ii. The evidence is necessary to assist the trier of fact;
iii. The evidence does not contravene exclusionary rule; and
iv. The witness is a properly qualified expert.
[15] Criterion number one is clearly met. While not dispositive, a finding with respect to the extent to which if at all one might be considered to be a risk to the community based on the possibility of his reoffending, in this case in a sexual way, is a very significant factor to be considered in determining whether or not to apply to her or him the designation of a long term offender. Obviously an opinion with respect to the assessment of that risk is a very significant issue in this case. As Mr. Manishen correctly pointed out it may well not “ the ultimate issue” – that is obviously whether or not a person is found to be a long term offender – but we would hardly expect any expert giving opinion evidence to opine with respect to that matter – that is for the Court to determine.
[16] Criterion number three is not engaged in this case.
[17] Criterion number four has not, for the reasons I have tried to outline been satisfied. Indeed even for a person with a fairly wide strike-zone in applying a threshold for qualifying one to give expert opinion evidence in a non-jury trial, to qualify Alan Kaine as an expert in the area of risk assessment would be such a shocking result as to bring the administration of justice into disrepute. To do so would surely have set a new low water mark in the qualification of expert opinion evidence, a process of which I was not prepared to be a part.
[18] Interestingly, in the course of submissions it became clear that this entire exercise may well have been avoided. We know from the reports that Mr. Kaine has filed, and about which he is going to be examined, that Mr. Kaine says this: “Mr. Dakin is in the moderate range for sexual/violent recidivism”. We also know that Dr. Pallandi agreed with the use of that conclusion. When asked, Ms. MacDonald, on behalf of the Crown indicated that her submissions would be based on Dr. Pallandi’s concession and she is not and will not be asking the Court to find that Mr. Dakin is other than in the moderate range.
[19] Mr. Manishen on behalf of the defence, argued that this opinion from his proposed witness Mr. Kaine is still necessary, that is an opinion as to the assessment of risk, which I could and should take into account (as opposed to how he may or may not have used it during the course of his treatment plans), and I must confess that notwithstanding the force of the submissions I am simply unable to understand Mr. Manishen’s point. I simply am unable to say notwithstanding his able submissions to the contrary that Mr. Kaine telling us that Mr. Dakin is in the moderate range for sexual/violent recidivism will in any way add to what we already have, and more importantly what is not disputed.
[20] Accordingly, for this reason, I have ruled that Mr. Kaine may not and shall not give us his opinion of the assessment of Mr. Dakin as a risk. This is not to say, and I have tried to make this clear with counsel when I gave a very brief ruling at the conclusion of the voir dire, that Mr. Kaine who is going to continue testifying on Monday, June 2, 2014, cannot tell us what tests he used and how they and the scores of them may or may not have assisted him in formulating his treatment plan. I may or may not have concerns about the extent to which if at all, based on his experience as I understand it he may or may not have been wise in using those test results but that is not to say he cannot tell us what he understood and based on what he understood, how he treated and would propose to continue treating Mr. Dakin. That obviously is not the same as telling us his opinion, for the purpose of our accepting his opinion of Jeffrey Dakin’s risk to recidivate, which he is not permitted to do, and even if he should do so, it will not be used for that purspose.
“Justice C.N.Herold”
Justice C.N. Herold
Released: May 30, 2014
COURT FILE NO.:CR-13-206
DATE: 2014-05-30
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JEFFREY ALLEN DAKIN
REASONS FOR RULING ON OPINION EVIDENCE
Herold J.
Released: May 30, 2014