Court File and Parties

OSHAWA COURT FILE NO.: 15/13823 DATE: 2017-01-18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – KEENAN CORNER Applicant/Defendant

Counsel: K. Saliwonchyk and L. Crawford, for the Crown K. Heath and J. Penman, for the Applicant/Defendant

HEARD: January 12 and 13, 2017

Publication Ban

PUBLICATION BAN Contents cannot be published, broadcasted, or transmitted pursuant to an order of Justice of the Peace A. Forestall, dated November 30, 2015 under section 517 and 539(1) of the Criminal Code and Justice M. McKelvey, dated December 1, 2015 under section 648 of the Criminal Code.

Ruling Re: Admissibility of Expert Evidence

MCKELVEY J.:

[1] The defendant in this action, Keenan Corner, is charged with second degree murder arising out of the death of Mr. Shabir Niazi. Mr. Niazi was shot to death on the afternoon of February 19, 2014. Initially Mr. Corner denied any responsibility for the shooting. However, in an agreed statement of facts which is to be filed at the commencement of trial, Mr. Corner is now admitting that he was the person responsible for shooting Mr. Niazi. The defence has advised that it will be relying on self-defence and provocation as potential defences in the action. The defence has brought an application seeking to introduce expert opinion from a psychiatrist. A voir dire was held to determine the admissibility of the evidence.

[2] In its factum, the defendant has set out information which reflects evidence that it anticipates the jury will hear at trial. This evidence is as follows:

(a) The applicant and the deceased were close friends; (b) The applicant and the deceased were dealing marijuana together; (c) The applicant had consumed large amounts of marijuana on February 19, 2014 and regularly smoked marijuana up to the date of the incident; (d) The applicant and the deceased were in the garage where a firearm was also present; (e) An altercation ensued between the applicant and the deceased; (f) The deceased did things which caused the applicant to fear for his life; (g) The applicant, out of fear for his life, fired the gun.

The Proposed Expert Evidence

[3] The defence wants to call Dr. Julian Gojer who is a psychiatrist to provide an opinion on the following issues:

(a) A fight or flight reaction; and (b) The effects of marijuana.

[4] Dr. Gojer prepared a two page report which was filed at the voir dire. He also gave evidence on these two issues during the voir dire.

[5] In cross-examination, Dr. Gojer confirmed that he has never interviewed Mr. Corner nor does he know anything about the evidence in this case. He has not reviewed any material about the case and was asked in a telephone call from defence counsel to explain the fight/flight reaction and the effect of marijuana consumption. In response he provided opinions which answer the questions asked without any reference to this case.

[6] In his evidence and in his report, Dr. Gojer describes the fight or flight response which is a physiological reaction that occurs in response to a perceived harmful event or attack. Dr. Gojer describes the physiological changes which occur. These involve the release of adrenaline and cortisol which increase a person’s heart and respiration rate and breaks down glucose in the body in preparation for physical activity.

[7] Dr. Gojer stated that the release of hormones can cause a variety of effects such as the over estimation or under estimation of perceived control and the attribution of hostility to ambiguous situations. Further the condition can cause tachypsychia which is a feeling that time was either increased or slowed down. He stated that it is common for an individual experiencing this condition to have serious misinterpretations of their surroundings during the events.

[8] With respect to marijuana, Dr. Gojer testified that it is a commonly used drug whose effects are generally benign and often produce relaxation. Some side effects of marijuana include altered perception, change in mood, altered sense of time and space, impaired memory, paranoia and auditory/visual illusions. He further stated that high levels of marijuana can affect cognitive function, increase anxiety and in extreme situations may cause individuals to develop paranoid ideations which involve a belief that others mean ill will or harm to them. It can also result in a psychotic state with paranoid persecutory delusions with hallucinatory experiences resembling schizophrenia.

[9] In cross examination Dr. Gojer agreed that there is little consistency in terms of how a person might react to the fight or flight reaction. Some persons may fight while others may flee. He also agreed that the fight or flight reaction is very common. It is a basic instinct in all animals and almost everyone has experienced this reaction in their lifetime. While he agreed that the reaction is quite common, he suggested that people may need to have an explanation given to them to properly understand the response. He agreed that he was not able to say anything particular about Mr. Corner’s fight or flight response in this case but suggested that if he was provided with more information he might be able to provide some explanation as to what may have occurred in this case. He stated that with more facts he might be able to provide a higher level of certainty on a likely cause of Mr. Corner’s actions.

[10] In cross examination on the use of marijuana, Dr. Gojer agreed that it is a widely used drug in Canada. Forty-three percent of Canadians have tried it and a third have tried it more than once. Dr. Gojer agreed that the effects of marijuana varies by individual as well as the amount and quality of the drug consumed. The active components of the drug can vary considerably because its distribution is generally unregulated. He also agreed that marijuana is a recreational drug which is benign in most people but at high levels can cause increased anxiety and affect perception and an ability to react.

[11] In its submissions, the defence argued that the evidence of Dr. Gojer is required to assist the jury in understanding how the fight or flight reaction and the consumption of marijuana may have affected the accused’s actions at the time of the shooting. The Crown opposes the admission of Dr. Gojer’s testimony.

The Applicable Legal Principles

[12] In R. v. Mohan, [1994] 2 S.C.R. 9, the Supreme Court set out the basic requirements for the admission of expert evidence. These requirements are relevance, necessity, the absence of an exclusionary rule and a properly qualified expert. These requirements were reviewed and refined by the Ontario Court of Appeal in R. v. Abbey, 2009 ONCA 624, [2009] 97 O.R. (3d) 330. In that decision, Justice Doherty outlined a two stage process which a court should follow. In the first phase, Justice Doherty stated that four preconditions to admissibility must be established as follows:

1. The proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;
2. The witness must be qualified to give the opinion;
3. The proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and
4. The proposed opinion must be logically relevant to a material issue.

[13] At the second stage the court is required to act as a “gate keeper” by balancing the benefit and costs of the proposed expert opinion. In the Abbey case the court of appeal treated “necessity” not as a precondition to admissibility but as part of the “cost benefit” analysis to be evaluated at the gate keeping stage.

[14] The Abbey analysis was largely endorsed by the Supreme Court of Canada in its decision in White Burgess v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. However, in that decision the court emphasized that the four Mohan factors which include necessity are threshold requirements. Evidence that does not meet those threshold requirements should be excluded. Thus, necessity is a threshold requirement which must be met before considering the gate keeper analysis.

[15] In the R. v. Abbey decision, the court of appeal outlines some basic legal principles which apply. At paragraph 71 it notes that expert evidence is presumptively inadmissible. The party tendering the evidence must establish its admissibility on the balance of probabilities. Thus, the onus is on the defendant to satisfy this court that Dr. Gojer’s opinions are admissible on a balance of probabilities.

[16] Further, at paragraph 62 of the Abbey decision Justice Doherty states that the admissibility inquiry is not conducted in a vacuum. He goes on to comment that, “Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence”. This makes sense because in the absence of knowing what the proposed evidence is a court is not going to be in a position determine whether the criteria for admissibility have been satisfied.

[17] I have concluded that it is impossible for me to draw a firm conclusion on the admissibility of Dr. Gojer’s opinion because of the evidentiary vacuum which exists in this case.

[18] The major evidentiary vacuum relates to the fact that we do not have an adequate or reliable summary of Dr. Gojer’s proposed evidence. In their submissions the defence argued that Dr. Gojer’s proposed evidence will be clarified and refined based on hypotheticals which will in turn be based on evidence which it expects to adduce from the accused at trial. It is clear, therefore, that we do not have a complete or accurate summary of the opinions which Dr. Gojer will express if he is called as a witness at trial.

[19] It is also apparent that there is a vacuum in terms of how Dr. Gojer’s evidence could apply to the facts of this case. The facts as set out in the defendant’s factum and as quoted above do not directly raise issues which would properly engage the opinions of Dr. Gojer. All we know about the alleged circumstances of the shooting is that an altercation occurred between the accused and the deceased and that the deceased did things that caused the applicant to fear for his life. There is no information, for example of any altered perception on the part of Mr. Corner nor any evidence of hallucinations or altered perceptions of time or reality. Further, there is no information suggesting a fight or flight reaction occurred.

[20] As noted in the Abbey decision threshold relevance refers to the requirement that the proposed evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence. It is apparent that without a proper evidentiary background as to what the defence says occurred at the time of the altercation and without the benefit of knowing what Dr. Gojer’s evidence will be at trial it is not possible to assess whether the threshold criteria have been satisfied or not. Further, without a clear understanding of the opinions of Dr. Gojer as they will be presented at trial, it is not possible for the court to exercise its gate keeper function by considering the potential benefits and costs of his evidence.

[21] The defence points to the fact that under section 657.3(3) of the Criminal Code the defence has until the closing of the case to provide to the Crown a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based. I accept that this is a correct statement of the law. However, this does not mean in my view that an application brought at an earlier time is excused from the need to provide to the court a proper evidentiary foundation to justify the admissibility of the expert evidence.

[22] The lack of a proper evidentiary foundation was raised during the course of argument during the application. The defence maintained its position that there was an adequate basis for the application and that the opinions could be refined during the course of Dr. Gojer’s evidence after the accused has testified. I disagree with that position. In my view the court is not in a position to adjudicate on the merits of the application without a proper evidentiary foundation and a complete summary of Dr. Gojer’s anticipated evidence. For that reason, I have concluded that the defendant’s application must be dismissed.

[23] While I have concluded that the application should be dismissed on that basis I would propose to make some obiter comments based on the other arguments which were presented during the course of the application and which relate to the subject matter of Dr. Gojer’s proposed evidence.

Dr. Gojer’s Evidence of the Fight or Flight Reaction

[24] The admissibility of Dr. Gojer’s opinions may depend largely on an analysis of necessity. In R. v. Mohan, the meaning of necessity for the purposes of admitting an expert opinion is defined to be information which is likely to be outside the experience and knowledge of a judge or a jury (para. 22).

[25] In R. v. Marquard, [1993] 4 S.C.R. 223, the Supreme Court noted that,

While expert evidence on the ultimate credibility of a witness is not admissible, expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact.

[26] A critical issue in this case, therefore, is whether Dr. Gojer’s evidence will go beyond the ordinary experience of the trier of fact. Dr. Gojer proposes to give detailed evidence with respect to the physiological reactions which are involved in a fight or flight reaction. He also proposes to give evidence on possible effects for a person undergoing a fight or flight reaction. However, as acknowledged in his evidence the fight or flight reaction is a basic animal instinct which almost everyone has experienced. For this reason I believe a jury will be able to use their collective common sense and life experience to evaluate the potential impact that the fight or flight response may have had on Mr. Corner’s state of mind at the time the incident occurred.

[27] In R. v. Henderson, [2016] O.J. No. 5881, Justice Bird dealt with a similar situation involving a proposed opinion from Dr. Gojer as to whether past trauma explained why the accused in that case reacted so violently to the events that occurred prior to the killing. The court referred to the Manitoba Court of Appeal decision in R. v. Whiteway, [2015] N.J. No. 57. In that case the defence was permitted to call evidence at trial from a psychiatrist who testified that because the accused was grieving the recent murder of a friend the accused was not capable of organizing his thoughts and considering a plan of action. On appeal, the court stated that the trial judge did not need testimony from a psychiatrist to consider the impact of the appellant’s reaction to ordinary stress from an external cause. It expressed serious doubts that the expert opinion was admissible at all in the trial because it did not meet the criteria of necessity due to the effect grief plays on a normal person is not beyond the knowledge or experience of a judge or jury.

[28] Similarly in this case I question whether the jury will need the specialized assistance of a psychiatrist to consider Mr. Corner’s possible reaction to a stressful event which might result in a fight or flight reaction.

[29] I am inclined to echo the comments of Justice Corbett in R. v. Liard, [2013] O.J. No. 4000 where he states,

Dr Gojer’s anticipated evidence is not admissible because it is not necessary to assist the jury. Rather, it is a summary of conclusions about Mr Lasota’s reactions to stresses and difficulties in his life. The jury is able to assess these circumstances without Dr Gojer’s evidence. Further, the value of this evidence is greatly overborne by factors militating against its admission. It is oath-helping, in that it would repeat and support Mr Lasota’s own anticipated testimony, but on the basis of Mr Lasota’s own statements to Dr Gojer. It tends to dress up matters of common experience in the cloak of expertise, giving rise to a fear that the jury would give undue weight to the opinion. And, if admitted, it would open the door to the Crown calling its own expert to offer alternative views, unduly lengthening the trial, and tending to reduce the jury to umpire status, selecting between competing inferences offered by experts.

Proposed Opinion with Respect to the Consumption of Marijuana

[30] It is difficult to come to any firm conclusions about Dr. Gojer’s proposed evidence on the effects of marijuana. The Crown points to the fact that marijuana is a recreational drug which is commonly used in Canadian society. It is reasonable to anticipate that a significant number of jurors who might serve in this case have experience with marijuana and are familiar with its common effects on a user. However, I am left to query whether some of the less common effects of marijuana as set out by Dr. Gojer in his opinion would be known to the jury. For example the suggestion that in pre-disposed individuals there may be a tendency to develop a frank psychotic state with paranoid persecutory delusions or with hallucinatory experiences resembling schizophrenia may not be generally known. The likely issues here are related to relevance and necessity. There is no indication in the information provided by the defence that any specific symptom was experienced by Mr. Corner at the time of the alleged altercation. Without some basis to believe that such a condition occurred it would be premature to draw any firm conclusions with respect to the relevance of Dr. Gojer’s opinion. Further, necessity might be a factor here depending on the effect which marijuana is alleged to have caused. In the absence of knowing what is alleged to have occurred at the time of the altercation and Dr. Gojer’s opinion it is premature to draw any firm conclusions with respect to the evidence Dr. Gojer might give on this issue.

Conclusion

[31] For the reasons previously given, the defence application is dismissed.

Justice M. McKelvey Released: January 18, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – KEENAN CORNER Ruling re: admissibility of expert evidence Justice M. McKelvey Released: January 18, 2017