CITATION: R v. H.L, 2017 ONSC 5599
COURT FILE NO.: CRIMJ(P)1850
DATE: 2017 09 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Fedak-Tarnopolsky, Counsel for the Crown
- and -
H.L
A. Mamo, Counsel for the Accused
HEARD: September 19, 2017
RULING RE: EXPERT EVIDENCE
D.E HARRIS J.
[1] On this trial alleging sexual assault and sexual interference, the Crown applies to admit expert evidence with respect to “suggestibility” and “acquiescence to leading questions” of the complainant. This evidence is summarized in a report authored by Dr. Jo-Anne Finegan, a clinical psychologist who examined the complainant.
[2] In other parts of Dr. Finegan’s report, it is documented that the complainant suffers from intellectual disabilities (referred to by her as ID). It is said that the complainant, now 18 years old and 14 years old at the time of the alleged offence, functions on the level of a 4-7 year old child, depending on the tasks involved. This clinical finding is not challenged by the defence. It is only the evidence with respect to suggestibility which is at issue in this ruling.
[3] As I understand it, at the preliminary hearing the complainant adopted, with short responses, leading questions posed to her by defence counsel in cross-examination. Some of these were inconsistent with previous statements made by her. By adducing the expert evidence proposed, the Crown seeks ultimately to explain away these inconsistencies by virtue of a propensity to simply acquiesce to suggestions put to her. It is implicit in the tendering of the expert evidence that these inconsistent answers are not always reliable and ought not to be accorded significant weight against the complainant’s reliability or credibility.
[4] It is my conclusion that, in the end, this application for admission of expert evidence founders on the necessity condition for expert evidence. To admit this evidence would be contrary to the leading expert evidence jurisprudence accumulated over several decades.
[5] The best place to begin is the discussion of necessity in the seminal case of R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. Justice Sopinka set out the four criteria for admission of expert evidence at paragraph 17:
a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; (d) a properly qualified expert.
[6] The necessity precondition is perhaps the salient characteristic of expert evidence. If expert evidence is not of substantial assistance to the finder of fact to the point of necessity, it is overborne by the dangers it brings with it. Evidence which does not clear the necessity threshold could pose serious dangers to the integrity of the process and cannot be permitted.
[7] In elaborating on the condition of necessity, Justice Sopinka in Mohan adopted the words of Dickson J. in Abbey, quoting from p. 42 of that case:
21… With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.)
[8] Justice Sopinka carried on in the same vein:
22 …In Kelliher (Village of) v. Smith, 1931 CanLII 1 (SCC), [1931] S.C.R. 672, at p. 684, this Court, quoting from Beven on Negligence (4th ed. 1928), at p. 141, stated that in order for expert evidence to be admissible, "[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge". More recently, in R. v. Lavallee, supra, the above passages from Kelliher and Abbey were applied to admit expert evidence as to the state of mind of a "battered" woman. The judgment stressed that this was an area that is not understood by the average person.
23 As in the case of relevance, discussed above, the need for the evidence is assessed in light of its potential to distort the fact-finding process. As stated by Lawton L.J. in R. v. Turner, [1975] Q.B. 834, at p. 841, and approved by Lord Wilberforce in Director of Public Prosecutions v. Jordan, [1977] A.C. 699, at p. 718:
"An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does."
[9] Justice Sopinka identified the primary dangers of expert evidence not shown to be necessary as usurpation of the functions of the trier of fact, the potential for a war of experts and concern for the ultimate issue (see paras. 24-25. Also see R. v. Abbey 2009 ONCA 624, [2009] 97 O.R. (3d) 330 (C.A.) per Justice Doherty at paras. 71-72.)
[10] An important case on necessity in the expert evidence context is the Supreme Court of Canada’s judgment in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275. The issue in that case was the admissibility of expert evidence to detail the psychological reasons for delayed disclosure by a young complainant in a sexual assault prosecution. The majority per Major J., held that the evidence was inadmissible and that a charge to the jury on the subject could be used to educate the jury and ensure that the fact of delayed disclosure was properly understood. See paragraphs 46-51, 70
[11] Turning to the application of necessity in this case, I would say that the argument for admission of expert evidence in D.D. was substantially stronger than in the case before me. Yet it was unsuccessful. The average jury member may well fall into the trap of believing a delay in reporting a sexual crime inevitably diminishes the witness’s reliability and credibility. The expert evidence is designed to answer this misconception, one which seems intuitive enough on superficial examination. Indeed, the dissenting judges in D.D. thought the evidence was necessary to dispel this misconception.
[12] But the majority in D.D. disagreed and concluded:
58 In my view, the content of the expert evidence admitted in this case was not unique or scientifically puzzling but was rather the proper subject for a simple jury instruction. This being the case, its admission was not necessary.
[13] Similarly, there is nothing unique or unusual about the proposition advanced by the Crown here: children or an adult suffering from ID and operating at the 5-7 year old range are especially susceptible to suggestion and may well acquiesce to leading questions, particularly in stressful or unfamiliar situations, like in a courtroom setting.
[14] This basic truth would come as no surprise to an adult and especially not to a parent. Any one sensitive and attune to children and how they behave knows of the possibility of suggestibility. I would characterize it as a commonplace. It is well accepted—perhaps even notorious. No expert evidence assistance is required to bring it home to a jury or judge.
[15] The Crown Applicant submitted that there is evidence in the report that an adult with ID is not the same as a child of the same level of mental function. Accepting that this might be true, the way I read it, it is at the most a subtle difference and of little practical significance.
[16] Beyond the appreciation of the ordinary lay person, judges are very well versed in the dangers created when leading questions are asked of children or of vulnerable, fragile witnesses. It is a basic part of our experience as lawyers too. The courtroom is probably one of the best real life laboratories in which to observe the effect of leading questions on different types of witnesses.
[17] Attempts to admit expert evidence on the subject of human behaviour have rarely been successful. Some of the authorities have been collected by Doherty J.A. in Abbey, supra at para. 72 and include: R. v. McIntosh [difficulty in making cross-racial identifications] (1997), 1997 CanLII 3862 (ON CA), 35 O.R. (3d) 97, [1997] O.J. No. 3172 (C.A.), at pp. 101-103 O.R., leave to appeal to S.C.C. refused R. v. McCarthy, [1998] 1 S.C.R. xii, [1997] S.C.C.A. No. 610 (leave sought by second appellant in McIntosh, Mr. McCarthy); David M. Paciocco, "Coping With Expert Evidence About Human Behaviour" (1999) 25 Queen's L.J. 305, at pp. 307-308; S. Casey Hill et al., at para. 12:30.10; R. v. Olscamp, 1994 CanLII 7553 (ON SC), [1994] O.J. No. 2926, 95 C.C.C. (3d) 466 (Gen. Div.), approved in R. v. L. (E.A.), 1998 CanLII 17666 (ON CA), [1998] O.J. No. 4160, 130 C.C.C. (3d) 438 (C.A.), at para. 24 [behavioural characteristics of children which are symptomatic of abuse]; Ontario, Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin, vol. 1 (Toronto: Queen's Printer, 1998), at pp. 311-24
[18] There are few examples of expert behavioural evidence being admitted although there are of course some. One broadly analogous area which it strikes me might well be appropriate for expert testimony is with reference to exotic neurological disorders. The late neurologist Oliver Sacks wrote a book of popular case studies from his own practice entitled, “The Man who Mistook his Wife for a Hat: And other Clinical Tales” Touchstone; (April 2 1998). It strikes me that, if it were relevant, a jury or judge could very much use assistance in appreciating the reasons a person might misperceive another person as a hat. This is an arcane subject matter, well beyond the ken of lay people or judges. The distinction between this and the area proposed by the Crown here for expert evidence is self-evident. This somewhat off topic example, serves to reinforce my view that the evidence here, as defence counsel submitted, pertains to a subject matter which is “generic.”
[19] If this were a jury case, I would be careful and thorough in explaining to the jury the theme of susceptibility to leading questions as it might apply to a witness functioning at the age 5 to 7 year level. This would be more effective, more economical and much safer than the admission of expert evidence on the subject (this was the conclusion of the courts in D.D. supra and R. v. McIntosh, supra)
[20] As this would be imparted to a jury in a charge, so too can I instruct myself on it. I will do that during the complainant’s evidence and expressly at the end of the case. Of course at this stage I do not know precisely how the evidence will play out. Suggestibility will depend on the particular features of the complainant, the circumstances of the original event, its aftermath and the context of the questioning, amongst other things.
[21] The Crown argued that without the expert evidence, I would have to take judicial notice of the suggestibility of young children. I do not agree with this submission. It is a matter of both general experience and judicial experience and does not rely on the doctrine of judicial notice.
[22] On the subject of material to assist in directing myself in this regard, there is considerable judicial commentary on the credibility and reliability of children to draw upon. Here I refer specifically to R. v. W. (R.) 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, in which Justice McLachlin as she then was said:
25 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, 77 C.R. (3d) 347, 56 C.C.C. (3d) 200, 111 N.R. 31, 86 Sask. R. 111, at pp. 54-55 [S.C.R.], when, in referring to submissions regarding the Court of Appeal judge's treatment of the evidence of the complainant, she said that:
[I]t seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the 'reasonable adult' is not necessarily appropriate in assessing the credibility of young children.
[23] Lastly, it could not and has not been argued that the admission of expert evidence should be evaluated differently because this is a judge alone trial. The Supreme Court in R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 said,
46 Given the concerns about the impact expert evidence can have on a trial -- including the possibility that experts may usurp the role of the trier of fact -- trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges -- including those in judge-alone trials -- have an ongoing duty to ensure that expert evidence remains within its proper scope.
(Emphasis Added)
[24] It is for these reasons that I am ruling the evidence tendered by the Crown to be inadmissible.
D.E HARRIS J.
Released: September 21, 2017
CITATION: R v. H.L, 2017 ONSC 5599
COURT FILE NO.: CRIMJ(P)1850
DATE: 2017 09 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
H.L
REASONS FOR JUDGMENT
D.E HARRIS J.
Released: September 21, 2017