Court File and Parties

COURT FILE NO.: CR-14-70000117-0000 DATE: 20170426 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Applicant – and – CHRISTOPHER STATES Respondent

Counsel: Glen Crisp, for the Crown Anik Morrow, for the Respondent

HEARD: April 25, 2017 at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling No. 2: Ruling on the Qualification of Dr. Mark Pearce as an Expert Witness

[1] Dr. Mark Pearce appeared before the Court this morning called by the Crown to give expert opinion evidence relating to his assessment of Christopher States performed by my order pursuant to section 752.1 of the Code.

[2] Dr. Pearce’s extensive resume was entered as Exhibit 1 on a voir dire conducted to determine whether he was qualified to give opinion evidence as an expert forensic psychiatrist, including in relation to risk of offending or reoffending.

[3] The question of whether Dr. Pearce is qualified to give an opinion on these subjects is governed by well-known legal tests which ask whether he possesses special knowledge or experience going beyond that of me as the trier of fact that permits him to give his expert opinion evidence to assist the Court in resolving questions that lie before it. The question is to be decided on a balance of probabilities standard.

[4] There is no issue here between counsel that the area of forensic psychiatry and the specially developed tools and instruments that it uses, in combination with the experience and training of the expert, to determine the extent to which this offender is presently at risk of offending or reoffending from a psychiatric perspective is something on which I require the opinion of an expert.

[5] These are not matters that lie within the ken or ordinary factual knowledge of judges like me and thus the Court requires the benefit of this opinion evidence to permit it to determine the legal question at issue. That legal question is whether Mr. States qualifies under the Criminal Code as a dangerous offender, and if so, whether he should be sentenced to an indeterminate sentence, or whether, as defence counsel claims, he can safely be sentenced to some determinate period of detention combined with a long-term supervision order without putting the public safety at risk.

[6] As the procedure requires, Dr. Pearce was examined in chief by Crown counsel and then extensively cross-examined by defence counsel, who plumbed deeply into Dr. Pearce’s education, licensing, day-to-day experience, the proportions of his practice that are composed of offender risk assessments such as he has performed here, as distinct from other aspects of his practice including the diagnosis, assessment and treatment of persons who may be NCR or to determine fitness to stand trial.

[7] It is clear from that testimony that Dr. Pearce is a highly-qualified psychiatrist. He plainly has training and experience in both clinical and forensic contexts with the diagnosis and treatment of psychiatric disorders as described in the DSM Manual. However, he has chosen to specialize in practice as a forensic psychiatrist, and was specifically granted his Forensic Psychiatrist Certification by the Royal College of Physicians and Surgeons of Canada in 2013. He also has extensive education, background, and clinical training, including in the administration and use of several of the important actuarial instruments that are of evidential importance in determining risk of recidivism, the VRAG, PCL-R and HCR-20 instruments. There are others he uses in connection with assessments of other offenders in a sexual context, or in the case of youthful offenders but they are not relevant here.

[8] It may be that there are other instruments that are capable of being used in such an assessment process but that he has chosen to focus on these instruments, since as he testified, in his opinion they are the best validated instruments. That may be a subject of disagreement by defence counsel, but if so, the fact that he has chosen to use and be trained in these specific instruments does not undermine his qualifications as an expert, because there is no perfect mold that all forensic psychiatric assessors will conform to. All are a product of their own unique educations, training, licensing, certification, continuing education efforts, and of course the influences on their professional judgment of those who taught them, and the manner in which they were taught.

[9] The question here on which counsel debated extensively, more than required in my view, is the particular description of the exact area of expertise. It should be obvious that the party seeking to qualify an expert witness should define with precision the scope of her proposed expertise. As Dulong v. Merrill Lynch Canada Inc. shows, relying on R v. Marquard, this is important both in terms of the initial admissibility inquiry as well as for the orderly reception of the expert’s viva voce evidence, i.e. such a clear definition is required in case, as frequently happens, an objection is made that the witness is going beyond the area in which he or she was qualified to give expert opinion. As Lamer J. put it in Marquard at p. 78:

The proper practice is for counsel presenting an expert witness to qualify the expert in all the areas in which the expert is to give opinion evidence. If this is done, no question as to the admissibility of their opinions arises.

[10] I find that Dr. Pearce is plainly qualified to provide his opinion in this criminal context in all areas of forensic psychiatry, and based on the information he reviewed, his interviews with Mr. States, and his experiential professional opinion on Mr. States and taking account of the testing and assessments he conducted, he is entitled to provide his opinion on Mr. States’ risk of offending or the risk of reoffending were he to be released into the community now or in the future. That obviously takes into account the entirety of his professional background applied to the question at hand. It may be that he has more experience in one area or another, but those are matters of argument relative to the weight of his opinion, not matters that relate to qualification as an expert.

[11] Specifically, on the basis of the foregoing findings and the evidence on the voir dire, I accept Dr. Pearce as “an expert in the assessment, diagnosis, and treatment of psychiatric disorders as described in the DMS, in both a clinical and forensic context, and also as an expert forensic psychiatrist qualified to opine in this criminal context on the risk of this offender offending or reoffending and to testify on all foundational elements that underlie his opinions on that issue.”

Michael G. Quigley J. Released: April 26, 2017