ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-280
DATE: 20150513
BETWEEN:
Her Majesty the Queen
Peter Leger, for the Crown
- and -
J.F.
Alan Risen, for the Defendant
Defendant
HEARD: May 11 and 12, 2015
REASONS FOR DECISION – ADMISSIBILITY OF DEFENCE EXPERT OPINION EVIDENCE
Conlan J.
I. Introduction
[1] Mr. J.F. is charged with one count of sexual assault. The Indictment, as amended, reads as follows:
Her Majesty the Queen presents that J.F., between the 17th day of December 2011 and the 18th day of December 2011, at the Town of Blue Mountains, Central West Region, did commit a sexual assault on C.S., contrary to section 271 of the Criminal Code of Canada.
[2] The accused had elected to be tried by a jury. An earlier voir dire was held to determine the admissibility of J.F.’s statement to the police. I ruled that the said statement was admissible at trial – those Reasons are reported at 2015 ONSC 2889. After that decision was released, the accused re-elected to be tried by a Judge without a jury.
[3] The trial began in Owen Sound on May 11, 2015 and continued on the 12th. I heard from two witnesses on behalf of the Crown – the complainant, C.S., and the investigating police officer. The Crown’s case ended on May 12. The Defence elected to call evidence.
[4] The first witness for the Defence was Timothy Moore (“Professor Moore”). A voir dire was held to determine the admissibility of proposed expert evidence to be given by Professor Moore. There was only one witness on the voir dire, Professor Moore. The hearing was completed in about one-half day. At the end of submissions on May 12, I ruled that Professor Moore would be permitted to give expert opinion evidence in the following areas, all related to memory: (i) misinformation effects, (ii) factors that may compromise the reliability of autobiographical recollections, (iii) distinguishing an authentic memory from one which may have arisen through imagination inflation, (iv) the difficulty of distinguishing an illusory memory from one based on actual experience, (v) source amnesia or source monitoring failure: the notion of where the memory comes from, (vi) the notion that imagined events can be mistaken for actual events, and (vii) the constructive and reconstructive nature of memory.
[5] There were two other fields suggested by Defence counsel, cognitive psychology and memory generally, which I declined to accept as they are too broad. Further, they are redundant as the other areas are subsumed within those umbrella categories.
[6] The reason why the Defence wants to elicit evidence from Professor Moore is to combat the statement given by the accused to the police, which statement could be interpreted as being inculpatory. For example, in that statement, J.F. says that he thinks that he might have had sex with C.S. while she was sleeping.
[7] Consent is the key issue at trial. Reports from the Centre of Forensic Sciences (Exhibits 1 and 2) are powerful evidence that sexual intercourse between the accused and the complainant took place. And the complainant testified at trial that she does not remember any sexual encounter between her and J.F. because she was passed out after a night of drinking alcohol and smoking marihuana. She had been a guest of her very good friend, J.F., at his employer’s Christmas party in Blue Mountains.
[8] The Defence wants to argue that I should place little if any weight on the statement of J.F. to the police (and the apology letter that he wrote to C.S. during the interview) because his seemingly inculpatory admissions may be the function of false memories rather than true memories of actual events.
[9] The Crown opposes the admissibility of Professor Moore’s evidence.
II. The Burden and Standard of Proof
[10] The Defence bears the burden of establishing that Professor Moore’s evidence is admissible at trial. The standard is on a balance of probabilities.
III. Analysis
The Legal Principles
[11] Counsel agree on the law. They disagree only on its application in this case.
[12] In R. v. M.C., 2014 ONCA 611, Justice Watt, for the Court of Appeal for Ontario, synthesizes the law in this area, with references to the leading jurisprudence of R. v. Mohan, 1994 80 (S.C.C.) and R. v. Abbey, 2009 ONCA 624. I set out here paragraphs 67 through 79 of the decision in M.C., supra.
The Opinion Rule
[67] The law of evidence distinguishes between fact and opinion. The distinction seems more and ultimately one of convenience rather than of objective reality. All sensory data is mediated by our powers of perception, assimilation and expression. But the distinction remains and is expressed in the rule that generally, but not universally, excludes evidence of opinion.
[68] Among the exceptions to the opinion rule are the opinions of experts. Duly qualified experts may testify about subjects that are within their field of expertise, logically relevant to a material issue in the proceedings, and outside the experience and knowledge of the trier of fact: Mohan, at p. 20.
[69] Experts combine information accumulated from their own work and experience, marry it with evidence adduced through exhibits, admissions and the testimony of other witnesses in the proceedings, and express an opinion about a factual inference that should be drawn from the accumulated materials: Abbey, at para. 71. These opinions are evaluated by the trier of fact, like any other evidence admitted in the proceedings, in determining whether the allegations contained in the indictment have been proven beyond a reasonable doubt.
[70] The factual premise or construct to which the expert applies his or her expertise must be established, however, by evidence that is otherwise properly admissible in the proceedings. Mere reliance by the expert on a state of facts as the basis for his or her opinion does not amount to evidence much less proof of those facts. For example, a psychiatrist proffers an opinion about criminal responsibility based on an account of events provided to him or her by an accused. The account relied upon must be established by other admissible evidence: R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, at p. 46 (Abbey ’82); R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 31; and R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 55. Where the factual premise of the expert’s opinion is not established by otherwise admissible evidence, the opinion is entitled to less, in some cases, to no weight: Abbey ’82, at p. 46; and R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, at p. 893.
[71] Deciding the admissibility of expert opinion evidence involves two steps. The first requires a determination of whether the conditions precedent to admissibility have been met. The second, only undertaken on satisfaction of the first, consists of a cost-benefit analysis that asks whether the benefits of receiving the evidence to a correct decision exceed the costs to the litigation process of admitting the evidence: Abbey, at para. 76.
[72] The criteria applicable to the first step in the admissibility inquiry are:
i. relevance;
ii. necessity;
iii. absence of an exclusionary rule; and
iv. a properly qualified expert.
Mohan, at p. 20; and Abbey, at paras. 75 and 80.
[73] Among the Mohan criteria, two are of particular importance in this case: the absence of an exclusionary rule, and a properly qualified expert.
[74] The absence of an exclusionary rule refers to an exclusionary rule other than the opinion rule itself: Abbey, at para. 80. For example, expert opinion evidence of an accused’s disposition must not contravene the bad character rule.
[75] Whether a proposed witness is a properly qualified expert about subject-matter that is properly the subject of expert opinion evidence is determined on a voir dire after counsel proffering the evidence has defined the nature and scope of the proposed opinion: Abbey, at paras. 62-63; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at pp. 242-244; and R. v. McIntosh (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 104. The trial judge’s task extends beyond deciding whether the proposed expert is qualified to proffer an opinion. The judge should also determine the nature and scope of the expert evidence and ensure that the expert’s reach does not exceed his or her grasp or extend beyond boundaries established by the trial judge: Abbey, at para. 62; R. v. Sekhon, 2014 SCC 15, at paras. 46-47; and Marquard, at pp. 242-244.
[76] An expert may refer to and be cross-examined upon authoritative works in the field. But without express adoption of the content by the expert, the opinions expressed in the works cannot become expert evidence for the trier of fact to consider in reaching their decision: Marquard, at p. 251. A review, even an extensive review by an expert of literature in a related field does not, without more, permit the expert to proffer an opinion on a subject outside the area of the expert’s field of expertise: Mathisen, at para. 126.
[77] Evidence that meets the Mohan criteria will not necessarily be received and available for consideration by the trier of fact. At the second stage, the trial judge exercises a “gatekeeper” function. The judge decides whether the expert opinion evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to that same process that may ensue from the introduction of that very evidence: Abbey, at para. 76. It is only where the benefits gained by the introduction of the evidence predominate over the costs associated with its introduction that the evidence will be admitted.
[78] To determine the “benefits” associated with the introduction of expert opinion evidence, the judge considers the probative value of the evidence, the significance of and the issue to which the evidence is relevant. Potential probative value includes an assessment of the reliability of the evidence, not merely of its subject-matter, but also the expert’s methodology, expertise and objectivity: Abbey, at para. 87.
[79] On the “cost” side, the trial judge considers the consumption of time, prejudice and confusion. The trier of fact may not be adequately equipped to effectively and critically assess the evidence. The underlying material may be complex, the witness’ jargon impenetrable, and the evidence resistant to effective cross-examination: Abbey, at para. 90
The Law as Applied to the Facts in this Case
The First Step – Conditions Precedent to Admissibility
[13] There is much common ground between counsel with regard to the criteria applicable to the first step. The Crown concedes that Professor Moore is a properly qualified expert. And the Crown concedes that there is no exclusionary rule in play here.
[14] I agree with both of those concessions by the Crown. Professor Moore is the Chair of the Department of Psychology at Glendon College/York University. He has been a frequent lecturer on memory-related subjects at events for judges and lawyers. He teaches in the area of psychology and the law. He has extensive publications, some of which are devoted to memory-related subjects, all outlined in his impressive curriculum vitae (Exhibit 1 on the voir dire). He has given expert opinion evidence many times in Ontario, at both levels of Court, in the same areas being suggested in this case. He is, undoubtedly, a properly qualified expert.
[15] The absence of an exclusionary rule refers to something other than the opinion rule itself. There is no exclusionary rule here.
[16] So the first step of the admissibility inquiry boils down to relevance and necessity.
[17] The Crown submits that Professor Moore’s evidence is not relevant. I disagree.
[18] Logical relevance has been established. There is a relationship between the evidence (Professor Moore’s report was marked Exhibit 2 on the voir dire) and the fact in issue that it is tendered to establish (that what J.F. said to the police officer was the product of false memories rather than true memories of actual events). It matters not that the Professor cannot say more than he has in the report, that is that it is possible that J.F.’s memories of what happened between him and C.S. are illusory. The link still exists. It is not necessary that the tendered expert opinion evidence be expressed with certainty. It is enough that it, arguably, tends to prove the fact in issue. Although it is a relatively close-call in this case, I find on balance that Professor Moore’s evidence crosses the hurdle of logical relevance. What ultimate weight I give to that evidence is yet to be determined.
[19] On the issue of legal relevance, the Crown does not argue that Professor Moore’s evidence is misleading or unduly prejudicial or that it involves an inordinate amount of time. The only argument advanced by the Crown is that it has no probative value. I disagree.
[20] In the absence of the Professor’s evidence, the Defence would not be able to argue in closing submissions that J.F.’s seemingly inculpatory admissions to the police officer are unreliable because they may have been the product of false memories. First, that would be wholly speculative. Second, I would be unfamiliar with what false memories are, how they are created, how they manifest themselves, and so on.
[21] Professor Moore’s evidence has some probative value in that it provides some evidentiary foundation for the prospect that J.F.’s admissions were based on false memories, and it helps me understand the concept of illusory memory.
[22] With regard to necessity, the Crown submits that I do not need Professor Moore’s evidence to decide whether J.F.’s statement is reliable. With respect, I think that the said submission oversimplifies the purpose of the proposed expert opinion evidence.
[23] It is true that I, as a judge, decide issues of credibility and reliability virtually every day. But I know nothing about the psychology of memory. I know nothing about false memories versus true ones. Those are the issues that I need assistance with. And that assistance can come from Professor Moore. I will ultimately decide how much weight, if any, to place on the statement of J.F. to the police. That is my domain. Professor Moore will not be permitted, nor does he intend from a review of his report, to usurp my function as the trial judge and the ultimate arbiter of credibility and reliability.
[24] Put another way, I conclude that the evidence of Professor Moore is necessary (not merely helpful) to allow me to appreciate the facts, due to their technical nature. Those facts surround the issue of whether J.F.’s recounting to the police of what happened (or what he thinks might have happened) was the product of false memories. I am unlikely to be able to form a correct judgment on that matter without the help of Professor Moore’s special knowledge.
[25] Again, this is a relatively close-call. The Crown makes a powerful argument that Professor Moore’s evidence may not be of much value if, in the end, it can be used by both sides equally to support its theory of whether J.F.’s statement to the police amounts to a true/false confession. Still, however, I am of the view that I need Professor Moore’s evidence to understand the psychological concepts so that I can be informed enough to make my own correct judgment of what weight, if any, to place on that statement.
[26] I am satisfied, on balance, that Professor Moore’s evidence is relevant and necessary.
The Second Step – Cost-Benefit Analysis
[27] This issue was not pressed by the Crown in submissions. The “cost” of admitting the proposed expert opinion evidence is minimal. There is no suggestion that I will be overwhelmed or confused by it. The risk of undue prejudice is not alleged by the Crown. The time required to receive the evidence is slight. With the application of the evidence adduced on the voir dire to the trial proper (on consent of both sides), not much more needs to be said. The expert evidence, in its entirety, will be completed in less than one full day.
[28] I have already addressed the benefits of admitting the evidence of Professor Moore. On balance, those benefits outweigh the cost.
IV. Conclusion
[29] For all of the foregoing reasons, despite the able submissions made by Mr. Leger for the Crown, I find that the Defence has established on a balance of probabilities that the proposed expert opinion evidence of Professor Moore is admissible, and I make that ruling.
Conlan J.
Released: May 13, 2015
CITATION: R. v. J.F., 2015 ONSC 3067
COURT FILE NO.: CR-14-280
DATE: 20150513
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
J.F.
Defendant
REASONS FOR DECISION – ADMISSIBILITY OF DEFENCE EXPERT OPINION EVIDENCE
Conlan J.
Released: May 13, 2015